TRANSITIONAL PROVISION (Hansard, 17 May 2004)

§ Lord Henley
I understand that this is to be the last Question that we shall deal with today before we move to social security matters next week. As it is the last Question, I apologise to the Committee for speaking at this late hour and assure the noble Baroness that I will be brief.
The clause concerns the public policy exception and provides that: Two people are not to be treated as having formed a civil partnership as a result of having entered into an overseas relationship if it would be manifestly contrary to public policy to recognise the capacity, under the relevant law, of one or both of them to enter into the relationship". I am simply curious what situations the clause would cover and what the Government envisage would happen if such an event took place.

§ Lord Lester of Herne Hill
My understanding is that this is equivalent to the public policy exception for a marriage, especially foreign marriage, and does not add more than that. It is obviously necessary in very exceptional cases for there to be such an exception.

§ Baroness Crawley
Perhaps I may assist the noble Lord, Lord Henley, by setting out where we see the clause appertaining. The clause provides that an overseas relationship cannot be treated as a civil partnership if it is manifestly contrary to public policy to recognise the capacity of either or both parties to enter into the relationship. The exception applies only to the capacity of the parties to enter into the relationship—known in legal terms as essential validity. It does not affect the procedures for registering the overseas relationship—known in legal terms as formal validity—which will be governed solely by the law of the overseas country or territory.
Wherever possible, we have aimed to ensure that the Bill provides certainty about which overseas relationships are treated as civil partnerships in the UK. For example, there are provisions in this chapter which ensure that no overseas relationship can be treated as a civil partnership if the parties are not of the same sex, or if either of them is already a civil partner or lawfully married.
However, there are also other areas where we cannot guarantee that other countries' rules will always exactly match those applying in the UK. For example, other countries may have slightly different approaches to prohibited degrees than is the case in the UK, or may have different rules as to mental capacity. These are aspects of detail where different jurisdictions may legitimately have different views. Where neither of the parties was domiciled in the UK, a degree of flexibility is appropriate when considering whether compliance with UK rules is required before the overseas relationship can be treated as a civil partnership here.
The appropriate means of ensuring such flexibility is a public policy exception, similar to that which the courts have developed for equivalent issues in relation 333GC to overseas marriages. Such an exception enables the courts to decide that it is contrary to public policy to give effect to a capacity which exists under the relevant foreign law.
The definition of when it would be manifestly contrary to public policy to recognise a capacity that exists under the relevant law is clearly something that the courts are best placed to determine. In doing so, they would no doubt apply a similar approach to that which has been taken to similar issues in marriage cases. We are satisfied that the clause gives the courts sufficient power to ensure that, for example, we do not find ourselves treating as civil partnerships overseas relationships between close relatives or people significantly under the age of 16.

§ Lord Henley
I am grateful to the noble Lord, Lord Lester of Herne Hill, for answering, and also for the support that he got from the Minister. I think I understood what the noble Baroness had to say. I shall end with just one question. Should I take it that that 334GC would mean that if we were dealing with polygamous unions in another country, they would be felt to be manifestly contrary to public policy?

§ Baroness Crawley
My advice is that it would be for the court to decide, but that would be most likely.

§ Baroness Crawley
Perhaps this would be an appropriate moment for the Committee to adjourn until Tuesday 25 May at 3.30 p.m.

§ The Deputy Chairman of Committees (The Countess of Mar)
The Committee stands adjourned until Tuesday 25 May at 3.30 p.m.