HL Deb 12 May 2004 vol 661 cc115-80GC

(Second Day)

The Committee met at half past three of the clock.

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

The Deputy Chairman of Committees (Lord Haskel)

I should like to say first that there is a revised list of groupings that includes the amendments that have already been debated. The previous list did not, which was a little confusing, as the first two amendments were excluded, but the revised list includes them. So we shall be working from the revised list and I wanted to ensure that everyone has received it.

Clause 3 [Eligibility]:

[Amendments Nos. 15 and 16 not moved.]

Baroness Wilcox moved Amendment No. 17:

Page 2, line 35, leave out paragraph (d).

The noble Baroness said: This is a probing amendment that would alter Clause 3, which outlines categories of eligibility for registering a civil partnership. The Bill as drafted requires that people thinking of entering civil partnerships are of the same sex, not lawfully married or already in a civil partnership and over 16. Our amendment focuses on the last requirement by leaving out the provision on prohibited degrees of relationship. That goes directly to the heart of an issue that threatens to turn a Bill that is aimed to be about justice for a group of people who live in long and stable relationships but who cannot legally marry, into a Bill that highlights and perpetuates an injustice to other people who have made similar life choices to live together and to care for each other but who, equally, cannot marry.

The Committee will be familiar with the argument, with which I know that many noble Lords—although, sadly, it seems not on the government Front Bench— sympathise. Let me be quite clear where I am coming from. I made that clear on Second Reading. I said then, and I say now, that I welcome the intent behind the Bill, as it is tackling issues of discrimination. I understand the force of feeling and sense of injustice that motivates those who have proposed it. I recall a powerful speech in the Chamber some years ago, when the noble Lord, Lord Alli, spoke passionately about the unfairness that inheritance tax might drive a partner from a shared home when the other partner died. The noble Lord spoke from the heart that day.

Many noble Lords have recalled the tragic death of Lord Montague of Oxford, which was referred to the day before yesterday by my noble friend Lady O'Cathain. I would like to think that he and all those who support the Bill would have a shared feeling for the same burning sense of injustice felt by those about whom I speak again under this amendment. There should be no conflict between the people of whom I speak and the proponents of the Bill. The Government should not be allowed to play one group off against the other.

The Government said the day before yesterday that this is a Bill about relationships, not finance. That is a cop-out, and a pretty unconvincing one to me. I said on Second Reading that the financial implications of the Bill, which are massive—as, day by day, our discussion in Committee makes clear—should be explored and debated alongside the relationship legislation. That must be so; it cannot be otherwise. Even an increasingly disjoined Government must see that. Indeed, the proponents of the Bill accept that; they know that the Bill has financial implications, both good and bad. The noble Lord, Lord Alli, for whom I have the utmost respect, was wrong to say the day before yesterday that the House could not discuss those financial matters. Of course we can, although the other place has the final say on matters of finance.

Our society offers financial advantages to those who are married—sadly, and troublingly, increasingly few advantages; but advantages none the less. They include, not least, as we discussed, exemption from the vile and destructive inheritance tax on the death of a spouse. It offers those advantages in return for the recognition of the aspiration towards lifelong union that two people stand and make together in public. The people who make that commitment accept responsibility, make sacrifices and become in many other ways financially worse off. For better for worse, for richer for poorer, in sickness and in health—the words are not so bad even four and a half centuries down the line.

Perhaps there are some things that are not out of place even in new Labour's modern Britain. If that is the spirit that illumines this Bill, it would be a great thing indeed. Married couples accept, for example, that they will be worse off in relation to many benefits and, indeed, in relation to pensions, than two single people living separately. We will no doubt explore that later in Committee.

The financial consequences of a vow of lifelong partnership are inextricably bound to the reality of that relationship. You cannot pretend otherwise; those who are behind this Bill recognise that. Indeed, Stonewall is explicit in saying it accepts that in some cases civil partners will be financially worse off, just as they will benefit from other changes such as inheritance tax. So let us have no humbug about this. The Government should bring forward, and be ready to debate fully, honestly and openly, the explicit Financial implications of the Bill, as we asked them to do at Second Reading. We still reserve the right to table amendments at a later stage to explore this.

There was some discussion of inheritance tax in Committee the day before yesterday. The noble Lord, Lord Goodhart, somewhat brutally said that extending the ambit of civil partnerships rendered the Bill a tax avoidance scheme. Do I take it, therefore, that the Liberal Democrat Party opposes an exemption from inheritance tax for civil partners? The noble Lords, Lord Alli and Lord Tebbit, and the noble Baroness, Lady O'Cathain, more humanely were clear that inheritance tax must be an issue. Will the Minister confirm that it is the Government's intention that civil partners should be exempt from inheritance tax in the same way as married couples now are? If that is the case, a great benefit will be bestowed on those same-sex couples who can become civil partners.

But there is another category of people joined by the same affirmation of love and of affection, the same sense of duty to each other and the same commitment to a long life together as the same-sex couples who are the subject of this Bill and who in the same way cannot marry: unmarried siblings who share a long commitment to each other and share the home together for many long years—dare I say, for richer for poorer, in sickness and in health? They cannot marry. They are bound by love and fate not to be able to do so. No society would ever allow that they should. But they are surely just as capable of making and practising the same vow as others who wish to become civil partners.

There is another group too—that quiet, devoted army not so large in number, but weighty beyond measure in its value to society, of family carers who look after aged, often disabled, parents and who stay unmarried in the family home to do so. At Second Reading I gave the example of a son who selflessly lives with an ageing father to look after him in his last years. The same could be said of daughter and mother and, indeed—although I do not open it out in this amendment—of an unmarried son and a mother or an unmarried daughter and a father. All these are cases of people who cannot marry but whose love and ties, and the value they give back to society, should surely deserve the same recognition as the couples allowed new privileges under this Bill. Yet the Government will still discriminate against any such people after the passage of this Bill. There are many other categories of people who will still be discriminated against, for example, many elderly brothers and sisters living together. Perhaps their husbands and wives have passed away or perhaps they have never been married but living with a relative provides comfort and security. They too will still be discriminated against and are not included in the Bill.

I recognise that the day before yesterday the opinions of the Committee were divided on this issue but I am keen to state early on in these Grand Committee proceedings that this is an issue upon which we are unlikely to change our minds. I will not go away. We will fight for justice for these people with the same vigour as many of the people in this room have fought for another group of people who cannot marry.

How can it be right for a pair of gay civil partners to be given the same protection against inheritance tax as a married couple on the grounds of their chosen relationship and their inability to marry and yet right for an elderly sister or a 60 year-old son who has spent a lifetime caring for a parent to be brutally tossed out of the home in which they have spent their lives by the capricious operation of inheritance tax when a loved one dies? Such people cannot marry each other. They have committed to each other across decades. Surely their devoting cries out to have a mechanism of partnership for its recognition. Surely the injustice done to them by inheritance tax taking away their lifelong home, as we debated, cries out to be addressed just as much as the cases before us in the Bill.

Many of these people are not wealthy. They have made sacrifices to care for others, to care for people in their old age or disability who would otherwise be a major call upon the state. Parliament has the opportunity in the Bill to stretch out a hand to them. Will we do so or will we pass on by? Will we take satisfaction, just satisfaction, in a success for gay rights but turn our backs on a call for natural justice for others whose partnership is just as deep but who cannot marry? I cannot accept that we should. Cannot the Government look at ways to open the benefits and responsibilities, and the burdens and costs, of the Bill to them? Cannot we explore ways to limit any tax costs by confining the benefits to those siblings and other close relations who cannot marry and who have lived together for many years?

Surely that is what this Committee should be for and what this House, which has so often stood up for natural justice, as in the case of war widows for example, should also be for. It is easy to say no to spinster sisters who have shared a life or to the devoted son who has shopped and shared for 50 years. But surely we should take time to see if there is not a better way and so to make this an even better Bill. It does not seem so hard and if the Chancellor is the man responsible for setting the Government's teeth against it, can he not see that in the case of unmarried siblings or unmarried children there is no risk of indefinite erosion of the tax base or the immunity of a property from inheritance tax by passing it on from one partner to another? It is simply a case of liability deferred, but deferred in a way that avoids brutal pain when someone with whom one has shared a lifetime but cannot marry, dies.

I call from the heart to the Government, and I plead with those in the gay community who argued for the Bill and who understand the pain of not being able to affirm a relationship and having to suffer the fiscal consequences, to think again on this matter and to extend some means of affirmation to these people. These are good and deserving people—none better. It is a sad truth that many of them are left in a terrible financial state when one or other of them dies. What a poor reflection it would be on how we look on family and treat the elderly in our society if we heard their call and passed on by. I beg to move.

3.45 p.m.

Lord Lester of Herne Hill

When the leader of the Conservative Party, the right honourable Michael Howard, announced that his party was in favour of this Bill, I was very greatly heartened. I thought that the Conservative Party would deal with the Bill on a consensual basis, seeking to promote its objectives and not to undermine it with amendments whose effect, if not their purpose, would be to make it impossible for the Bill to be enacted either speedily or at all.

I agree with the noble Baroness, Lady Wilcox, that there should be no humbug about this. It is, I am afraid, humbug to seek to point to other disadvantaged groups and to seek to widen the Bill to deal with them when that is not the central purpose of the Bill.

The central purpose of the Bill is clearly explained in the admirable Explanatory Notes, which I bring to the attention of Members of the Committee because we have been over this ground not once but several times already. Paragraph 3 states: The purpose of the Civil Partnership Bill is to enable same-sex couples to obtain legal recognition of their relationship by forming a civil partnership which they may do by registering as civil partners of each other provided: they are of the same sex; they are not already in an existing civil partnership or lawfully married; they are not within the prohibited degrees of relationships; they are both over the age of eighteen or are over sixteen and have consent of the appropriate people or bodies". That is the purpose that I had thought that the Conservative Party, through its leader, completely endorses. It is a way of giving much needed legal recognition to a vulnerable group of persons who are prevented by law from being able to marry.

The main reason that marriage is considered to be good for society, in a non-religious sense, is that committed relationships help to settle individuals into stable homes and families. Marriage does that by establishing collective rules of conduct that strengthen the obligations to a spouse and often to children. We offer that right in civil law because society generally tries to encourage as many people as possible to live stable and productive lives. Marriage helps society to achieve that goal.

The primary purpose of the Bill is not about taxation. I am astonished and depressed to hear again and again the purposes of the Bill being reduced to coarse materialism. It may be what obsesses certain Members of the Committee —taxation and property— but, again, if one looks at the Bill, it becomes self-evident that it is not a tax Bill. Indeed, a tax bill is what the Finance Bill will deal with later.

I am sorry to have to point out what is elementary, but I do: Chapter 3 of the Bill deals with property and financial arrangements, including, for example, actions in tort between civil partners, assurance policies, wills, administration of estates and family provision, and so forth. Chapter 5 deals with the important subject of children. Chapter 6 deals with housing and tenancies, with family homes and domestic violence and with fatal accidents claims. Much of that has nothing whatever to do with taxation; it has everything to do with giving a floor of legal protection that is needed for this vulnerable group and not needed, perhaps I may say, for the other vulnerable groups of hardship to which the noble Baroness and others have referred.

I very much hope that these proceedings will be able to go ahead without too much repetition of points that are made on particular amendments, but we shall see. The touchstone that we in this party will use when we look at any amendment is to ask ourselves whether it seeks to advance the purposes of the Bill as described in the Explanatory Notes or whether it really seeks to frustrate that purpose. If the amendment seeks to frustrate that purpose, we will oppose it. If it is a genuine attempt to strengthen the rights and obligations of same-sex couples in loving relationships, we will support it. On that basis, we are wholly opposed to this amendment and all the other amendments of a similar ilk.

My noble friend Lord Goodhart will no doubt want to speak on the issue of inheritance tax, about which he knows a great deal more than I shall ever learn.

Lord Alli

I listened very carefully to what the noble Baroness, Lady Wilcox, said. It was a very impassioned speech, but my feeling was that it was a speech for a different Bill. I have reflected very carefully on Monday's proceedings over the past 48 hours, rereading Hansard, and I concluded that the Conservative Party has fundamentally understood the purpose of the Bill. The Bill is very much as the noble Lord, Lord Lester of Herne Hill, outlined. I was given great cheer when the noble Baroness stood at the Dispatch Box at Second Reading and said very clearly and proudly, I hope that the Minister will feel encouraged that the Official Opposition support the Civil Partnership Bill. I and my leader in another place do so in principle. We wish it well on its passage through this House".—[Official Report, 22/04/04; col. 395;] The noble Baroness recognised the words of Michael Howard, who said the he wanted to support the Bill because he did not believe it downgraded marriage but in fact gave respect to people who want to live their lives in different ways.

However, it has become clear with this amendment and the others in the group that the noble Baroness is unfortunately allying herself with those in her party who seek to torpedo the Bill. These are seductive arguments, and I have given my support to pursuing them outside the Bill. There are many deserving causes such as carers and spinster sisters, and inheritance tax is an important issue. But this is not an inheritance tax Bill, and trying to convert it into such plays into the hands of those would have the Bill destroyed In fact, the noble Baroness, Lady O'Cathain, said on Monday that this was not a relationship Bill but a tax Bill. I genuinely believe that that is where the noble Baroness is coming from. I said that I did not believe that inheritance tax was the principal concern of the Bill.

I am concerned that the Conservative Party Front-Bench Members are moving back to a position which we hoped they had moved away from. Indeed, they had given every indication that they had done so. But if you table amendments that appear to oppose the Bill, if you act as if you oppose the Bill, if you speak as if you oppose the Bill, then it is only reasonable for people to assume that you oppose the Bill. It is not just people in this House or the other place who will make that assumption. There are people up and down the country who are looking for indications of the change in the Conservative Party. This was that touchstone issue, and these amendments undermine that position.

I do not wish to engage in arguments about whether one group is more deserving than another. Same-sex couples who are currently invisible in the eyes of the law are a deserving group. The Bill deals with exactly that. Discussions about other groups are not for this Bill. I accept that there is a need to press the Government to look at some of those cases, but not in this Bill.

I know that it is sometimes hard to imagine new Labour not being in power, but we have been here for only six years.

Lord Lester of Herne Hill


Lord Alli

Going on for seven—no, seven. The Conservative Party was in power for a very long time. Indeed, the noble Lord, Lord Higgins, was in the Treasury for some of that time. If the Conservatives were so impassioned about these issues, why did they not make changes when they were in government? If those inheritance tax issues were so burning and you believed in them with so much passion and vigour, why did you not take the opportunity that you had to make them?

I believe that many of these are spoiling amendments designed to make the Bill unworkable. I urge my noble friend the Minister to resist them just as she did on Monday. We will see these amendments again on future occasions. I urge those on the Conservative Front Bench, please, to rethink their strategy on the Bill. We would like it to go through by consent.

Lord Northbourne

Perhaps I can intervene from the Cross Benches to say that the Conservative Party is not alone in being concerned about the situation of other members of the family. I very much regret that the noble Lord, Lord Lester, did not have the courage to stick to his original Bill when those issues might have been dealt with. However, I would not like the Conservative Party to be attacked on the basis that it is just causing trouble, because it is not; this is a very real issue. I do not think that I need to say more at the moment.

Lord Lester of Herne Hill

I am not sure that a lack of courage is the concern. My Bill dealt only with same-sex and opposite-sex couples. I have already said previously in Committee that I regret that this Bill cannot deal with both. However, I certainly had no intention of dealing with carers or other vulnerable groups. Nor do I think it would be appropriate in this particular Bill, much as other law reforms might be desirable.

Lord Northbourne

I accept that the noble Lord's reference to carers is probably right. But the same-sex and other-sex couples that he had included are, to me, hugely important.

Lord Lester of Herne Hill

I agree.

Lord Tebbit

First, perhaps I may say something to the Chair as well as to other Members of the Committee and particularly to the Minister. I find it remarkable that although the Bill has been in gestation for several years, we are today faced with 120 pages of government amendments, to a Bill consisting of only 255 pages. I will not go on about it, but it seems an extraordinarily poor way in which to manage legislation, particularly so long after Second Reading. I just have to wonder when the Government realised that there was the need for 120 pages of government amendments to a 255-page Bill. I may have the precise number wrong—it is a rough number—but just look at it. It is not a satisfactory way in which to conduct business.

I should like to comment on one or two things that have been said so far in the debate. I say at once that the amendment proposed by my noble friend Lady Wilcox has my support.

The noble Lord, Lord Lester, said that the Bill is for same-sex couples. Actually, inherently, it is a Bill for some same-sex couples. It specifically excludes a number of same-sex couples. He would have been more accurate if he had said it is a Bill for some same-sex couples. He also waxed eloquent on the Explanatory Notes. However, as we all know, Explanatory Notes have no legislative force whatever. In those famous words of one of Her Majesty's Ministers, they would—I think these are his actual words—have no more effect than a copy of the Beano. I remember the words very well, and I suspect that he probably does too; he has had to eat them often enough since. However, I suggest that if the noble Lord, Lord Lester, appeared in court in a case and started quoting not the legislation but the Explanatory Notes to the Bill when it had gone through the House, the judge would not let him get too far with it.

4 p.m.

Lord Lester of Herne Hill

I am grateful to the noble Lord. He is perfectly right that the Explanatory Notes have no legal consequence in a court of law, normally at any rate. That is absolutely right. I was simply quoting the Explanatory Notes as a parliamentarian, since they are designed to explain to parliamentarians what the Government consider to be the statutory purpose. If it were necessary, because there were any doubt about the matter, then what is in that paragraph could be incorporated in the Bill. But unless the Minister tells me that I am mistaken, the Explanatory Notes seem to me to be very well designed to explain to any parliamentarian who reads them what is the statutory purpose. Of course, the Explanatory Notes are of no greater value than the Beano to a court construing a provision of the Act when enacted. But that is a wholly different matter.

Lord Tebbit

I am grateful for the at least halfhearted consent of the noble Lord, Lord Lester, to the proposition that I put. I suppose I ought to declare a potential or a contingent interest in this amendment at this stage. Should I pre-decease my wife, someone will have to fulfil the role that I have fulfilled for her since Sinn Fein tried to murder the Prime Minister and a number of the rest of us and succeeded in murdering a number of people. Should that be one of our children, is the noble Lord, Lord Lester, really saying that he does not want to take advantage of the possibility of bringing into the Bill a provision that would put my daughter or one of my sons in the same position as a same-sex couple in relation to inheritance tax? I cannot believe that that is his view.

The noble Lord says he would like to do that, but not now, not in this Bill, although there is nothing in the Long Title of the Bill that would preclude it. He may suspect, and I think that he might be right, that the Treasury would be reluctant to extend to other couples who may not be married or who may be prohibited from marrying the same protection from inheritance tax that it is intended that this Bill would do.

The noble Lord, Lord Alli, said that this Bill is not really about inheritance tax. Well, that is fine. If it is not, why does the Minister not say that the Government will not make any changes in inheritance tax as a consequence of the Bill? If it is all about status, recognition or those other sections of the Bill, why are we talking about inheritance tax at all? The noble Baroness, Lady Scotland, says that we are not talking about inheritance tax. She may not be talking about inheritance tax, but everybody else is. Everybody knows perfectly well that the Government have said that in the next available Finance Bill they will bring in provisions relating to inheritance tax which spring from the Bill; indeed the noble Baroness herself said so the clay before yesterday. It is about inheritance tax.

I do not say that that is the centre of the Bill, it is not. If the Government were to say that they would not make any changes in the inheritance tax regime the Bill could still go ahead. I think it was the noble Lord, Lord Lester, who said that all the provisions about the private property of the individuals concerned are contained in the Bill. So the Bill could go ahead. We need have no worry for the Treasury at all. It would then be appropriate for the Government, in due time, to bring forward a Bill about inheritance tax in the proper manner, in the Finance Bill.

The noble Lord, Lord Alli, asked my noble friend Lord Higgins why, if the Conservative Party believes that something should be done about inheritance tax as it effects, for example, children who have cared for parents, it did not do it when the Conservative government were in office. I might equally well say to the noble Lord, Lord Alli, that if the Government care about this Bill, why did they not bring it in when they were in office years ago? It is a pretty poor argument to say, "You didn't do it in your time a decade ago".

Lord Alli

I consider that a weak argument. This Bill is being introduced within a reasonable time frame. Perhaps the noble Lord will accept the following point. One of the reasons I find the amendments that we are discussing, which stand in his name and those of his noble friends, particularly difficult to understand—I believe that they are counter-productive and that the noble Lord is trying to torpedo the Bill—is due to history. I refer to the way in which the noble Lord has approached this subject historically, the way in which he has voted on these issues historically and the way in which he has opposed these issues historically. I have not seen the evidence of the counter-argument regarding the work that has been done on inheritance tax. When the noble Lord's party was in government it laid no foundation for that. Now, when we are discussing a Bill that affects gay men and women, the noble Lord adopts the same position that he has adopted on all other equality legislation.

Lord Tebbit

First, I have always taken the view that it is better to judge people by their deeds and not by their words. Secondly, the inheritance tax problem was not a severe problem until recent years. It is no good the noble Lord, Lord Alli, shaking his head. It is only in recent years that an enormous number of houses have risen in price to the level where they cause an inheritance tax liability. It is no good the noble Lord shaking his head. Everyone in this room knows perfectly well that that is the case. That is why it has become an acute problem. It was not an acute problem 20 years ago. Surely the noble Lord knows that there has been an escalation of property prices and that the starting level of inheritance tax has not risen in accordance with it. Indeed, if the noble Lord forces me to wax eloquently about the matter, if I can do such a thing, I point out that inheritance tax is an entirely unfair tax as it is a postcode tax. It depends where you live, not what sort of house you live in, whether or not that tax will be levied. So let us not have any of that.

As to whether these are wrecking amendments, if they were, they would not have been permitted by the Chair. It is no good noble Lords laughing; that is a fact. You cannot have wrecking amendments of the kind that the noble Lord suggests. The amendments would not wreck this Bill unless, of course, it is about inheritance tax and the Chancellor said, "I am not having that Bill with those amendments". It would be the Chancellor who would wreck the Bill if he so wished; it would not be a case of these amendments wrecking the Bill.

Lord Lester of Herne Hill

I wonder whether the noble Lord would agree with me on the following point. If I told him that I wanted to go to Glasgow quickly and he said, "You can go to Glasgow quickly, but you have to go via Truro and Penzance", his counter-offer might be regarded as wrecking my plan to go to Glasgow quickly. Are we not discussing exactly the same point with regard to these amendments? Of course, they are not wrecking amendments in the sense that they cannot be tabled as a matter of procedure but they are wrecking amendments in that their thrust is to try to widen the Bill in a way that would make it practically impossible—quite apart from any action on the part of the Chancellor of the Exchequer—for the Bill to be enacted and become law before the next general election.

Lord Tebbit

If the noble Lord, Lord Lester, were to make me an offer that he would go to Glasgow by the most expeditious route I might just possibly accept it. I would not trouble him to go via Truro. There is nothing in these amendments that need delay the Bill going through—nothing whatever. It is rather unwise of the noble Lord, Lord Lester, to put forward such an argument.

Amendments standing in my name are included in the grouping that we are discussing—Amendments Nos. 18 and 37. My amendments are slightly different to that of my noble friend. Her amendment is much more akin to the amendments that I moved the day before yesterday—it is more sweeping. Mine are more modest. They are about removing the consanguinity clauses.

I know that the noble Baroness, Lady Rendell, read out a note the day before yesterday that stated that these provisions had nothing to do with concern about inheritance of birth or genetic defects or the incest provisions, but were all to do with the doctrine of the Catholic Church several hundred years ago. I am not sure whether she is necessarily overwhelmingly right or wrong about that but, above all, those restrictions on marriage between persons of opposite sex are related to the potential problems of children of the marriage.

My amendments would remove those provisions that prohibit persons of the same sex entering a civil partnership on the grounds that they are within the prohibited degrees of relationship. It is as simple as that, when one takes it in short. Those amendments are to pages 98 and 76 of the Bill. They would be useful additions because they would, for example, allow brothers to enter a same-sex partnership. If the Bill is about same-sex partnerships, why not brothers? That is not a big amendment. It would not wreck the Bill. I am not sure how long the noble Lord, Lord Lester, thinks that it would delay the Bill—certainly for no longer than a flight to Glasgow. So I do not know why there is any resistance to this, except, possibly, Treasury resistance to any expansion of the narrow group for whom the Bill has tax advantages. No more needs to be said.

Lord Goodhart

I start by saying that I used to know a good deal about inheritance tax because, when I was in practice at the Bar, I advised a number of people on it. Whether that helped them to reduce their liability to inheritance tax, I should not like to say. What is clear is that the purpose of the Bill is to give legal and public recognition to the status of civil partner between couples of the same sex. The tax consequences are just that—they are merely consequential on that relationship, which is the important element. The purpose of the Conservative amendments is entirely different. As I said before and repeat, it is to turn the Bill into a tax avoidance or, at best, tax reduction—I suppose that one could politely call it—Bill.

Not a single argument has been put forward by anyone on the Conservative Benches or by the noble Lord, Lord Northbourne, from the Cross-Benches, as to why there should be any extension to other people—for instance, people within the prohibited degree—except that it will save them from inheritance tax, which has now become a problem because of the increase in house prices. The arguments are purely on the basis that if those people are not allowed to enter into civil partnerships they will suffer a tax burden that they might otherwise be able to avoid. It is purely and simply a tax avoidance issue.

4.15 p.m.

There is a seriously arguable case that there are circumstances—for example, that of a carer looking after an elderly parent—where some form of tax relief would be justified. But this is not the Bill or the occasion on which that issue should be raised. If the Conservative amendments should succeed, we would be left with a situation where some people who ought to benefit from tax relief would fail to do so; for example, because they are married to someone else. I entirely see the personal point made by the noble Lord, Lord Tebbit, which I look on with great sympathy. I do not know whether his daughter or his sons are married. But, if so, they would be unable to benefit even from the Bill as it is now proposed to be amended.

If there is such a strong case for relief, it should not have to depend on people entering into a formal civil partnership with all that it implies in terms of the complications of dissolution or nullification. It should be based simply on the nature of the relationship; that is, being able to establish that there was co-residence, that there was a caring obligation and that it was undertaken without pay.

However, the Conservative amendments would give tax benefits to a number of people who should not be entitled to benefit. For instance, there is nothing in the Conservative amendments that we are debating that requires a formal co-residence. I think that there was one the other day that did require that, but these do not.

Perhaps I am wasting time here, but I certainly do not intend to speak to this issue again. I believe that we are wasting time that would be better spent on considering the actual details of this Bill and whether or how we could improve it so that it can achieve the objects for which it was introduced.

Baroness O'Cathain

Perhaps I may refer to what the noble Lord, Lord Goodhart, has just said about people not having to live in the same house for the purposes of the amendment. That is true, of course.

After speaking to my amendments in Grand Committee on Monday, although I withdrew them, I said that I would bring them back at Report stage.

Lord Northbourne

The reason that I am so concerned in this matter is rather on the same basis. My grandchildren say to me that it is not fair if a single-sex couple, because they live together, are to enjoy certain advantages. Why should two brothers who are living together be excluded from those advantages?

Lord Tebbit

In the most interesting speech made by the noble Lord, Lord Goodhart, he said that we had not established why those benefits or exemption from inheritance tax on a house, for example, should be given to the group of people who would receive them under this amendment. He did not make any case for them being given to the group who would receive them under the Bill.

The case is that it is unfair because the benefits are given to married couples, but they are not given to same-sex couples who cannot marry; that is, who cannot marry each other. They can marry other people if they wish, but they cannot marry each other. The argument all the way through has been that it is unfair: "It's unfair. It's unfair". But that is the argument that we put. It is unfair. It is far more unfair to a far larger group than those who will receive benefits under the Bill. The problem, as I have said, is that my noble friend's amendment would bring too many people too much benefit. That is the Treasury argument. We could solve that by saying that no one would benefit as a result of this Bill from inheritance tax changes.

The Minister of State, Home Office (Baroness Scotland of Asthal)

I should like to say from the inception that I do not feel able to accept the amendment. I very much agree with the comments made by the noble Lords, Lord Lester and Lord Goodhart, and my noble friend Lord Alli. Perhaps I may turn to some of the specific issues that were raised in relation to the number of amendments. I think that the noble Lord, Lord Tebbit, makes complaint about the volume of amendments.

Members of the Committee will know that on 27 November the usual channels were made aware that the Northern Ireland provisions would be on this scale and to this timetable. That is one of the reasons why the Government sought agreement to publish the Bill in draft and to introduce it later in the Session for carry over.

At Second Reading, I made plain—at cols. 390 and 391 of the Official Report for 22 April 2004—that this was the proposal, and I gave the reasons. I wrote again to Members of the Committee on 29 April setting those reasons out. Your Lordships will see that the amendments that we have tabled mirror the provisions elsewhere in the Bill that we have for England and Wales, and Scotland, save, of course, the modification that takes into account the Northern Irish structure. With the greatest respect, I say to the noble Lord, Lord Tebbit, that his criticisms on that regard are misplaced.

I shall deal with the technical issues first before I turn to the substance. The noble Lord, Lord Tebbit, commented on the reference made by the noble Lord, Lord Lester, in relation to the Explanatory Notes. In case there is any doubt, the Explanatory Notes are correct. They outline the purpose of the Bill. I say that on a Pepper v Hart basis. Having said that, the court, if in any doubt, may turn to these statements in order to accurately construe the intention of Parliament when we were debating these issues.

I now turn to the powerful speech made by the noble Baroness, Lady Wilcox. Of course, I hear the concern that she has expressed, which has been echoed by others, for those who are in a significantly different position than those who wish now to enter into same-sex partnerships. I am a little surprised by the terms that she used in describing inheritance tax. I hope that the noble Baroness will correct me in case I have incorrectly noted her words, but I believe that she called it "the vile inheritance tax".

I say that I am surprised because I know that the government under the noble Baroness, Lady Thatcher, has been called many things—people have been quite pejorative in some of their comments about the tax issues brought in by that government—but I would remind Members of the Committee opposite that it was, in fact, the government of the noble Baroness, Lady Thatcher, who introduced inheritance tax in 1986. It replaced the capital transfer tax that went before it.

So "the vile inheritance tax" has its origins on the other side. The noble Lord, Lord Tebbit, will remember it well. At that stage, he was chairman of the party. The noble Lord, Lord Higgins, can suffer some relief because I believe that during that period he was not responsible for the matter at the Treasury.

I therefore understand why my noble friend Lord Alli echoes surprise that, if these issues are of such burning importance, they were not addressed in the 18 years of Tory government. However, it is perhaps unseemly for us to exchange words about the history—who was responsible for one or another aspect. We are dealing with the situation in which we now find ourselves.

On Monday, I said that there were significant differences between the arrangements currently available for members of a family in terms of both intestacy rights and tenancies. We went through many of the provisions that are currently available to those who are family members. If one were to take the amendments proposed by the noble Baroness, Lady Wilcox, to their final conclusion, one would be able to have perpetual partnerships within a family that could avoid inheritance tax in perpetuity. So elder son could marry son in effect, which is what those opposite say is happening. A partnership could go from brother to sister, father to uncle, thereby avoiding inheritance tax for ever. That may be a consummation devoutly to be wished by those who sit on the Benches opposite, but it is not the purpose for which this Bill was intended and it is not a course that we would in any event endorse.

I made it plain in our deliberations in Committee on Monday that the Bill is intended to give recognition to the relationship between same-sex couples who cannot marry. People with close family ties, such as parents and children, already have a relationship that is recognised in law. The noble Lord, Lord Lester, was therefore right to say that the Bill's purport goes much wider than the mere inheritance tax provisions. I am, obviously, aware of the wish of some to widen it beyond that.

The noble Lord, Lord Tebbit, again raised the issue of the purpose and justification for continuing the prohibited degrees. The justification, as the noble Lord knows, is twofold. The first, of course, is to avoid defects arising in the offspring of two closely blood-related people. However, equally important, it is to discourage what are considered inappropriate relationships within families that can cause that family to become seriously dysfunctional, by which society is disadvantaged as the family network becomes destabilised. We are all too familiar with the consequences of such instability. The genetic justification is not relevant to same-sex couples who intend to register as civil partners of each other. However, the second justification is relevant.

We see that as sufficient justification to resist the amendment and to follow, for civil partnerships, the prohibited degrees of relationship by reason of kindred and affinity in marriage law. By applying these prohibited degrees of relationship in the Civil Partnership Bill, the Government aim to reinforce their policy of supporting stable families, ensuring that the trust and integrity of family relationships are not put at risk. I see that the noble Lord, Lord Tebbit, laughs at that, but I assure him that those who enter into long-term stable, same-sex partnerships feel the same degree of attachment to the members within those relationships as do others who enjoy the real benefits of opposite-sex relationships.

4.30 p.m.

Lord Tebbit

Once again, the noble Baroness should not think that I am laughing or smiling at one matter when it is another. I was smiling at the Government's claim that they are so supportive of the family. Well, I think that there are many people who would not quite accept that.

Baroness Scotland of Asthal

I hear what the noble Lord says. The effect of Clause 157(2)(b) is that if an overseas relationship has been registered by a person who was domiciled in England and Wales, then the two people concerned are not to be treated as having formed a civil partnership if they would have been within the prohibited degrees of relationship in Schedule 1 had they been registering as civil partners of each other in England and Wales.

Amendment No. 18 would allow close relatives to register as civil partners of each other, so long as they are not of the opposite sex. That would mean that the prohibited degrees of relationship in Schedule 1 would apply only to opposite-sex couples and not to same-sex couples. Of course, under this Bill, civil partnership is not open to opposite-sex couples, but I recognise that the noble Lord has tabled amendments to include them within the remit of the Bill.

We have always been clear that this Bill would not be open to opposite-sex couples as, through marriage, they already have the opportunity to gain legal status for their relationships. That is not the mischief that we seek to cure. The mischief that we seek to cure is the disadvantage that is currently experienced by those same-sex couples whose relationship in law is invisible at the moment. We wish to give them that visibility, but, just as importantly, we wish to give them the considerable responsibilities which they will, it is to be hoped, honourably discharge in the way that we wish opposite-sex couples to honourably discharge their duties.

I therefore say to the noble Lady and the noble Lord that I expect them to return to this matter at Report. They will be aware that my opposition to these provisions is likely to remain as resolute as it is now.

Baroness Wilcox

I am grateful for having had the opportunity to put to the Committee what was, as I said at the beginning, a probing amendment. So I do not believe that the noble Lord, Lord Alli, needs to worry that I am trying to torpedo the Bill. As he has said, the leader of my party in another place and I support the Bill. But I will take this opportunity to repeat that, unlike the Government and Liberal Democrat Benches, our Benches have a free vote on this matter. There are some on our Benches who do not agree with the leader of my party and I, but I have already spoken on this subject, particularly regarding gay partnerships, when the noble Lord, Lord Lester, brought a similar Bill forward. So I am on record there, and I am on record again at my speech at Second Reading.

This is a great opportunity, a wonderful opportunity. The Government are right to bring it forward. My leader and I are delighted to support the noble Baroness in this Bill. We are trying to see whether we cannot make what we hope is a good Bill an awful lot better. As the noble Lord, Lord Northbourne, said it does not seem fair to have ring-fenced a very small group of people from a larger group of people who cannot marry.

I heard the Minister's response. As always, she is good mannered, gracious and uses legal phrases of which I sometimes know naught—sometimes I do not think that she knows that she does it, but I am no lawyer. I will carefully read her response and, as she says, I am likely to bring these amendments back at Report. I hope that I can bring them back in a way that will find favour with her. For now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 18 and 19 not moved.]

Clause 3 agreed to.

Clause 4 [Parental etc. consent where proposed civil partner is under 18]:

On Question, Whether Clause 4 shall stand part of the Bill?

Lord Higgins

We gave notice of our intention to oppose the Question that the clause stand part of the Bill. Our intention is probing, as it was with the previous amendment. Perhaps I may be allowed to say a few words about the previous exchanges. I was not a Treasury Minister in the Government of my noble friend Lady Thatcher. In fact, during the entire period I was a member of the Treasury Committee and for more than a decade chaired the Treasury Committee, which was anxious to ensure that the Treasury kept on the right lines during that period. To what extent I was successful I leave the Committee to judge.

I also want to make a serious point. The noble Baroness, Lady Scotland, referring to Pepper v Hart, sought to say what is the purpose of the Bill. I do not recall a Minister ever referring to Pepper v Hart in the overall sense of the purpose of a Bill. The long title—or, indeed, the short title—is concerned with that, but for the Government to rely on Pepper v Hart and a ministerial statement to define the purpose of the Bill seems an interesting constitutional innovation. I am surrounded by Liberal lawyers who know infinitely more about that. My view has always been that one lawyer in the family is enough. None the less, the point is important.

Lord Lester of Herne Hill

I am sure that I could never possibly be the quality of lawyer of the noble Lord's spouse and civil partner, Dame Rosalyn Higgins, but I am the guilty counsel who won the case of Pepper v Hart. I have often regretted having done so and agree with the noble Lord, Lord Higgins, that one would not normally use the Pepper v Hart principle except in exceptional circumstances to construe legislation that was dodgy on its face.

The noble Lord, Lord Renton, has long considered whether a purpose clause should be included in Bills to put their purpose beyond doubt. I seem to remember that my Bill included a purpose clause to make its purpose clear. Speaking for myself, I should like to consider whether there should be a purpose clause to reflect what is in the Explanatory Notes as the main purpose of the Bill and put the matter beyond doubt. So I have considerable sympathy with what the noble Lord said about the possible misuse of my victory in Pepper v Hart.

Lord Higgins

These are very deep legal waters. I shall consider very carefully what the noble Lord has just said. If there is to be a purpose clause, of course, there ought to be such a clause, but I do not think that you can do it through Pepper v Hart. I am reassured by what the noble Lord has just said in that regard.

A short time ago—it seems rather a long time ago now—the noble Lord, Lord Goodhart, said that we should concentrate on improving the Bill and clarifying its intentions. That is what I propose to do in my comments on the clause that we are discussing.

The clause is concerned with parental consent and so forth. It would be helpful if the Minister could comment on the following points. I do not understand Clause 4(3), which states: The requirement of consent under subsection (1) does not apply if the child is a surviving civil partner". I have difficulty in understanding who or what this individual is, or how he or she got into this strange position. If it is a child, are we to understand that it is a child who is "a surviving civil partner"? I presume that the measure refers to someone who as a child has already entered into a civil partnership and then the question arises whether he or she can enter another civil partnership, which I would assume they cannot. The matter is very unclear to me. Perhaps the noble Baroness, on a Pepper v Hart basis, can clarify the situation.

I refer to another important matter. Who the appropriate persons to give consent are is set out in Schedule 2 but I am not clear how any of this information is to be conveyed to people who might be considering registering a partnership where the individual concerned is a child. Is there to be a general booklet explaining when you can and cannot register a civil partnership and so on?

Finally, Clause 4(5) states: In this Part 'child', except where used to express a relationship, means a person who is under 18". Am I right in assuming that that provision applies as it does in the case of a marriage involving two people of different sexes? I should be grateful if the Minister would clarify those points.

Lord Tebbit

I hope that I may intervene briefly. I know that if I am not careful the Chair will rule me out of order, so I am prepared to sit down very quickly. I merely say, please dear Lord save us from legislation with general purpose clauses. That will be a recipe for sloppily drafted legislation of which we have too much already. It will be a recipe for more litigation and more and richer lawyers. We have seen that come into effect with European law which allows judges to make law instead of interpreting it.

Baroness Scotland of Asthal

I hope that I will be able to give the noble Lord, Lord Higgins, the answer he seeks. I almost wish to apologise to the noble Baroness, Lady Wilcox, for even talking about Pepper v Hart. The reason I did it was because there was an interesting debate between the noble Lords, Lord Tebbit and Lord Lester, in which the noble Lord, Lord Tebbit, suggested that the referring of the noble Lord, Lord Lester, to the purpose clause would have no effect. I was addressing the matter of when the courts can use the proceedings in Hansard to help them to interpret a matter if they think that is necessary. I did not suggest that they would necessarily do so.

I turn to the point raised by the noble Lord, Lord Higgins, regarding subsections (3) and (4) of Clause 4. The Government have always made it clear that marriage and civil partnerships are different in status. Accordingly, we did not consider that consent to one should automatically constitute consent to the other. In either case a bereaved person—that is what is meant by "a surviving civil partner"; namely, a person whose civil partner has died—will be able to enter into another relationship of the same kind without further consent. That is, a widow or a widower will be able to remarry and a bereaved civil partner will be able to enter into another civil partnership without having to ask for any further consent if they are below the age of 18.

However, we think that it is right to require fresh consent when someone below the age of 18, whose first marriage or civil partnership has ended with the death of a partner, wishes to enter into a legal relationship with a partner of the opposite sex from the deceased. So, if parental consent is given once for one purpose, we are saying, in essence, that it does not automatically mean that it would be given for another purpose. If we take an example where, if one were to agree to a 16 year-old son entering into a marriage and that partner died, it would still be possible for the parent to say, "I wish to consider whether I wish to give my consent to my child entering into another relationship of a different sort"—and vice versa—"I may accept that my child has told me that they will be of one gender orientation forever". That just gives parents an opportunity to give their consent or dissent, as appropriate. I believe that those were the two matters that the noble Lord, Lord Higgins, raised with me.

4.45 p.m.

Lord Higgins

I am sorry, but I simply do not understand that. Is Clause 4(3) designed to deal with someone who is a child, in the sense of being under 18, but is a surviving civil partner? Does it relate to where someone under 18, who has already had a civil partnership and the other partner has died, wants to obtain consent again? It seems frightfully bad luck for the individual concerned.

Baroness Scotland


Clause 4 agreed to.

Clause 5 agreed to.

Clause 6 [Place of registration]:

Baroness Wilcox moved Amendment No. 20:

Page 3, line 35, leave out paragraph (b).

The noble Baroness said: I turn now to Clause 6, which details the places where people may register as civil partners and, perhaps more importantly, where they cannot. Here I am wearing my consumer choice hat, because I declare an interest as chairman of the National Consumer Council.

The noble Baroness, Lady Scotland, made it clear in her helpful briefing meeting that civil partnerships are secular. She went on to say that, as such, they should not be registered in religious buildings or premises. So, can the Minister explain exactly what the clause covers? Which premises fall under this clause and can thus be discounted from being a place of registration?

The Citizens' Advice Bureau has contacted me on this point; it says that it should be up to individual religious leaders of Christian and other faiths whether they felt that civil partnerships could or could not be registered in their premises. As always, I am looking for the widest possible choice and access for the British consumer, so I look forward to hearing what the Minister has to say. I beg to move.

The Lord Bishop of Peterborough

I am aware that the right reverend Prelate, the Bishop of Oxford, raised this matter on Second Reading, when I indicated that I did not entirely agree with his comments. However, while I cannot speak for other religious groups, I believe that I speak for many of my colleagues and others in the Church of England who take the view that the Government's proposals are appropriate.

They do that because, as the noble Baroness, Lady Scotland, has already said, this is a civil, indeed a secular partnership and registration is, therefore, appropriate on civil secular premises. The Government are not legislating for what religious groups may or may not do subsequent to registration. That is up to the religious group concerned and if it wishes to add a religious ceremony it is free to do so. As I understand the legislation, there is no restriction on that. That would meet the concerns raised by the right reverend Prelate the Bishop of Oxford.

I believe that I am right in saying that the provision also parallels the situation in a marriage in a register office, which may or may not be followed by a religious ceremony. The possibility that that exists should meet the concern raised by the Citizens' Advice Bureau. It would be perfectly possible for someone of religious faith to ask their own religious authorities whether they may add such a ceremony after the civil registration. For those reasons I do not believe that the clause intrudes on religious freedom and it is perfectly acceptable as it stands.

Lord Lester of Herne Hill

It is probably unnecessary for me add to what the right reverend Prelate has just said, but that is certainly our understanding of Clause 6. As I understand it, the motivation behind the amendment is that heterosexual couples can choose to marry either under a civil or religious ceremony. Under the current proposals, same-sex couples will not have that choice; they could only have a civil procedure under the Bill. There is no discrimination in the provisions relating to a civil registration between same-sex and opposite-sex couples, because neither can take place in religious premises or with a religious ceremony at the same time.

There have been some misguided criticisms that prohibiting the use of any religious premises for a ceremony for civil partnerships would be discriminatory—but that is not correct, I believe. The Bill does not say that no religious premises or ceremonies could be used for a religious partnership, for example. That would be discriminatory, but the Bill is silent on that point and leaves it entirely for the Church of England or any other Church or religious body to follow its own course on whether to give special blessings or religious validity to same-sex relationships—eventually, perhaps, including gay marriage. It would be inappropriate for the secular branch of the state to dictate to the Churches about that—that matter is entirely for them. Therefore, I respectfully agree with the right reverend Prelate that Church and state are properly acting within their separate spheres, that nothing in the Bill encroaches upon freedom of religion, nor should it do so. For that reason, we regard this amendment as unnecessary and based on a misunderstanding.

Lord Beaumont of Whitley

I do not quite understand. My understanding is that this will be the only civil contract which can be entered into by citizens which may not be entered into in a Church. When I was a vicar I saw absolutely no reason why, if my parishioners wished to enter into contracts about leases or any other matter that might come up in civil affairs, they should not be conducted in church. I do not see any reason why they should be conducted in church and I do not believe that they ever were. But I am not aware of anything in either civil law or—and the right reverend Prelate can correct me if I am wrong—in canon law which would stop any ordinary civil contract being performed in a church. If that is so, why is this the only one which cannot be performed in a church?

Baroness O'Cathain

It is no secret that I regard this Bill as essentially creating civil marriage for homosexual couples and, I have a feeling that the noble Lord, Lord Lester, feels that too.

The amendment of my noble friend Lady Wilcox would permit a kind of religious homosexual marriage. Amendment No. 20 would legalise civil partnership registration in a church, a mosque, a synagogue or temple.

I recognise that my noble friend may be merely probing the Government's position. But a great many clergy would regard it as totally unacceptable for a Government Bill to permit civil partnerships to be registered in a place of worship. I will go on to argue that, in effect, the amendment will lead directly to litigation against churches which refuse to conduct registrations under the Bill in their places of worship.

This amendment directly concerns matters of religious belief. It is not about civil rights, since under the Bill a civil ceremony is freely available. It is, however, about theology and the views that religious people hold on homosexual practice. The amendment directly affects the internal affairs of religious bodies. It is a path down which the Government have so far feared to tread.

That is not the case with my noble friend, whose amendment might just be prompted by the briefing from the Lesbian and Gay Christian Movement dated 14 April. I, too, received that briefing. It is clear that that movement regards civil partnership as a form of marriage. They refer to the, strict parallelism between marriage and civil partnership and they see this amendment as a way of furthering that.

The Lesbian and Gay Christian Movement and the right reverend Prelate the Bishop of Oxford, who I am sorry is not here today, both argue that the Government should permit the registration of civil partnerships in churches. On Second Reading, the right reverend Prelate said that Clause 6(1)(b), infringes the proper freedom of religious authorities to control"—[Official Report, 22/4/04; col. 399.]— their premises.

It is interesting to me that there suddenly seems to be a keen interest in allowing Churches to set their own internal policies on controversial issues of sexual ethics. Just a few weeks ago I was arguing for Churches to have freedom to set their own policies in relation to trans-sexual people who wanted to be Church members. I wanted the Churches to be protected from legal interference as a result of the Gender Recognition Bill. I said that the Bill breached religious liberties. Some weeks later, an opinion by James Dingemans QC came to exactly the same conclusion.

Lord Lester of Herne Hill

There is a genuine misunderstanding here. Under our present law, my understanding is that there is a prohibition on a civil marriage taking place in a church or in religious premises. This clause contains the same prohibition in respect of registration of civil partnerships. It does the same for gay and lesbian couples as is done for heterosexual couples who are married. It has nothing whatever to do with what the Churches choose to do, which is a matter for them. That is all that it is doing. That is my understanding, unless I am wrong and the Minister may correct me.

Baroness O'Cathain

My understanding is that that is not the case. I defer to the noble Lord, Lord Lester, in all of these issues, but will he hear me out on this matter?

I find it ironic that some of those who opposed me on that question in the Gender Recognition Bill now argue for state-sanctioned gay marriage in church on the basis of religious freedom. The right reverend Prelate is supported in his calls for gay marriage in church by an organisation calling itself the Grace Catholic Church, which sent a circular, dated 10 May, to Members of your Lordships' House. It has unearthed an ancient rite, apparently used in some eastern Churches, which it claims is a form of homosexual union comparable to the Civil Partnership Bill. It is crystal clear, even from that organisation's own literature, that this obscure ceremony held centuries ago was nothing more than a celebration of same-sex friendship.

I understand that no serious scholars regard this ritual as pertaining to an erotic relationship. Grace Catholic Church's own literature calls it a "brother-making" ceremony. Brotherhood is not a sexual relationship. After all, the vast majority of friendships amongst those of the same sex are not remotely sexual.

It is obvious that what Amendment No. 20 permits runs contrary to the long-established, orthodox beliefs of mainstream religion. Those within the Anglican communion, such as the right reverend Prelate the Bishop of Oxford, who advocate homosexual partnership ceremonies in church, are very much out on a theological limb regarding the Anglican Church worldwide. This was clearly shown by the 1998 Lambeth conference of the Anglican Communion. The conference endorsed the teaching of the Bible which states that sex is reserved solely for marriage.

The Lambeth conference passed a clear resolution, by 526 bishops to 70, stating that it, cannot advise the legitimising or blessing of same sex unions". While calling on all Anglicans to, minister pastorally and sensitively to all irrespective of sexual orientation", it rejected homosexual practice as "incompatible with Scripture".

5 p.m.

Within the worldwide Anglican communion, this is the overwhelming view. There are more Anglicans in each of the provinces of Kenya, Uganda and Tanzania, for example, than in the whole of the United States, Canada and Britain put together. These provinces, as we all know, strongly disagree with liberal fundamentalists within the hierarchy of the Church in the West who seek to promote the acceptability of homosexual activity.

The effect of my noble friend's amendment would be to take sides with the dissenting minority liberal view within the Anglian communion, alongside the right reverend Prelate the Bishop of Oxford.

The legal position of the Church of England is set out in the Synod Motion of 1987 which argues that homosexual acts should be repented of. I was interested to discover that Canon C18 relating to diocesan bishops places upon them a duty, to teach and to uphold sound and wholesome doctrine and to banish and drive away all erroneous and strange opinions". A bishop must uphold the orthodox views of the Church—its "wholesome doctrine". Wholesome doctrine is defined by the Church of England (Worship and Doctrine) Measure 1974. It highlights Canon A5, which says that the doctrine of the Church of England is, grounded in the Holy Scriptures and in such teachings of the ancient Fathers and Councils of the Church as are agreeable to the said scriptures [and] in particular such doctrine is to be found in the Thirty-nine Articles of Religion, the Book of Common Prayer and the Ordinal". The 39 articles, the Book of Common Prayer and the ordinal do not support the blessing of homosexual unions.

Those who call for homosexual civil partnerships to be celebrated in church cannot claim to represent official or orthodox Anglican opinion. The reality is that the overwhelming majority of places of worship—not just Anglican churches—would not wish to host a gay marriage ceremony. The problem is that under English law, parishioners have a legal right to be married in their local church.

Introducing state-sponsored civil partnership registration in churches will simply create yet more scope for legal action against churches that take the traditional line. Currently, if a homosexual couple approach a church and ask to be married there, the church can say, "No. Same-sex marriage is against the law". If Amendment No. 20 were to succeed, the church would no longer have this straightforward defence. Although not present in statute, human rights litigation will undoubtedly seek to establish a legal right for parishioners to have a civil partnership registered in their parish church.

A homosexual couple could seek to sue their local parish church for refusing to carry out a lawful civil partnership ceremony. They would no doubt allege that marriage was a public function under the terms of the Human Rights Act and that therefore refusing to conduct civil partnership registration in church was a breach of convention rights.

Lord Lester of Herne Hill

I am sorry to intervene on the noble Baroness and am grateful to her for giving way. May I draw to her attention what the Marriage Act 1949 says, as it has apparently not been drawn to her attention? Any argument of that kind would be completely untenable.

The Act says: No religious ceremony shall be used at any marriage solemnized in the office of a superintendent registrar". Then it says: No religious service shall be used at a marriage on approved premises". Then it says: Any reading, music, words or performance which forms part of the ceremony of marriage …must be secular in nature"— which the provision goes on to explain. On places of registration, it says that marriages must be on approved premises, and so on.

The amendment would simply mirror the provision in the Marriage Act applying to the marriage of heterosexual couples. It contains the same prohibition as one finds in the Marriage Act, there is no discrimination of any kind, and it has nothing to do with anything that any church might wish to do in Croydon, or elsewhere, to carry out some kind of religious ceremony. That is a matter for them. James Dingemans' opinion does not deal with this; if it did, it would, with great respect, be manifestly misguided.

Baroness O'Cathain

I shall certainly read what the noble Lord, Lord Lester of Herne Hill, said. All the research that I have done has not given me that answer.

I believe that the amendment, if it were passed, would be an affront to many people. I am sure that that was not the intention of my noble friend but that, I believe, is the effect, and I hope that the Government will resist it.

Lord Alli

I hesitate to speak in this debate, but I certainly wanted to support the noble Baroness, Lady Wilcox, in her amendment; there have been few on which I have been able to support her. The need for this probing amendment has been amply demonstrated. The noble Baroness, Lady O'Cathain, has perhaps demonstrated the need for clarity in this area.

It may be useful for the Government to look at the form of words to make very clear the point made by the right reverend Prelate the Bishop of Peterborough and the noble Lord, Lord Lester of Herne Hill—that the prohibition is on the use of a premises and not on a blessing, should the Church sanction that. I agree very much with the comment of the right reverend Prelate the Bishop of Oxford, at Second Reading, when he said that it is not for the state to dictate what the Church or any religious organisation should or should not do within their premises; it is up to them to decide on that.

I shall raise one other point to which I think the noble Baroness, Lady O'Cathain, herself referred. It really is hypocritical to say that she opposes the provision in this Bill when—if I remember correctly her words in the debate on the Gender Recognition Bill, on 10 February—she said that it is important to allow people of faith to worship God and conduct their own religious activities according to their own faith. She said that Churches are private bodies and make their own rules of membership. I could say it no better myself.

The Lord Bishop of Peterborough

I wonder whether the noble Lord, Lord Alli, agrees that the clause as drafted does not inhibit or prevent religious bodies doing what they wish on their own premises; it simply says that a civil registrar should conduct a civil ceremony on civil premises, entirely in line with the 1949 Act which the noble Lord, Lord Lester, quoted. So while I would agree with the noble Baroness, Lady O'Cathain, in resisting the amendment, I do so on very different grounds from those she was advocating. I entirely support the comments of the noble Lord, Lord Lester, on the present law on marriage, which I think should be extended as the Government have done in the Bill.

Lord Alli

I am not a lawyer, but I suspect that Pepper v Hart may be useful in this debate.

Lord Tebbit

Perhaps I may say briefly—I hope it does not undermine the confidence of the noble Baroness, Lady Scotland, in her own legislation—that I think the current drafting is quite correct.

Baroness Scotland of Asthal

I could have no better accolade than that just given me by the noble Lord, Lord Tebbit.

I may be able to take this briefly. I think that the noble Lord, Lord Lester, is right in referring to the 1949 Act. The right reverend Prelate, the Bishop of Peterborough, is also absolutely correct. Perhaps this debate has made clear why the Government decided to ensure that these partnerships stay absolutely within the secular field and do not trespass on the different and sometimes conflicting religious beliefs of others, who may adhere to a plethora of religions. Just as with civil marriage, these unions will be entirely secular and the restrictions on religious content and religious premises therefore mirror the position for civil marriage. Civil marriage can take place either in a registry office or in a building that has been approved for the purpose. The same will be true for partnerships.

The Churches and the religious community can do with the partnerships what they will. If blessings are deemed to be appropriate in accordance with the tenets of their faith then they are free to arrange them. If they are outwith their faith then they will be free not to permit them.

Baroness O'Cathain

I thank the noble Baroness for giving way. If a church refuses to bless or hold a civil partnership ceremony for a parishioner in his church, will the church be open to litigation?

Baroness Scotland of Asthal

These provisions specifically provide that this procedure cannot be undertaken on religious premises. They are entirely secular. Therefore, to carry them out on religious premises would be in breach of the law that we are currently seeking to implement. So they would not be in peril of any such criticism or opportunity for litigation.

This debate has demonstrated how sensitive these issues are. I said on Second Reading that we have tried to chart a path which understands those sensitivities and gives voice to the humanity which is evident in these relationships so they are able to be acknowledged. However, that does not mean that any other individual has to approve or disapprove of their existence. We are merely acknowledging the reality of what is.

Baroness Wilcox

I am very grateful to the right reverend Prelate the Bishop of Peterborough for establishing the Church of England's position on this. The noble Lord, Lord Beaumont of Whitley, really had the measure of the question I was asking. Having spent 10 years as chairman of the National Consumer Council, I am perfectly used to asking the unaskable. I really did not want to take part in a barrage of religious exchanges, but that is one aspect of consumer choice that will be barred to us all. Having had the explanation and heard the exchange, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 6 agreed to.

Clause 7 agreed to.

Clause 8 [Notice of proposed civil partnership and declaration]:

Baroness Wilcox moved Amendment No. 21: Page 4, line 28, leave out subsection (2).

The noble Baroness said: Clause 8 deals with the procedure for civil partnerships—in particular, with notice of a proposed partnership and declaration of the same.

The group of amendments covers two specific points of concern in Clause 8, and I hope that the Committee will not mind if I take a moment to outline them individually.

Clause 8 outlines the "standard procedure" for notice and declaration of civil partnerships. Amendment No. 21 would leave out subsection (2) which states that a notice must contain any information as may be prescribed by regulations.

As I have already stated, there is a large amount of detail on the face of this great big Bill, yet it seems that something as important as what information will be required on the notice that will be on public display has yet to be decided.

Once again, the Government are asking us to pass a Bill in which some of the detail is missing. I am sure that none of us would sign a blank cheque. Can the Minister explain why this information is missing from the Bill? Is the decision yet to be taken or is there some other reason why this has been left out of the Bill?

Amendment No. 22 addresses a point which was raised on Second Reading. It is clear from the rest of the Bill that a civil partnership is not something to be entered into lightly. I refer in particular to those clauses on annulment, to which I will return to in more detail later. However, nowhere in the Bill is there a provision to state that a partnership is for life. Is this an oversight on the Government's part or is it their intention that this important provision is not on the face of the Bill? If so, do they envisage that people will enter into civil partnerships for just a few years, rather than for a long-term commitment?

Our amendment would correct this error, if it is such, and make it clear to those entering into a civil partnership that this step should not be taken lightly. Such a commitment should involve careful thought and consideration, and we believe that this should be made clear. Our amendment would ensure that those entering into a civil partnership would have to declare in writing that they were entering into this commitment for life. I beg to move.

5.15 p.m.

Lord Lester of Herne Hill

May I say a brief word about Amendment No. 22? We have considerable sympathy with the purpose of the amendment, although not its form. If one is trying to make a comparison with the position so far as marriage is concerned, the Marriage Act includes, for civil marriage, various prescribed declarations that are options to be followed. However, none of them is exactly in parallel. For example, one of them is: I call upon these persons here present to witness that I, AB, do take thee, CD, to be my lawful wedded wife (or husband)". It would be very hard to find an exact parallel.

The point raised on Second Reading by the right reverend Prelate the Bishop of Oxford about the need for a verbal understanding that this is a commitment of two human beings to one another through all the vicissitudes of human existence is important. I do not think that the amendment would be apt because there is nothing equivalent about a commitment for life in the prescribed statutory language for civil marriage. However, it might be worth considering whether appropriate words of commitment on the registration document could be required to be signed by both parties. That seems to us a constructive way of meeting the object of the amendment but in a rather different way.

Baroness Scotland of Asthal

I understand that this is a probing amendment. The provisions here, just as in the Marriage Act 1949, make no reference to commitment for life. It is not that it is not proposed that these will be long lasting, but in the secular provisions of the 1949 Act, there is no reference to that commitment being for life either.

If we were to adopt Amendment No. 21, it would make necessary checks quite difficult to achieve, for example, for consent requirements, if a date of birth is not provided by the proposed civil partners on their notice of proposed civil partnership.

Clause 9 gives the registration authority power to require evidence to support any information given in a notice of proposed civil partnership. If this amendment is accepted, the Registrar General would lose the ability to make regulations to prescribe the information that the notice should contain and lose the flexibility to make changes to that information from time to time.

This will result in administrative difficulties in relation to establishing the eligibility of proposed civil partners and may also result in inconsistencies in the content of the register if different registration authorities go on to require different information from proposed civil partners.

Regulations to be made under subsection (2) are likely to prescribe a person's name, age, occupation, address and marital/civil partnership status—that is, single, divorced, previous civil partnership dissolved, widowed, surviving civil partner or marriage annulled.

Amendment No. 22 would insert a further declaration to those contained in a notice of proposed civil partnership. This would be a declaration that the intended civil partners state that the civil partnership is for life.

Clause 8 requires that for two people to register as civil partners, they must each give a notice of proposed civil partnership. The notice must contain a declaration about the parties' kindred, affinity or other lawful impediment, and their residence. Regulations may require other information to be given.

The current declaration assists in determining the eligibility of each of the proposed civil partners to form a civil partnership. However, the amendment would introduce an expression of intent rather than information that assists in the determination of the eligibility of the proposed civil partners.

Noble Lords expressed concerns on Second Reading that intending civil partners may not be aware of the many rights and responsibilities that flow from registering as civil partners of each other. I hear what the noble Lord, Lord Lester, says in relation to the way in which these matters could be dealt with.

We recognise this concern and are considering ways in which potential parties to a civil partnership are educated about the new legal relationship and what it entails. The Government have made it clear that they are providing civil partnerships for couples willing to undertake a serious, mutually supportive and indefinite commitment. That is apparent by virtue of the ancillary issues in terms of how a partnership gets annulled, how it is brought to an end, the consequences for maintenance and support, and so on. These are provisions which speak to long-term, as opposed to transitory, commitment. In particular, the ways in which one can get out of these partnerships demonstrate that. We have designed the rights and responsibilities on the basis that commitments will be long term.

We think that the formal procedure should be the simple but solemn process of registration which we have put in the Bill. It is right that the intending partners should be aware of the responsibilities they will be undertaking, but we do not see the need to add specific words or declarations to the registration procedure.

It is not the purpose of the notice under Clause 8 to set out declarations of intent and we think it would be wrong, for the reasons I have stated, to make this amendment.

I very much take on board what people have said about understanding consequences generally. One of the criticisms that has been made about entering marriage is that partners do not often fully understand what they are signing up to. Similarly, those who do not enter marriage do not always fully understand what they are forsaking. There is the whole issue of how we can better inform those who enter into these estates about the consequence of what they are seeking to do.

Lord Lester of Herne Hill

I am grateful to the noble Baroness. In my Bill, I think I was sufficiently coercive and conservative to require a couple to take legal advice before they entered into the registration, because I was so concerned that they should know what their obligations were, as well as their rights. I can perfectly understand the Government not doing that, because it would discriminate against gay couples compared with heterosexual couples who do not have, as the Minister said, to take legal advice of any kind as a condition.

I also understand that the Marriage Act does not, in its prescribed words, require a statement of commitment for civil marriage. I would be very interested to know what the noble Lord, Lord Alli, thinks about that. I wonder whether the right reverend Prelate the Bishop of Oxford is not right in saying that at least some words of commitment would be desirable. Without prescribing this on the face of the statute, could there not be a power to have prescribed words included in the registration document, not in a bureaucratic way but in a way which would achieve the object about which the right reverend Prelate and the noble Baroness, Lady Wilcox, are concerned?

Baroness Scotland of Asthal

I have indicated that information is an issue that we are considering. I also highlight the fact that these provisions are similar although not identical to those that currently prevail for those entering the secular state of secular marriage. That is why there is a wider debate, and many religions, as I remember well, have quite extensive marriage preparation classes. It has been known for people to think again, having gone through the process.

Lord Alli

Before the Minister sits down, I should like to say to the noble Lord, Lord Lester of Herne Hill, that I agree with the right reverend Prelate the Bishop of Oxford that it is a good idea for an oath of some description to be made. However, I am completely certain that we should not be involved in any way, shape or form in putting such an oath together. I can only take a guess at the kind of oath that the noble Lord, Lord Tebbit, or the noble Baroness, Lady O'Cathain, who are not in their place, might draft. I suspect that it would put many of us off at this stage.

Lady Saltoun of Abernethy

Can the noble Baroness give us any idea of what the cost of registering a civil partnership is likely to be? Perhaps that is a stupid question; I suppose that the cost may vary a good deal from one place to another. If a civil partnership is to be quite an expensive operation, then nobody is likely to enter into one lightly.

Baroness Scotland of Asthal

There is certainly no intention on the Government's part to make civil partnerships excessively or inappropriately expensive so that those who wish to enter into them may be discouraged. We have apportioned other costs on a cost-recovery basis. The cost of a civil partnership will, I imagine, be similar to the fees that currently prevail in relation to civil marriage. I cannot say whether it will be identical, but I imagine that it will be similar in terms of the bracket, because those fees are settled on a cost-recovery basis as well.

Baroness Wilcox

I am very grateful to the Minister for putting me right on civil marriage—there is no reference to life, so that is that one out of the way. I am delighted that the noble Lord, Lord Lester, was able to approve the proposal in substance, if not in form. Given that he has worked so hard on his previous Bill, I take it as a great support that he feels we are on the right track.

It would have been nice to see what the words will be. That was really all I was asking for, almost as a point of information. However, having listened to the exchange, I can see that some words of commitment seem to be a good idea, if only to prove to the people taking part in this debate that this is not just a money and a property Bill; it is not just a deal—it is something else. I have no choice but to withdraw the amendment, but may return with it at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 22 not moved.]

On Question, Whether Clause 8 shall stand part of the Bill?

Baroness Wilcox

We have just had a long debate on Clause 8, so I will keep this very short. There is a provision in the clause which requires the person applying for a civil partnership to have resided in England or Wales for seven days. This does not seem like a lot of time to have lived here before entering into such a large commitment. I am hoping that the Government will be able to explain the meaning behind the thinking on this point.

Baroness Scotland of Asthal

I am more than happy to explain why we have done this. The noble Baroness is absolutely right—Clause 8 provides that in order for two people to form a civil partnership under the standard procedure, each of them must have resided here, in England and Wales, for seven days or more before giving the notice. Those provisions are exactly the same in terms of the period of time that prevails for secular marriage. The notice must contain such information as may be prescribed by the regulations. The information to be given in the notice is to enable the public to identify the individual concerned when certain information contained in the notice is later publicised. It will also enable the registration authority to verify the proposed civil partners' eligibility.

The power allows the flexibility to prescribe such information as is considered necessary and to make changes to the prescribed form from time to time. The regulations may have to be amended to reflect technological and other changes.

The notice must also contain a solemn declaration in writing that the proposed civil partner believes that there is no impediment of kindred or affinity or other lawful hindrance. The declaration must further state that each of the proposed civil partners has met the residence requirements before giving notice.

5.30 p.m.

The declaration must be made and signed in the presence of an authorised person and the authorised person is then required to attest the declaration by adding his or her name, description and place of residence. As soon as possible on receipt of the notice, the registration authority must record in the register the fact that the notice has been given and the information contained in it. The fact that the authorised person has attested the declaration must also be recorded. Clause 8 provides that an authorised person is an employee or other person provided by a registration authority who is authorised by that authority to attest notices. It is a very formal procedure, similar to, but not identical with, that which prevails for civil marriage.

Clause 8 agreed to.

Clause 9 [Power to require evidence of name etc.]:

Lord Higgins moved Amendment No. 23:

Page 5, line 21, leave out subsection (3).

The noble Lord said: This follows on from the discussion that we had a moment or two ago. In the light of that debate, and as this clause requires evidence that the individuals have been resident for seven days, I am not sure why the seven-day period has been selected. Also, the Minister referred to the fact that the application has to be recorded but I was not clear to what extent it has to be published. Indeed, I am not aware of what the rules are with regard to an ordinary civil marriage. Of course, as far as a religious Church of England service is concerned, the banns have to be read for three weeks and so on. I am not clear about the relationship between what is proposed here, which is not, of course, a marriage procedure, and that situation.

At some stage, when one is going through the real nitty-gritty of a Bill, one always begins to wonder whether the draftsman has had a nervous breakdown. I began to get that feeling here in the light of what the Minister just said. Clause 9(1)(b) states that, if the registration authority considers that the circumstances are exceptional", he can require the information regarding both people rather than just one of the two. But the Minister said that both people have to produce evidence that they were in England or Wales for the period of seven days beforehand. The two things do not seem to be consistent. It would seem that the registration authority can either have the evidence it requires from one person or, in exceptional circumstances, from two but the Minister seemed to say that the registration authority would always need to establish that both persons have been in England or Wales for the relevant period.

I am also not clear why the Registrar General has to issue guidance when the details are set out in very clear terms in the Bill. These are fairly narrow and technical points, but I think that it would be helpful if they could be clarified as there seems to be inconsistency between what the Minister said and what the Bill says in Clause 9. I beg to move.

Baroness Scotland of Asthal

I understand that, in essence, this is a probing amendment. I understood Lord Higgins to say that the purpose of the amendment is to remove Clause 9(3) so that the specified evidence referred to in Clause 9(1) is not defined. Subsection (3) merely contains the definition of specified evidence.

The subsection defines the term "specified evidence" by reference to guidance which will be issued by the Registrar General to specify the acceptable forms of evidence that will support information about proposed civil partners—that is, the types of evidential matter that they have to present in order to be able to satisfy the registrar. This is the information given by a proposed civil partner when he or she gives notice to the registration authority. It is required so that the registration authorities may verify a person's eligibility to form a civil partnership.

Registration officers already collect evidence in respect of those wishing to enter into a marriage. They are familiar with the types of evidence that may be accepted and have considerable experience of dealing with those who may have difficulty in producing such evidence. More significantly, they can be confident that there is consistency across registration districts about what evidence is required before authority for a marriage to proceed is given. This is particularly significant where a registration officer is to conduct a marriage on the strength of an authority issued in a different registration district.

For civil partnership, subsection (3) lists the information in question as the person's name and surname, age, status (for example, whether single or previously in a civil partnership or marriage and, if so, whether widowed or divorced), nationality and usual address. Listing in the Bill the information that civil partners will need to supply, and in relation to which the Registrar General may specify acceptable evidence, will assist the proposed civil partners. Retaining this subsection will help to make the verification process open as well as effective.

Requiring evidence to support information given by proposed civil partners assists registration authorities and the Registrar General to establish eligibility. Establishing eligibility is important. If the Registrar General issues guidance stating what evidence is acceptable to support this information there will be a consistent approach across registration authorities as to how they establish whether a person meets the eligibility criteria. If subsection (3) is removed, the types of information that will have to be supported by the evidence specified in guidance will no longer be clear in the Bill. We think that that would be likely to lead to confusion and difficulty. The guidance will set out what may be sufficient evidence of the information listed and we think that that will make it fit together. Now that there is so much mobility between different parts of the country, consistency is ever more important.

Lord Higgins

I am still not absolutely clear whether the registrar has to take evidence from both individuals rather than only one, except in exceptional circumstances.

Baroness Scotland of Asthal

It would usually be from both individuals, who would have to produce evidence of name, residence and the other criteria which would have be supplied in relation for both parties entering into that union.

Lord Higgins

With respect, I do not think that that is what it says in Clause 9(1)(b). If I understand it correctly, he has only to look at both in exceptional circumstances, not normally.

Lord Lester of Herne Hill

I agree with the noble Lord, Lord Higgins. Certainly the drafting does not indicate that it is normally both.

Lord Higgins

I think that the draftsman has got it wrong. Perhaps the Minister will look at it again.

Baroness Scotland of Asthal

What it says in the Bill is that the information has to be taken from the person giving the notice and can be requested from the other. That is the way the Bill is structured. What sort of evidence would verify that would be in the guidance and the regulations—birth certificates, or whatever. I hope that that is clear, but I will happily look at it again.

Lord Lester of Herne Hill

The problem is that the way Clause 9(1) is structured suggests that asking both is exceptional, not normal.

Lord Higgins

If we can agree that the Minister will look at it again, I will withdraw the amendment.

Baroness Scotland of Asthal

It may be that it is because of the temperature. I believe that I am being clear but I may not be as clear as I believe and therefore I will look at this matter and I hope to write succinctly to noble Lords to make sure that the definition is as robust as we would like it to be.

Amendment, by leave, withdrawn.

Clause 9 agreed to.

Clauses 10 and 11 agreed to.

Clause 12 [Power to shorten the waiting period]:

On Question, Whether Clause 12 shall stand part of the Bill?

Lord Higgins

This is a way of probing the Government on the precise provisions with regard to power to shorten the waiting period, which is only 15 days. I have difficulty in envisaging what circumstances might exist, which the Government seek to cover in this clause, that would make it so urgent that a civil partnership should be created that the period of even 15 days is too long. It is difficult to know what the Government have in mind. It may be related to some of the later clauses that we will come to fairly soon concerning situations in hospitals or, effectively, deathbed situations and so on. It seems to be going a very long way to say that the matter is of such urgency that the wait has to be not 15 days but as short a period as the Registrar General—I presume that it would be some official of the Registrar General in practice—will determine.

Lord Lester of Herne Hill

I very much hope that Clause 12 will be agreed as it stands because it includes a very necessary compassionate power. Lord Higgins has indicated when it would be expected to be used—for example, if a gay or lesbian couple have lived together for 30 years and one is on his or her deathbed or suffering from a terminal illness and they wish to register before that partner dies in order that the surviving partner will have survivor's benefits. Therefore one needs this benevolent discretion. Knowing the noble Lord, Lord Higgins, as I do, I am quite sure that he would not wish to fetter that discretion, provided that it was exercised in the way that Clause 12 states.

Lord Alli

I agree with the noble Lord, Lord Lester of Herne Hill, about what I suspect this clause is trying to do, particularly in circumstances where someone is terminally ill or dying and there is a request to reduce the waiting period. I would be sure that the noble Lord, Lord Higgins, would not wish to fetter that discretion were it not for Amendments Nos. 26 and Clause 19, which both stand in his name. There are circumstances that cannot be specified in the Bill. There are always circumstances that we cannot envisage, but there are sufficient that we can. I think that this clause is very workable and a necessary part of the Bill.

5.45 p.m.

Baroness Scotland of Asthal

There are in fact two sets of provisions. The provision with which Clause 8 deals is different from the special procedures to which we will come that deal with the separate situation that arises when someone may be dying. The relevant provision in Clause 12 states: If the Registrar General … is satisfied that there are compelling reasons because of the exceptional circumstances of the case for shortening the period … he may shorten it". One example would be an unexpected military posting overseas. If someone suddenly discovered that he is to be posted to Iraq then that might be a compelling reason if there were not time to complete the required 15-day waiting period. Those are exceptional circumstances. He could produce his orders and the registrar might say, "Very well. I will foreshorten the notice period".

Subsection (2) states: Regulations may make provision with respect to the making, and granting, of applications to shorten the waiting period. Subsection (3) states: Regulations under subsection (2) may provide for … the power"— to shorten the waiting period— … to be exercised by a registration authority on behalf of the Registrar General in such classes of case as are prescribed by the regulations". The regulations may also provide for, the making of an appeal to the Registrar General against a decision taken by a registration authority on the Registrar General's behalf.

In those types of exceptional circumstances, which cannot be foreseen but which are absolutely understandable, the Registrar General can exercise his discretion in favour of the couple. I saw the noble Lord, Lord Higgins, nodding. I hope he therefore understands why I think Clause 12 should stand part.

Lord Higgins

It is always helpful to have examples, when the drafting may be somewhat obscure, of what is really in the mind of the Government and also the draftsmen.

Clause 12 agreed to.

Clause 13 agreed to.

Clause 14 [Issue of civil partnership schedule]:

[Amendment No. 24 not moved.]

Clause 14 agreed to.

Clause 15 agreed to.

Clause 16 [Frivolous objections and representations: liability for costs etc.]:

Lord Higgins moved Amendment No. 25: Page 7, line 32, leave out "purporting to be

The noble Lord said: This, too, is a fairly narrow—indeed, semantic—point, but it is not quite clear. The section as a whole deals with frivolous objections and representations. However, subsection (4) states: For the purpose of enabling any person to recover any such costs and damages, a copy of a declaration of the Registrar General purporting to be sealed with the seal of the General Register Office is evidence that the Registrar General has made the declaration".

There seems to be an implication that everyone is going round sealing these declarations, when in fact they are not able to do so, but if they succeed in wrongly sealing such a declaration—that is, they are not authorised to do so—it will none the less have effect. I find that slightly curious, but no doubt the noble Baroness can explain it from a legal point of view.

Baroness Crawley

I hope that I will be able to make this clear to the noble Lord, Lord Higgins, even if it is not from a legal point of view as far as I am concerned.

The purpose of Amendment No. 25 appears to be to require proof that the seal of the General Register Office has been attached to a copy of a declaration issued by the Registrar General relating to a frivolous objection. As we see it, the effect of the amendment is that the person producing the copy declaration will have to prove that the seal actually is the seal of the GRO. This would have to be done by asking the person who attached it to appear to confirm the position or to ensure that there was a witness statement that confirmed it.

We believe that this is unnecessary. The term "purporting to" first appeared in the Marriages and Registration Amendment Act 1837 and has served us well in the intervening years. It fact, it appears in the Marriage Act 1949 and the Marriage (Registrar General's Licence) Act 1970. It is not necessary at this stage to introduce a difference between the civil partnership legislation and the marriage legislation in this respect. I ask the noble Lord to withdraw this amendment.

Lord Higgins

I am trying to remember whether in 1837 we had a Conservative government. I am still somewhat puzzled by this clause. We may be perpetuating a most grievous error because I do not understand who is going to challenge the fact that someone has forged the seal on the document, at any rate for purposes of this nature that, after all, are not a matter of life and death. But if the Government are satisfied that we should go along with precedent, I would not wish to object to it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 16 agreed to.

Clauses 17 and 18 agreed to.

Clause 19 [Detained persons]:

Lord Higgins moved Amendment No. 26:

Page 9, line 7, leave out from "detentions))" to end of line 8.

The noble Lord said: This is a clause that is concerned with people wishing to register as civil partners of each other when one of them is detained. I presume that it applies also if both of them are detained, rather than only one. Be that as it may, we seem to be going into the most incredible detail on all of this. When we come to the really crucial issues on tax credits or whatever, the whole matter is handled by order. I find the balance of the Bill somewhat bizarre. In all events, for the purpose of establishing the Government's position, this amendment suggests that we should knock out the suggestion that someone who is in prison, or another place to which the Prison Act 1952 applies, should be able to engage in a civil partnership. I am not the least bit clear what the situation is as far as a normal two-sex marriage is concerned and whether existing legislation on marriage makes specific provision of the kind that we have in this clause. That is essentially the point on which it would be helpful to have the Government's views. I beg to move.

Lord Lester of Herne Hill

My memory is notoriously bad, and I shall be corrected by government legal advisers if I am mistaken, but I believe that the origin of this is in a case called Hamer v the United Kingdom where a prisoner complained that he was not allowed to marry while detained in prison. The European Court of Human Rights held that to be a breach of his human rights. As a result, I believe, but I could be quite wrong, that the law had to be changed.

What this provision does is to provide exactly the same right for a homosexual prisoner as is provided for a heterosexual prisoner. That seems to me to be right if we are seeking to remove an inequality. Of course, delicate and difficult matters arise when prisoners marry and I have often heard fanciful ideas that, for example, once married, they could both be in prison together or share the same cell or, if they had babies, they should be able to have them with them. I think that those arguments are incorrect under the Human Rights Act because it is quite clear that proportionate restrictions that may be placed on the rights of prisoners in the interests of good order and discipline in prison conditions must be complied with. So I do not think that in fact homosexual registrations of prisoners with other prisoners or free partners give rise to any greater problems than heterosexual marriages, except that, of course, we do not have co-educational prisons in which men and women normally stay together.

Those kinds of human rights arguments might be considered by the Joint Committee on Human Rights when it comes to scrutinise the Bill. I cannot speak for what our Committee will say about that, but it does not seem to me that there is any objection in principle to treating detained people who are homosexual in the same way as those who are heterosexual, so far as this is concerned.

Lord Alli

I very much agree with the noble Lord, Lord Lester of Herne Hill. I think that the Bill as drafted is right.

The noble Lord, Lord Higgins, has returned to his theme on several occasions. The theme runs something like this: he does not understand why this Bill is so detailed in the parts that deal with relationships and he is very confused as to why there is no detail in the more important part of the Bill, the meat of the Bill as he calls it, the financial aspects. I suspect that the reason is that fundamentally he has failed to understand that the Bill deals with the relationship and that is the most substantive part.

The second thing that I hope the noble Lord, Lord Higgins, will take on board is that, given that the institutions of marriage and civil marriage have been around for a very long time, it seems to me to be sensible for the Government to use the experience of all the circumstances which they have previously had to deal with, to read them directly across to the Bill, and to put in a level of detail that will save having to reinterpret every time that circumstances are difficult. I think that the Government are to be applauded for the detail in the Bill because I think that, in the end, it will save a huge amount of heartache for individuals who will not have to go to court to test this legislation over and over again. I do not think that the Minister need apologise for the detail and I think this a very good example of why this should stay in the Bill.

6 p.m.

Baroness Scotland of Asthal

The noble Lord, Lord Lester, dealt with the kernel of the issue, but I understand the need of the noble Lord, Lord Higgins, for clarity and am happy to provide it.

The purpose of Amendment No. 26 is to restrict the provision for detained persons to form civil partnerships at their place of detention to those detained under the Mental Health Act 1983. It would remove the provision for those detained in a prison to form a civil partnership at their place of detention. Straight away, I accept that it is a probing amendment, but if the intention is not to allow any prisoners to enter civil partnerships, it fails. However, from what the noble Lord said, I do not think that that was his intention.

Low-risk prisoners may be allowed temporarily to leave their place of detention to give a notice of proposed civil partnership and be subsequently released to attend a place for the registration of the civil partnership. That happens for civil marriage—or marriage—at present. We should also consider the impact that the amendment would have on the proposed partners of those detained in prison who could not be allowed to leave their place of detention to form a civil partnership. The amendment would introduce a difference between the eligibility requirements and procedure for civil partnership and equivalent arrangements for civil marriage, which is unacceptable.

As my noble friend Lord Alli said, what we have done is to consider our experience and how we have dealt with those who are detained who want to enter the estate of marriage and consider the analogous arrangements that may need to be transported over if such persons want to enter a civil partnership. It is important to emphasise that, throughout the Bill, we have sought parity of treatment—here, parity of treatment between those detained in prison and their partners who want to marry, and those detained in prison and their partners who want to form a civil partnership.

Accepting the amendment would send a message contrary to the Bill, a message that says that same-sex couples should be treated significantly differently and therefore, many would say, unfairly, in their access to legal recognition for their relationships. I know that that is not the intention of the noble Lord or the noble Baroness, Lady Wilcox, and I hope that that explains why we have mirrored the provisions as we have.

Lord Higgins

I am grateful to the noble Baroness for that reply. I do not think that she has answered my first point, which refers to Clause 19(1), which states: if two people wish to register as civil partners of the other at the place where one of them is detained". What is the situation if both of them are detained in that place? The provision seems to exclude that possibility. I take the points made about the clause by the noble Lord, Lord Lester, and, in general terms, the points made by the noble Lord, Lord Alli. There are two aspects: is most of it too detailed; are the financial and other aspects insufficiently detailed? I am more concerned about the second, because we really do not know what on earth is going on and the Government remain extraordinarily reluctant to spell it out or to write it into the Bill. Too much is done by regulation.

As to the first point—whether we need as much detail as we have—that has been something of an emotional problem for the Government. They say that they are anxious—we support them on this—that civil partnerships are not marriage, but none the less they duplicate in incredible detail throughout the provisions that would exist if they were married. One cannot help but wonder whether it would not have been simpler to recognise that it is not marriage but to say that the same provisions will apply throughout and we could get away with half a dozen clauses, which would have saved everyone a great deal of trouble.

I raise another point in this context: the proposition that a wife cannot give evidence against her husband, and I assume that the reverse is true. What is the situation if a couple are in prison and suddenly form a civil partnership, which may be relevant to whether one of them is required to give evidence?

Baroness Scotland of Asthal

The consequences of having entered into the partnership are that they will have a similar advantage to those who have entered into a marriage, so they would not be compellable witnesses.

Lord Higgins

I thank the Minister for that reply and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 19 shall stand part of the Bill?

Lord Higgins

I am grateful to the noble Lord, the Deputy Chairman, for elucidating the procedure about what one does if one has tabled an amendment to leave out the clause—namely, that one does not have to do that. On the face of it, that may seem rather strange. Personally, I fear that I am still somewhat wedded to the House of Commons procedure, which is that there is a stand part debate on every clause in which one can pick up the points made in earlier amendments and one does not have to go through this rather strange procedure. Still, I am sure that it predates even 1867, when we may or may not have had a Conservative Government.

I turn to the other part of the clause, with which we have not dealt in discussing prisons: namely, the situation regarding hospitals. I fully appreciate that there may be a very strong case for people in hospital to be able to engage in a civil partnership, even if the person involved is seriously ill. That may bring out rather too strongly the points about inheritance tax to which the noble Lord, Lord Alli, is anxious for us not to draw attention, but I am not clear exactly what the Government have in mind.

In particular, I am not clear why the establishment—in this case, the hospital—has to make supporting statements giving information in manners to be prescribed by regulation. That is a combination of the two problems that we were facing earlier: on the one hand, the Bill is extremely detailed; but when we come to the crunch, provision must be made by regulation. Perhaps the noble Baroness could tell us what kind of information will be required and, indeed, why the establishment concerned should be required to provide it.

Baroness Scotland of Asthal

Once again, the provisions echo similar provisions to be found elsewhere. As the Committee will know, Clause 19 allows two people to register as civil partners of each other at the place where one of them is detained. For these purposes, detained means detained as a patient in a hospital or detained in a prison or other place to which the Prison Act 1952 applies. Subsection (3) provides that the procedure for detained persons is the same as the standard procedure, with a number of exceptions.

First, each notice of proposed civil partnership must be accompanied by a supporting statement that must have been made more than 21 days before the date on which the notice was recorded. Secondly, the supporting statement must have been received and recorded in the register; and, thirdly, the applicable period during which the registration may take place is reduced to three months from the day on which the notice is reported in the register. The supporting statement is made by the hospital's manager or the officer in charge of the prison and must identify the establishment where the person is detained. It must state that the manager or officer has no objection to that establishment being specified in the notice as the place of registration. Regulations may also prescribe information that must be contained in the supporting statement.

Those issues are important. The noble Lord, Lord Lester, talked earlier about issues of discipline, whether marriage is to be permitted or not, release and other matters. It is for those reasons—sensible, practical, pragmatic reasons—that the clause has been structured as it has.

Lord Higgins

Taking the case of hospitals rather than that of prisons, I am not clear why the hospital authority needs to provide the statement, unless it is simply as an indication of residence—which, anyway, is only for a period of seven days, whereas the noble Baroness said that they must provide a statement 21 days ahead and also referred to a period of three months. What is the relevance of the supporting statement? It may be in existing law as regards marriages, but what is its purpose?

Baroness Scotland of Asthal

The purpose is to guarantee that either the hospital or the prison agrees to its premises being so used. There may be important security reasons as a result of the nature or the cause of why the person has been detained. It may be that for various reasons either the hospital or the prison concerned does not consent to its premises being used for that purpose. The provision also takes into account the fact that the registrar attending for registration might have to make further or other arrangements.

The statement is the evidence that the establishment, having taken into consideration the particular and sometimes peculiar needs of the case, is satisfied that the establishment is, for security or other reasons, an appropriate place for the registration. Those issues are slightly more complex than if one is just going to registered premises that a local authority makes available.

Lord Higgins

I have only one further point to make about that, which is that if the hospital or prison refuses to allow the process to proceed—this is more the type of point made by the noble Lord, Lord Alli, than by me—is the hospital or prison authority protected from any action as a result of having deprived the people concerned of the right to enter a civil partnership?

Baroness Scotland of Asthal

It all depends on the authority having acted reasonably. Any authority that fails to act reasonably within given circumstances could he subject to some form of review. The provisions are predicated on the acceptance and acknowledgement that those running hospitals—including hospitals for the mentally ill or special hospitals, where there are even more trenchant security concerns—and prisons need to be consulted about the use of their premises and whether they can provide the sort of support that would make a registration possible.

For instance, the Committee need only consider times when there may be heightened security or other reasons and the hospital or prison may simply say that it is sorry, but that at that precise time and because of the circumstances, it simply cannot agree to the premises being used in the manner proposed.

Lord Higgins

I am most grateful.

Clause 19 agreed to.

Clause 20 [Modified procedures for certain non-residents]:

Baroness Scotland of Asthal moved Amendment No. 27:

Page 10, line 29, at end insert—

"( ) section 31 applies as if in subsections (1)(a) and (2)(c) for "each notice" there were substituted "B's notice"."

The noble Baroness said: These government amendments were not expected to be considered before Monday 17 May, seven days after we tabled them. The purpose of Amendment No. 27 is to modify the application of Clauses 31(1)(a) and (2)(c), to take account of the fact that in the circumstances in which Clause 20 applies, only one notice of proposed civil partnership will be given. These clauses deal with criminal offences.

Under Clause 20, only the proposed civil partner resident in England and Wales is required to give notice of proposed civil partnership to a registration authority in England and Wales. The other proposed civil partner gives notice in Scotland or Northern Ireland or, where he or she is a member of Her Majesty's Armed Forces serving outside the United Kingdom, to his or her commanding officer. This would be under an Order in Council made under Clause 174. This is a technical amendment that helps to clarify the position regarding the offences in Clauses 31(1)(a) and (2)(c). Combined with Amendments Nos. 29 and 30, there will be no room for doubt.

Where a registration procedure requires two notices of proposed civil partnership to be given, it will be an offence for the civil partnership schedule to be issued before the end of the waiting period in respect of each notice of proposed civil partnership. However, where only one notice is required, as in the circumstances in which Clause 20 applies, it will be an offence for the civil partnership schedule to be issued before the end of the waiting period relating to that notice.

6.15 p.m.

The purpose of Amendments Nos. 29 and 30 is to clarify in Clauses 31(1)(a) and (2)(c) the circumstances in which a criminal offence may have been committed relating to the issue and the signing of the civil partnership schedule. As they stand, Clauses 31(1)(a) and (2)(c) state that it is an offence either to issue or to officiate at the signing of a civil partnership schedule before the end of the waiting period. However, notices of proposed civil partnership may be given by the proposed civil partners on different days. If that is the case, the waiting periods will not be concurrent but will start and end at different times.

The amendments will therefore make it clear that it is an offence to issue or to officiate at the signing of a civil partnership schedule before the end of the waiting period of each notice of civil partnership. That is regardless of whether the notices were given on the same or different days. I beg to move.

Lord Higgins

This is the first government amendment that we have considered. After this, the deluge. My noble friend Lord Tebbit has already made some comments about the extent of government amendments to the Bill. There was, I suppose, a reasonable number to the main part of the Bill but since, as a result of the Government's reconsideration of particular areas, especially Northern Ireland, we have had more than 100 pages of amendments. As my noble friend rightly said, this is in no sense a happy way to proceed.

I see little point in protesting at great length about this, but I feel bound to say that it would have been far better if the amendments had been included in the Bill as originally printed. We could then have seen the picture as a whole right from the beginning. I shall say no more than that. It is highly unsatisfactory; that is where we stand.

We are grateful to the Minister for her explanation and will be grateful to her for the explanations that she will no doubt give on the large groups of amendments that are to follow. It may be helpful if, on some of them, we have what is in effect a Second Reading debate, in order to proceed in an orderly manner.

I make one final and extremely trivial point—but one that is not entirely unrelated to convenience. If one looks at page 110, for example, of the Marshalled List— I picked the page at random—under the page number, it states, "Amendment No.", followed by a total blank. I am not the least bit clear what is the purpose of that. If one is flicking through at high speed, as we have had to do today before our debate, to sort out the amendments, some of them go on for pages and pages. It would have been very helpful to have had at the top left-hand corner a reference to which amendment was involved. Otherwise, one has to flick all the way through to find out. Is that simply a printing error or were the amendments so complex that fatigue set in?

Baroness O'Cathain

May I just point out that that particular amendment is 25 pages long so it will need an enormous amount of scrutiny, research and all the rest of it. It will be very difficult to try and deal with it.

Baroness Scotland of Asthal

If one looks at page 39 it becomes clear that Amendment No. 63A seeks to insert a schedule into the Bill. Noble Lords will know that we will have had sight of the schedule and the whole of this part because we will have had very similar provisions in relation to England and Wales and Scotland. As I hope I made clear, the only differences between the schedules and amendments that relate to Northern Ireland and those that relate to England and Wales and Scotland are those differences that reflect the differences in procedure. The substance for England and Wales, Scotland and Northern Ireland, based on the principles that we have been talking about, is the same.

Noble Lords will remember that in Northern Ireland the consultation period ended later than the consultation periods in England and Wales and Scotland. It was for that reason that it was felt to be inappropriate to table any amendments until after there had been a proper opportunity to consider what the consultation process showed and after there had been an opportunity to make a principled assessment of whether these provisions should be included. That is the history. In answering the noble Lord, Lord Tebbit, I have already set out that we had foreshadowed that this was going to happen. The usual channels agreed it in November. On 27 November last year we said that this was going to happen. We indicated the likely nature and extent of the amendments before the Bill. Further notice was given at Second Reading when I made clear what we were going to do. After Second Reading, I believe it was on 29 April, I wrote to noble Lords who participated in Second Reading alerting them about the proposals that we intended to make in relation to Northern Ireland.

I understand what the noble Lord, Lord Higgins, says but it is not right to say that there has been any impropriety or discourtesy. The usual channels have been fully involved, they have agreed that the process was proper and we have assiduously followed it. We have tried to give noble Lords as much notice as possible, by meetings and by the letters that I have written since the inception of this Bill.

Lord Goodhart

I shall briefly take up the point made by the noble Lord, Lord Higgins, about the printing of the Marshalled List. I think there is a problem there. It is no doubt a matter for the Public Bill Office rather than the Government. If one turns, for example, to page 80, one has no idea which amendment it is and whether you need to go forwards or backwards to find the amendment you are looking for.

Baroness Scotland of Asthal

I have sympathy with what the noble Lord, Lord Goodhart, says in the same way as I have sympathy with what the noble Lord, Lord Higgins, and the noble Baroness, Lady O'Cathain, have said. This is a matter for the House authorities. I am sure that this will be drawn to their attention by Hansard.

Earl Ferrers

In that case, as the noble Baroness has had sympathy with what has been said by my noble friends Lord Higgins and Lady O'Cathain, and the noble Lord, Lord Goodhart, perhaps she will have some sympathy with me too. I want to make the same point. My noble friend Lord Higgins said that this is a very trivial point. I do not think that it is trivial at all. It is just a question of comprehension. If one looks at page 39 of the Marshalled List, one gets Amendment No. 63A. If one looks at page 82, one gets Amendment No. 63C. One has to go through all these pages to find out where Amendments Nos. 63B or 63D are. It is highly complicated. I am sure that it is not the responsibility of the noble Baroness, but if she could ask somebody to make it clear, it would be a great help.

Baroness Scotland of Asthal

I certainly will. The House authorities make every effort to assist us and do all they can to make sure that our job is as simple as it can be made bearing in mind the nature of the legislation with which we have to deal. I am sure that they will be alive to this issue. The entry in Hansard will be brought to their attention. I hope that there will he a happy resolution of the matter.

On Question, amendment agreed to.

The Deputy Chairman of Committees

It would be improper for me to go into the issue before the Committee, but I have to say from the Chair that the pleading which has gone on in relation to the Marshalled List applies to the Chair as well. In trying to prepare oneself to follow what is going on, it would be of enormous help if the amendment number were put at the top left hand corner. I hope that the authorities will take note of that.

Clause 20, as amended, agreed to.

Clause 21 agreed to.

Clause 22 [Evidence to be produced]:

Lord Higgins moved Amendment No. 28:

Page 11, line 13, leave out paragraph (a).

The noble Lord said: This amendment concerns the evidence to be produced when a person proposes to register a civil partnership. One of the conditions is that one of the proposed civil partners is seriously ill and not expected to recover. I suggested earlier that this might be a circumstance in which a couple decide that they would like to form a civil partnership. Perhaps their relationship has lasted some time. It seems a little strange that they should decide to form such a partnership when one of the proposed civil partners is literally on his deathbed, so to speak. A couple may also decide to form a civil partnership in such circumstances when their relationship has not lasted very long. I refer to the considerable implications of forming such a partnership with regard to taxation and so on.

The other matter that slightly puzzles me also concerns the condition in Clause 22(2) where someone is not expected to recover. That is clearly not a happy circumstance. However, Clause 22(3) states: But the certificate of a registered medical practitioner is sufficient evidence of any or all of the matters referred to in subsection (2)". I simply do not understand why the word "but" is included. Perhaps the Minister can explain that. I beg to move.

Baroness Crawley

I hope that I shall be able to clarify the matter for the noble Lord, Lord Higgins. Clause 22 provides that a person giving notice under the special procedure must produce to the registration authority such evidence as the Registrar General may require to satisfy him that the special procedure should be used.

The registrar may require evidence that there is no lawful impediment to the formation of the civil partnership and that there is sufficient reason that a licence should be granted.

The person giving notice will also have to produce evidence to show that the two conditions for using the special procedure are met. These conditions are that one of the proposed civil partners, is seriously ill and not expected to recover, and that that person, understands the nature and purport of signing a Registrar General's licence".

The streamlined special procedure is available only when one of the parties to a proposed civil partnership is seriously ill and not expected to recover. The special procedure provides for a couple to form a civil partnership very quickly because the seriously ill person may not live long enough to complete the 15-day waiting period that is required under the standard procedure.

I would ask noble Lords to withdraw their amendment, if, as I assume, it is a probing amendment. However, if it is not a probing amendment, I am happy to clarify further.

6.30 p.m.

Earl Ferrers

Perhaps the noble Baroness could go a little further. I have a great deal of sympathy with my noble friend Lord Higgins. Clause 22(2)(a) relates to a person who, is seriously ill and not expected to recover". That is a pretty condemnatory statement for any person to have to make. One is really saying. "This person is ill and I can tell you that he is going to die". What happens if a person is seriously ill and is expected to recover? I suppose that this does not apply. The whole thing hinges on someone's assessment—one may ask whose assessment—that the person will die. That seems to be pretty hot stuff.

Baroness Crawley

We would agree to take this matter up with parliamentary counsel. The effect of Clause 22 is that the production of a certificate, which is provided by the registered medical practitioner, is sufficient evidence that the conditions under the special procedure are met; that is, the person will not recover as far as the medical conditioner is concerned at that time.

Earl Ferrers

Would any medical practitioner give an undertaking that the person who is in his charge will not get better? That is asking an awful lot for a doctor to say. I should think that most doctors would say that they are not prepared to do that. The whole point of being a doctor is to try to help people to get better.

Baroness O'Cathain

What would happen if, in the case given by my noble friend Lord Ferrers, the seriously ill person is expected to recover?

Baroness Crawley

If the seriously ill person is expected to recover, the Registrar General would consider that it is reasonable for that person to wait until they are sufficiently well and to use the standard procedure for the civil partnership schedule.

Lord Higgins

We are getting a little disorderly with all this jumping up and down. I am not clear why the seriously ill person who is expected to recover should wait, when the person who is seriously ill and not expected to recover does not have to wait. I can understand why the person cannot wait, but I do not see why the person who is expected to recover should have to wait.

Baroness Crawley


Lord Higgins

I shall give way in a moment. I still am not clear whether that is the same procedure as exists as far as an ordinary marriage ceremony is concerned. Perhaps the Minister could clarify that. I remain unclear about why at the beginning of subsection (3) the word "but" appears, unless it is expected to indicate the kind of hesitation that my noble friend Lord Ferrers has just indicated in respect of any registered medical practitioner giving such a certificate.

The Lord Bishop of Peterborough

I hesitate to intervene. My colleagues who are hospital chaplains are probably very familiar with dealing with cases where a person is known and understood to be terminally ill. I stand to be corrected, but I think that there is a similar provision in the marriage Acts. Procedures can be shortened so that someone who is in that condition can marry. This parallels that provision for a civil partnership and therefore seems entirely reasonable. If the person is expected to recover, he or she can wait. The marriage can take place—in this case, the civil partnership—and be registered in due procedure.

Baroness Crawley

I am very happy to write to the noble Lord. I take it that the word "but" refers to the conditions in Clause 22(2), which are that one of the proposed civil partners comes under either paragraph (a) or paragraph (b). But the certificate of a registered medical practitioner is sufficient evidence of any or all of the matters referred to in that subsection. No further evidence is needed.

Baroness O'Cathain

Surely, unless I am completely cockeyed, the conditions are both that one of the proposed civil partners "is seriously ill" and that he "understands". It is not, as the Minister has just said, either.

Baroness Crawley

It is both.

Baroness O'Cathain

The noble Baroness said "either".

Baroness Crawley

I apologise.

Earl Ferrers

On one more trivial point, is it grammatically correct to start a new sentence with the word "But"?

Lord Higgins

I think that the answer is "no". We have probably clarified most of the points. The right reverend Prelate referred to possibly very tragic circumstances, which reflect the same situation as exists in the case of marriage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 22 agreed to.

Clauses 23 to 30 agreed to.

Clause 31 [Offences relating to civil partnership schedule]:

Baroness Scotland of Asthal moved Amendments Nos. 29 and 30:

Page 13, line 30, leave out "end of the waiting period," and insert "waiting period in relation to each notice of proposed civil partnership has expired,"

Page 13, line 40, leave out "end of the waiting period," and insert "waiting period in relation to each notice of proposed civil partnership has expired,"

On Question, amendments agreed to.

Baroness Wilcox moved Amendment No. 31: Page 14, line 2, leave out "5" and insert "3

The noble Baroness said: All the amendments in the group concern the substitution of numbers. Amendments Nos. 31 and 33 would have the effect of changing the maximum imprisonment term for offences under the Bill. The Bill prescribes five years in prison as the maximum penalty for committing an offence relating to a civil partnership schedule and three years for an offence relating to a Registrar General's licence.

Why have the Government chosen those limits for those two offences? Can the Minister explain why they are, certainly in sentencing terms, so very different? What other similar offences are there that can carry such sentences, which seem to be rather harsh? Can the Government explain why that is so?

Amendment No. 33 also concerns Clause 31, headed, Offences relating to civil partnership schedule". Subsection (4) states: A prosecution under this section may not be commenced more than 3 years after the commission of the offence".

The amendment has been tabled to find out the Government's thinking behind that limitation period. Are there any examples of similar offences that have the same or a similar limitation period? I look forward to clarification, if it is possible, on the points that those amendments have raised. I beg to move.

Baroness Scotland of Asthal

I can deal with this matter briefly and simply. These maximum prison terms are similar to the terms that apply to civil marriage. The maximum imprisonment term of five years, for similar offences relating to the equivalent document in marriage law to the civil partnership schedule, was considered appropriate at the time when the relevant marriage legislation was introduced. Likewise, the maximum imprisonment term of three years for offences relating to the Registrar General's licence for marriage were also considered appropriate at the time when the relevant marriage legislation was introduced.

We have considered these maximum terms and take the view that they remain appropriate. Furthermore, there are no plans to alter these sentences in relation to the comparable marriage law offences in the forthcoming regulatory reform order on marriage law reform. The current provisions reflect equivalent marriage law provisions and we do not wish to introduce avoidable divergence between the sentencing provisions of civil partnership legislation and marriage law in relation to very similar offences.

The amendment to increase the period within which a prosecution may be brought for offences against the civil partnership schedule is resisted for the reasons that I have outlined. In addition, the amendment would also introduce an inconsistency in the Bill in relation to the period during which a prosecution may be brought for similar offences. That is because one is looking at the nature of the activity and seeking to attach an appropriate penalty to that activity. So, we have used marriage, because it is the most closely related type of situation for dealing with similar types of abuse. The consequences that will flow from the breach will be similar, although not identical, to that which would flow from the consequences of entering into a civil marriage.

Baroness Wilcox

I thank the Minister for that clarification and her answer. When I started considering this Bill, I decided to try to avoid the word "marriage" wherever possible, because it seemed so emotive. But every time that I stand up to ask a question I seem to have that word thrown back at me. I am unable to avoid it. "Civil marriage" it is—and we are mirroring civil marriage in these amendments. I thank the noble Baroness for that clarification and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 32 not moved.]

Clause 31 agreed to.

Clause 32 [Offences relating to Registrar General's licence]:

[Amendment No. 33 not moved.]

Clause 32 agreed to.

Clause 33 agreed to.

Clause 34 [Fees]:

Lord Higgins moved Amendment No. 34:

Page 15, line 18, leave out "Chancellor of the Exchequer" and insert "Secretary of State"

The noble Lord said: This clause is concerned with the fees that may be charged. I am sorry that the noble Lord, Lord Alli, is not in his place, as he would certainly be worried if any reference were made to financial matters where the words "Chancellor of the Exchequer" appear. Given that the Chancellor of the Exchequer does not appear anyway—except, perhaps, in the background—I am not clear why he should suddenly appear at this stage. The Bill is not a Treasury Bill. Indeed, it seems appropriate that the "Secretary of State" should instead be the expression used. Of course, that does not refer to any specific Secretary of State, it refers to whichever Secretary of State is relevant to this particular clause. That would seem to be a better way of approaching this matter with regard to these fees.

I shall make one other point. The Chancellor of the Exchequer is apparently to be over-ridden by the Registrar General in circumstances where the fee, in the view of the Registrar General, would impose hardship if it were to be paid by the proposed civil partners.

The noble Baroness, Lady Scotland, already said that those fees would be moderate. It is very strange that the fees should be able to be remitted by the Registrar General. Perhaps the noble Baroness can give us some indication of the size of those fees, which are so great as to cause hardship in any case whatever. If the circumstances are that tight, all kinds of wider issues are raised about what is happening. In all events, it seems more sensible to have the Secretary of State doing that rather than the Chancellor of the Exchequer. I beg to move.

6.45 p.m.

Baroness Crawley

I can be brief. The Chancellor of the Exchequer is the Government Minister who has ultimate responsibility for the Office for National Statistics. The Registrar General's office is part of the Office for National Statistics. The Chancellor is not a Secretary of State, as the noble Lord, Lord Higgins, will know. Because of his particular relationship as the Chancellor of the Exchequer with the Registrar General's office, that power needs to be given expressly to him by name, which is why it states Chancellor of the Exchequer at that point.

As regards the other question asked by the noble Lord, Lord Higgins, about the Chancellor being overridden by the Registrar General. That is not the position. He cannot be overridden by the Registrar General, who can vary a fee order made by the Chancellor.

Lord Higgins

If the Registrar General can vary the fee order made by the Chancellor, he can overrule the Chancellor. I do not see how that can be argued otherwise. I am astonished at the reply that I have got to this amendment. I can think of various possible explanations about why the Chancellor of the Exchequer is the relevant Minister, but the fact that he is in charge of national statistics is wholly irrelevant. I cannot imagine what national statistics have to do with the charging of fees for same-sex partnerships.

Baroness Crawley

Perhaps I may help the noble Lord. As I said, the Registrar General's office is part of the Office for National Statistics. The Chancellor of the Exchequer has overall charge of the Office for National Statistics.

Lord Higgins

That raises the issue of what are the responsibilities of the Registrar General. Certainly, it seems difficult to believe that they have anything to do with national statistics. Be that as it may. I do not want to delay the Committee unnecessarily on that particular point. I shall look into the structure to which the noble Baroness has referred. She has not replied to the points about hardship, what the fees are likely to be and whether they will be so extreme that the level would be such that they may cause hardship to anyone. Again, I must ask whether there is a similar arrangement for remitting fees for normal marriages.

Baroness Crawley

The noble Lord is right. There is a similar set-up for civil marriage in respect of fees.

Lord Higgins

If that is so, what are the fees likely to be? Is it really possible that they would be such as to cause hardship and need for them to be remitted?

Baroness Crawley

They will be similar to the fees involved in a civil marriage. It is up to the noble Lord to see whether he believes that hardship would be involved.

Lord Higgins

Perhaps the noble Baroness could tell us what the normal fees are.

Baroness Crawley

Perhaps I could write to the noble Lord. It may take some time to get that information.

Lord Higgins

I am sorry, but no. The officials must have the figures.

Baroness Crawley

They have provided it. It is £97.50.

Earl Ferrers

It did not take very long to get the answer.

Lord Higgins

We may have made an economy in government expenditure by the noble Baroness not having to write me a letter. In undertaking something so important as either a normal marriage or a civil partnership, are we really saying that the fee of £97 is a sum that would be a deterrent to the individual concerned or that he or she would suffer grievous hardship as a result? I find that extraordinary to believe. However, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 34 agreed to.

Clause 35 [Regulations and orders]:

[Amendment No. 35 not moved.]

Clause 35 agreed to.

[Amendment No. 36 not moved.]

Schedule 1 [Prohibited degrees of relationship: England and Wales]:

[Amendment No. 37 not moved.]

Baroness Wilcox moved Amendment No. 38: Page 98, leave out lines 9 and 10.

The noble Baroness said: Amendments Nos. 38 to 41 would alter Schedule 1 which fleshes out the bones of Clause 3, which deals with the issue of who is eligible for a civil partnership. Amendments Nos. 38 and 39 would remove from the list of prohibited relationships those who have shared an adoptive relationship. We have tabled this amendment to understand exactly the Government's thinking. Those would be people with no blood ties. Therefore, there is the question of whether they should be included in this category.

Amendment No. 40 would leave out paragraph 2(1)(b), which details exceptions to those who are in prohibited degrees of relationship. It states: the younger has not at any time before reaching 18 been a child of the family in relation to the other". We have tabled the amendment to find out exactly what the provision means. I must confess that Schedule I can appear at first to be rather complex and impenetrable.

Finally, Amendment No. 41 would omit the table of "relationship" and "relevant deaths" set out in Schedule 1. As we know, the Government have gone into great detail in the Bill. They have tried to cover pretty well every eventuality. However, I need more. I should like the Minister to explain exactly how that table would work in practice and to whom it would apply. I beg to move.

Lord Lester of Herne Hill

This follows on earlier debates. When the Government decided to equalise the treatment of homosexual and heterosexual couples in marriage and registration, they had to be very careful to match, as far as possible, the rights and responsibilities of married couples. They had to be careful to do that because if there are any differences between the treatment of married and homosexual couples, an argument could be raised that that was unlawful discrimination under the Human Rights Act. A gay or lesbian couple could point to that difference of treatment and there could be litigation. People like me would find themselves making far too little money, but having to spend futile days arguing such issues.

Therefore, on looking at what appears to be a highly technical schedule, the purpose of it is to put my profession out of business in that area by making it absolutely clear—I should not mix my metaphors—that what is sauce for the goose is sauce for the gander. In other words, there is identical treatment.

That leads me to my second, related point. Should the category of beneficiaries be widened beyond gay and lesbian couples to other people in need, there would he a really complicated situation of trying to equalise all of that without the comparators between a homosexual couple and a heterosexual couple. That is why I said that the moment one tries to widen the provision to people who suffer hardship, it would really kill the Bill, although that is not the intention of the mover of the amendment. It has taken two years to produce this legislation, which is relatively simple; namely, putting homosexual couples in the same position as heterosexual couples. In starting to deal with other categories, other forms of discrimination may be created that would have to be dealt with.

That is why I am not sympathetic to widening the categories. It also explains why something that looks like a dull rigmarole is necessary in order to copy across what is there in the Marriage Act and related legislation.

Baroness Scotland of Asthal

I should also say that civil registration is not identical to but it is certainly similar to marriage. There are a number of areas in which it has been clear that civil registration cannot replicate marriage and does not purport to do so. We have to eradicate unjustifiable discrimination that has no foundation in fact. We have to consider anything that cannot be justifiable.

I turn now to the question posed by the noble Baroness, Lady Wilcox. The inclusion of adoptive parents and adoptive children within the prohibited degrees of relationship for marriage was first provided for under the Children Act 1975. That was in recognition of the importance of the relationship between parents and their adopted children and the duty of care and responsibility that such parents have towards their adopted children.

Adoptive parents replace in law and in fact the natural parents of a child. They must act in loco parentis to that child, as if they were the biological parents. All the rights, duties, demands of love, affection and support that are present in law for biological parents must also be there for the adoptive parent and the adoptive child. The adoptive child should seek the similar level of nurture and care to that which we would aspire for children if properly cared for within their biological families.

Allowing marriage between a parent and an adopted child would threaten the integrity of their relationship and seriously question the nature of the bond between them. We do not see any justification for not applying the same reasoning to civil partnerships. That is not simply because of the biological defects that might occur between a biological parent and child, which would prevent them entering into what is, in relationship terms, an incestuous relationship. Children who are adopted at birth know no other parent than the parents who adopted and cared for them. They deserve the same sanctity and protection.

We do not see any justification for not applying the same reasoning for civil partnerships. As Members of the Committee will know, individuals and same-sex couples are now able to adopt children. They are, in the full sense, legally and emotionally the parents of that child. The Government have chosen to include the terms of "adoptive child" and "adoptive parent" within Schedule 1 in order to protect the integrity of the family unit. Maintaining a proper family relationship is very important.

Amendment No. 39 would leave out "former adoptive child" and "former adoptive parent" from the prohibited degrees. There are occasions where a child is readopted. That is usually a matter of great distress for all concerned. For example, a parent may be unable to cope with the pressures of caring for the adopted child and so the child has to be placed for adoption again. In circumstances like these, it would be quite wrong for the former adoptive parent to seek to register as a civil partner with their former adoptive child, as they will have shared a parent and child relationship.

Amendment No. 40 would encourage inappropriate family relationships by permitting two people who have a close relationship of affinity to form a civil partnership despite one of the proposed civil partners having been a child of the family.

Paragraph 2 of Schedule 1 provides that two people are within the prohibited degrees of relationship if one of them falls within the list, set out in the paragraph, in relation to the other. The list sets out a range of affinal relationships.

For example, two people will fall within the list if one of them is a child of the other's former civil partner or spouse. Paragraph 2 then provides an exception so that two such people will not be within the prohibited degrees of relationship where both of them have reached 21 at the time when they register as civil partners of each other, and the younger has never been treated as a child of the family in relation to the other before reaching the age of 18.

People who choose to form a civil partnership should make this choice freely. The amendment would allow civil partnerships to be formed in cases where one proposed civil partner could have had a strong influence on the choices of the other.

The purpose of Amendment No. 41 would be to leave out the qualified prohibited degrees in paragraph 3 of Schedule 1. Paragraph 3 prohibits a person from forming a civil partnership with a former civil partner or spouse of their child. Paragraph 3, likewise, prohibits a person from forming a civil partnership with the parent of their former civil partner or spouse.

These prohibitions are qualified. A person will be able to form such a civil partnership where both he and his proposed civil partner have reached the age of 21 and the relevant deaths set out in paragraph 3 have occurred.

This prohibition protects the integrity of the family unit where previous relationships have come to an end. The amendment would remove the qualified prohibited degrees and have the effect of encouraging inappropriate family relationships.

The Government have decided that it is appropriate at this time to follow the long-standing prohibited degrees of relationship that apply to marriage. The Government consider that to depart from the position in marriage law could have the undesirable effect of casting doubt upon those long-standing provisions. I refer to the nature and quality of the relationship that will persist within a family. In order to preserve family unity it would be right for us to apply those prohibited degrees to those who wish to enter civil partnerships.

7 p.m.

Baroness O'Cathain

What would happen if the adoption had not taken place when the child was an infant and the person was adopted at the age of eight or 10? The noble Baroness said that the adopted child would never have known any other parent. But what happens in the circumstances that I have mentioned?

Baroness Scotland of Asthal

The whole purpose of adoption is to give a child a sense of security and belonging to a family irrespective of when that adoption takes place. I gave the example of a child who was adopted twice or at a very early age to give the Committee an idea of the enormity of what we would do if we were allowed to say, "You can have a relationship with someone for whom you acted in loco parentis, notwithstanding the fact that to all intents and purposes you had been that child's parent". It is a matter of the quality of the relationship. Whether one is adopted at the age of 15 or two, many children who are placed for adoption crave that security and sanctity. If you adopt a child, you do not just adopt him or her until they reach the age of 18, you adopt that child for life and the child becomes a member of your family, hopefully for life. That is why we consider that it is important to try to protect the family unit. To do otherwise would be to fail to recognise how important those relationships can be.

Baroness O'Cathain

I thank the noble Baroness very much for those comments. She stressed the sanctity of family life and family relationships. However, a question arose in my mind when she specifically referred to a child not being aware of having had any other parents. I again thank the noble Baroness for her response.

Baroness Wilcox

I am awfully glad that I asked the questions as I have been able to sit here and listen to the Minister's response. I realise how complicated the matter is. I note that the Minister has about eight advisers sitting behind her.

I am very grateful to the noble Baroness for her response. I shall read what she has said very carefully in Hansard. I do not know whether we shall bring the provision back on Report, but at this stage I thank the noble Baroness for that full explanation. For now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 39 to 41 not moved.]

Schedule 1 agreed to.

Schedule 2 [Civil partnerships of persons under 18: England and Wales]:

Baroness Crawley moved Amendment No. 42: Page 103, line 32, after "proposed" insert "civil

The noble Baroness said: Government Amendments Nos. 42, 46 and 53 are minor and technical amendments. The purpose of Amendments Nos. 42 and 53 is to insert the word "civil" before the word "partner" to ensure consistency throughout the Bill.

Amendment No. 42 does not change the effect of paragraph 6 to Schedule 2, which provides for someone who has given their consent to a proposed civil partnership to subsequently withdraw that consent and to forbid the issue of a civil partnership schedule.

Amendment No. 53 also corrects the drafting of paragraph 39(3)(a) of Schedule 5 to correct the reference to "partner" in that sub-paragraph so that it becomes a reference to a "civil partner". Those are two fairly straightforward corrections.

Amendment No. 46 corrects the current reference to sub-paragraph (5) in paragraph 7(1) of Schedule 3, replacing it with a reference to sub-paragraphs (5) to (8). This is a technical amendment. It confirms that the procedures modified for certain non-residents apply not only to those using the standard procedure but also to those who wish to form a civil partnership without delay under the Schedule 3 procedure. I beg to move.

On Question, amendment agreed to.

Baroness Crawley moved Amendment No. 43:

Page 104, line 39, at end insert—


10A If one of the proposed civil partners is a child and is not a surviving civil partner, the necessary declaration under section 8 must also—

(a) state in relation to each appropriate person—

  1. (i) that that person's consent has been obtained,
  2. (ii) that the need to obtain that person's consent has been dispensed with under paragraph 10(2), or
  3. (iii) that the court has given consent under paragraph 10(2) or (5), or

(b) state that no person exists whose consent is required to a civil partnership between the child and another person.

Forbidding proposed civil partnership

10B Paragraph 6 applies in relation to the special procedure as if—

  1. (a) any reference to forbidding the issue of a civil partnership schedule were a reference to forbidding the Registrar General to give authority for the issue of his licence, and
  2. (b) sub-paragraph (6) referred to the court giving its consent under paragraph 10(2) or (5)."

The noble Baroness said: Amendment No. 43 inserts paragraphs 10A and 10B into Part 3 of Schedule 2. Paragraph 10A will provide that, under the special procedure, if one of the proposed civil partners is a child who is not a surviving civil partner, then the necessary declaration with the notice of proposed civil partnership must contain additional statements in relation to each appropriate person.

The declaration must state that the appropriate person's consent has been obtained or dispensed with or that the court has given consent.

Alternatively, the declaration must state that no person exists whose consent is required to the civil partnership. Paragraph 10A will place the same requirements on those wishing to form a civil partnership using the special procedure as will be placed on those using the other procedures. Indeed, paragraph 10A replicates the effect of paragraph 5 to the schedule, which applies to the standard procedure and the procedures for house-bound and detained persons.

Amendment No. 43 also inserts paragraph 10B which applies paragraph 6 (forbidding proposed civil partnership), with certain modifications, to the special procedure. That will allow the issue of the Registrar General's licence to be forbidden, in the same way that the civil partnership schedule can be forbidden under paragraph 6. It ensures that the same opportunity to prevent the civil partnership registration from taking place is available where the special procedure applies.

In addition, paragraphs 10A and 10B ensure that there is a similar approach to civil partnership registration as there is for marriage where one of the parties is seriously ill and not expected to recover.

Amendments Nos. 44 and 45 are consequential on the amendments set out above. I beg to move.

On Question, amendment agreed to.

Baroness Scotland of Asthal moved Amendments Nos. 44 and 45: Page 105, line 12, leave out sub-paragraph (1). Page 105. line 17, leave out "sub-paragraph (1)" and insert "paragraph 10B

On Question, amendments agreed to.

Schedule 2, as amended, agreed to.

Schedule 3 [Registration by former spouses one of whom has changed sex]:

Baroness Scotland of Asthal moved Amendment No. 46: Page 107, line 16, leave out "Sub-paragraph (5) applies" and insert "Sub-paragraphs (5) to (8) apply

On Question, amendment agreed to.

Schedule 3, as amended, agreed to.

Clause 36 [Powers to make orders and effect of orders]:

Baroness O'Cathain moved Amendment No. 46A: Page 16, line 20, leave out from "partnership" to end.

The noble Baroness said: In moving Amendment No. 46A, I wish to speak also to Amendments Nos. 49A and to the Question that Clauses 44, 45, 46 and 47 stand part of the Bill.

The aim of the amendments is to tease out whether replacing divorce with a right to end a partnership on request would be acceptable to the Government. I do not intend to speak for long as this amendment brings up many of the same issues that I raised on the first day of Committee on 10 May.

The groupings have been revised. Amendments Nos. 46A and 49A, and Clauses 44, 45, 46 and 47 stand part, are now grouped together. I believe that that was not the case previously.

Lord Higgins

I am most grateful to my noble friend for giving way. I believe that Clause 41 stand part is grouped separately.

The Deputy Chairman of Committees (Lord Geddes)

Perhaps I can help the Grand Committee. To the best of my knowledge, we are presently discussing—but I have not yet put the amendment—Amendment No. 46A in the name of the noble Baroness, Lady O'Cathain, which is grouped with Amendment No. 49A and Clauses 44, 45, 46 and 47 stand part. Clause 41 stand part comes in the next grouping but one. We are discussing Amendment No. 46A to Clause 36, which I think comes before Clause 41.

Baroness O'Cathain

That is the problem with working in this room for so long; we are all addled actually, but there it is. I shall commence my remarks for the third time.

I do not intend to speak for long since this amendment brings up many of the issues that I raised on the first day of Committee on 10 May. At that time I sought to remove some of the similarities between civil partnership and civil marriage. In response to my amendments it became clearer than ever that this was a gay marriage Bill. For example, we heard from the noble Baroness, Lady Crawley, about the importance of civil partnerships being registered in the presence of a civil registrar because: They will … be in a position to give the signing of the civil partnership document the same degree of solemnity, significance and importance that is associated with other significant life events, such as civil marriage".—[Official Report, 10/5/04; col. GC 55.] The Government are clearly very committed to imitating civil marriage in the way that civil partnership is formed. The imitation of civil marriage was debated when we discussed Amendments Nos. 31, 32 and 34. We can read that debate in Hansard tomorrow.

7.15 p.m.

These amendments probe the Government's enthusiasm for ensuring that the dissolution of a civil partnership also mimics marriage. The Government have gone to extraordinary lengths in the Bill to replicate the provisions of divorce law. Anyone entering into a civil partnership should be given, in the words of my noble friend Lady Wilcox—adopted by the noble Baroness, the Minister—a "health warning" because they are entering into a legal status from which it is difficult to exit—as difficult as getting out of a marriage.

I find it interesting that the grounds for dissolution of civil partnership do not include adultery. There are grounds of unreasonable behaviour, but a breach of sexual exclusivity between the members of a civil partnership would not directly constitute grounds for dissolution. I would be interested to hear what the Minister has to say on that point. In passing, I welcome the noble Lord, Lord Filkin, to our deliberations. We have had very good debates with him in the past and I hope that we shall have another.

Most importantly, I look forward with interest to hearing the Minister's response to my amendments which—without necessarily dealing with all the technicalities at this stage—seek to replace the elaborate divorce provisions with a simple process of dissolution on request. I question whether it is necessary for the provisions for dissolution to mimic almost directly those for divorce of a married couple.

I have made it clear that, if we are to argue about cases of hardship suffered by people whose relationships are not recognised in law, then we should address that issue fairly by widening this Bill to allow familial and platonic relationships to qualify. If amendments were accepted to this Bill which extended the scope of those who could enter into a civil partnership, as I suggested on 10 May under my Amendment No. 2, then it would be important to look at the whole issue of dissolution. A more straightforward procedure for ending the partnership would be needed.

If the Bill was amended to permit two sisters to enter a civil partnership, then it would clearly be inappropriate to require two siblings who want to end a partnership to prove "irretrievable breakdown" to the court, which the Bill does at present. On the first day of Grand Committee when I discussed extending the measure to two sisters entering a civil partnership, the noble Baroness, Lady Scotland, asked what would happen if one of the sisters wanted to become involved in a heterosexual marriage. This is a technicality that needs to be considered. The matter is very complicated. However, as I say, if the Bill was amended to permit two sisters to enter a civil partnership, it would clearly be inappropriate to require two siblings who want to end a partnership to prove "irretrievable breakdown" to the court, which the Bill does at present.

My Amendments Nos. 46A and 49A would remove that requirement and provide for dissolution by the court on request. This is subject to making application in the appropriate form and notifying the other partner. The "stand part" amendments relating to Clauses 44 to 47 are consequential. I look forward to hearing the Minister's reply with interest. I beg to move.

Lord Lester of Herne Hill

We will oppose these amendments. It seems to us that, provided that the Bill is kept to its proper purposes and one is seeking to match the position of civil marriage, mutatis mutandis, the provisions on dissolution do precisely that. Only if one were to widen the Bill to include wider categories of beneficiaries and change the whole scheme of the Bill, might one need to look at it in a different way. So far as dissolution and divorce are concerned, one has views about how law reform might be achieved in the area of family law. But it is not the purpose of this Bill to achieve those wider reforms.

Lord Filkin

I thank the noble Baroness, Lady O'Cathain, for her generous welcome, particularly given the challenging times we had together on the Gender Recognition Bill. That was gracious of her, and I am glad to join the Committee in its processes at this point. I shall try to rise to the challenge, to which the noble Baroness encouraged me, of speaking succinctly. However, it will help if I put a little on to the record now as it may permit economy at later stages.

The noble Baroness is absolutely right in what she says. In many ways, the amendment to which she has spoken replicates some of the argumentation that she made earlier. She will therefore not be surprised if my responses also replicate some of the Government's responses in that respect.

In short, the argumentation is based on reasons that the Committee knows. However, we think it important that a totally new legal status is being given to same-sex relationships as a central thrust of the Bill. We think it important that those relationships have meaning and importance; that they entail significant rights and responsibilities; and that one hopes and expects that people will enter into them with thought and care and will wish to stay in them as that lends to the stability of both family relationships and society.

In terms of the principles underpinning the Government's view of the Bill, it therefore follows that we should try to ensure that, when one party thinks it necessary, the process of ending the relationship also has a degree of test, circumspection and thoughtfulness and there is a principled test of whether the relationship should end. In that sense, we do not think that there should be a process such as the noble Baroness suggests—which is essentially that one party virtually unilaterally can say, "The contract has ended", irrespective of the circumstances, wishes or opportunity of the other party to engage in challenge or delay or to put their point. That seems to us to frustrate one of the Government's central objectives for the Bill.

The noble Lord, Lord Lester, just recently spoke to a second issue which was touched on earlier. In terms of equality and ensuring we are well positioned on challenge in the law, we think that there is difference from marriage only with good reason. That is not only in terms of a defensive legal position but also as a point of principle. Therefore, as the noble Baroness has spotted, we would look to the provisions in marriage law to see whether those principles, practices and procedures seem to make sense in terms of ending the relationship. That is why she recognised provision in the Bill regarding separation after two years with consent; after five years without consent; and the test of irretrievable breakdown, evidence-based. I am not going into all the detail, but she is right to remark on those similarities. We believe that those are there for good reason rather than just by happenstance. I know that she will not like it or welcome it, but she is right to recognise the similarity in that respect.

The noble Baroness spotted one difference—why not adultery? In a sense adultery is a concept—without going into the physiology of it—that applies to opposite-sex marriage. Clearly that does not apply in this respect. However, that does not mean that a party to a civil partnership who behaves in an adulterous way would not afford the opportunity for their partner—if they felt. as they may well do, aggrieved by that —to take action in the courts to end the relationship. They would be able to advance the fact that there had been an "extra-sexual relationship", if I can put it that way, that they felt went to the heart of the trust in the relationship and that therefore they would advance that as an argumentation for irretrievable breakdown of the marriage.

Lord Higgins

I, too, welcome the noble Lord to our deliberations. I am not quite clear what the definition of adultery is in the case of two-sex couples.

Lord Filkin

I was reflecting on that as I was speaking.

Baroness O'Cathain

It is being unfaithful.

Lord Filkin

I hope that the noble Baroness, Lady O'Cathain, is correct that it is being unfaithful rather than something slightly more physiological. I do not want to send a frisson through the Committee at this late hour. We are reflecting on what adultery means. In the Marriage Act, it is quite clear—it is a relationship between one of the parties to a marriage and another person of the opposite sex outside the marriage, and a sexual relationship.

Noble Lords

We have a bishop present.

Lord Filkin

I shall not avoid—well, I will give way to the right reverend Prelate.

The Lord Bishop of Peterborough

I shall not trespass on your time.

Lord Higgins

All the way through our proceedings, without exception, for hour after hour, we have been told that these procedures replicate those of marriage. Suddenly, there is one exception, and I confess that, in the absence of any clearer answer from the Minister, I am not sure why.

Lord Filkin

I am sorry—the noble Lord asked for the definition and he is going to get it. It is penetration of the female by the male.

Lord Lester of Herne Hill

I am not an expert on anything at all, but I thought that in the Bible there was a prohibition on adultery that was predicated upon it involving a man and a woman. "Thou shalt not commit adultery" was predicated on that.

Those who are really interested in this area should read Horace Rumpole's description, which seemed to apply when I came to the Bar, when we made nine guineas by trying to dissolve marriages. We would turn up in front of the judge, seeking to dissolve a marriage on grounds of adultery, and ask him if he would read the discretion statement. A little envelope would then be opened in which the various acts of adultery would be taken into account by the judge, and we would see which of us could get a decree nisi in under 30 seconds.

Anything which gets us away from having adultery as the ground for dissolving a marriage, despite the Bible, would be highly desirable, whether a homosexual or a heterosexual couple were involved. It seems rather bizarre to suggest that the Biblical injunction against adultery should be applied to homosexual couples when many Christians believe that homosexuality is actually forbidden by the Bible.

Lord Filkin

I hope, without labouring the point, that I have answered the perfectly proper question of the noble Lord, Lord Higgins, about why there is a difference.

I will try to be succinct, because it would be helpful. Let me put on the record one or two other reasons why there is a difference, as we are not going to accept the amendment of the noble Baroness, Lady O'Cathain. Under her proposal, the process of the court would be completely formal. It would effectively give no opportunity for the respondent to defend or try to challenge the ending of the relationship. There would be none of the safeguards, and we believe that it would be inconsistent with the serious nature of the partnership commitment. There would be no power for the court to inquire into the facts, no power to do anything other than issue the dissolution order. It would not allow for representation by the other party, potentially denying them the right of a fair hearing.

The proposal would not, in relation to Clause 44, provide for arrangements for dealing with attempts at reconciliation by the partners. We think that that would be a serious deficiency. Consistent with the view that these are serious, committed relationships, it is right that one does not allow a process that lets people rush to end them without an attempt to see whether it is possible—with thought, a little pause, perhaps some advice and counseling—for them to decide that they will continue with the partnership that they wanted to enter into.

Clause 45 provides that where a separation order and an order for financial provision or an order in relation to a home has been made, it will be possible for either civil partner to use facts to support an application for dissolution. The court may treat the order already given as proof of the fact alleged, but the court must receive evidence from the applicant. The court is also given power to treat periods when an injunction or an order prohibits a civil partner from occupying a dwelling house as periods of desertion to support an application for a dissolution order.

For similar reasons of principle on which I touched earlier, Clause 46 provides protection for the respondent civil partner in cases of grave hardship in cases based on five years' separation.

Clause 47 provides protection for the respondent in separation clause cases. It allows the respondent to an application for a dissolution order alleging either two years' or five years' separation to apply to the court to consider his or her financial provisions after dissolution of the civil partnership. The court will take all the circumstances into account and will make the conditional dissolution order final only if it appears that no financial provision should be made for the respondent or that reasonable financial provision has already been made. They reflect the need to protect people in complicated and difficult legal situations.

The noble Baroness, Lady O'Cathain, as often, was completely right that that is why we differ on this issue. For reasons of principle, equity and practice in law, we felt that it was good to follow the principles of marriage law except where there was good reason not to do so.

Baroness O'Cathain

I thank the Minister very much for his response to my amendment. However, I would like to make a couple of points. First, he said that it would not be right for one partner to say, "The contract has been annulled; I'm off'. But he then referred to the fact that, in marriage, one can say that after five years and it does not really matter too much. So that is mirroring marriage yet again. When the Minister started, in his gracious way, he said that I would not be surprised if he replicated the Minister's response to my previous amendments. He will not be surprised if I now replicate my response to the Minister's earlier response. In other words: I will return to the issue at Report and Third Reading; no question about it.

I listened with great interest to the Minister's reply. Following the intervention from my noble friend Lord Higgins, it is obvious that the procedure for dissolution is very closely modelled on the current divorce law. That has been accepted. Surely it would have been much more honest for the Government to admit that they seek to create a form of civil marriage for homosexual couples. We hear a lot about transparent government. Why cannot the Government be transparent in the use of language in the Bill? I suspect that it is because there would likely he a very strong public reaction.

The Government stated the other day that the Bill has 83 per cent support right across the board in England and Wales; that is in Hansard at col. GC 48. The Government are skating on thin ice. The Minister was talking about responses to a government consultation—a consultation to which gay rights groups were lobbying their supporters to respond for months; consultation of which very few members of the public would have been aware. There is no way we can say that those who responded were representative of the views of people in England and Wales. If there was such a representative sample and they were told what the Bill really did—that is, mirror marriage in every way—I would expect a majority in England and Wales to oppose it.

Lord Lester of Herne Hill

I am very grateful to the noble Baroness. I wonder whether she might not reflect on this before we come back to it at Report. I personally would very much like to see gay marriage, for all kinds of reasons. On the other hand, at this stage, are the Government and Parliament not entitled to say, "At this stage in our lives, we will respect the strong feelings of the population about the use of the word marriage. Therefore, the right thing to do now is to provide the proper rights and obligations that mirror marriage without using that label, to which there attaches all kinds of religious and symbolic importance, in order to be able to provide the protection"?

Will the noble Baroness reflect also on what has happened in the United States, where one of my good friends, the chief justice of the Commonwealth of Massachusetts, has insisted that the word "marriage" must be included—that there must be full marriage— leaving President Bush to decide to run that as a major campaign and seek a federal constitutional amendment.

Is it not therefore wiser to combine principle and pragmatism in this area by providing the necessary protection, leaving it to the Churches, for example, to decide whether they wish, as I hope they will, to provide the symbolic and religious underpinning of the relationships? I ask only whether the noble Baroness will reflect on that. I am criticised by many for adopting some such view, as if I have somehow sold out. I take that criticism, but I think that one needs to think about that pragmatic argument.

Baroness O'Cathain

I cannot tell the noble Lord, Lord Lester of Herne Hill, how grateful I am for that intervention—because that is precisely what we are doing. We are creating a gay marriage in all but name. We will then wait for another few years until the populace—the people—accept that that is okay. That is fine, and I really do believe that he is quite right that that is what is happening in the Bill. We do not always agree on everything, but I agree with him absolutely on this. I do not need to reflect on it at all. He is absolutely right.

When I probed the Government's view on Northern Ireland, the Minister made it clear that, where a clear majority of individuals opposed the plan, they are not interested in democracy. That is such a travesty.

I will go away and read the Hansard report of this debate. In the meantime, I have no option but to beg leave to withdraw the amendment.

Lord Filkin

I do not want to spoil the slightly novel unanimity breaking out on the Opposition Benches. However, I want to put our position very clearly. This is a new legal status that gives rights and responsibilities to people in same-sex committed relationships. We think that that is fundamentally right as part of what a civilised society should do. We do not see it as analogous to marriage. We do not see it as a drift towards gay marriage. We see it as having value, merit, meaning and purpose in its own right.

Baroness O'Cathain

I thank the noble Lord and I absolutely believe him. I have always regarded him as a very honest person, and he does believe that. However, I believe the opposite. I am also an honest person. I just think that this has exposed the whole thing. I beg leave to withdraw the amendment but I will come back to it at Report and Third Reading.

Amendment, by leave, withdrawn.

[Amendments Nos. 47 and 48 not moved.]

Clause 36 agreed to.

Clauses 37 to 40 agreed to.

Baroness Crawley

This may be a convenient moment to adjourn the proceedings until Thursday, 13 May, at 3.15 p.m.

The Deputy Chairman of Committees

The Committee stands adjourned until tomorrow, 13 May, at 3.15 p.m.

The Committee adjourned at twenty-two minutes before eight o'clock.