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Hugh Bayley:
My hon. Friend raises an extremely important point. In such circumstances, the dependent partner in the marriage, who could, of course, be a woman or a man, would have the ability to go back to the divorce court to ask for the divorce settlement to be varied so that their property would no longer be shared—because they were no longer living together—and so that some alternative arrangement could be put in place. The most likely arrangement would be a division of the assets, which could well include pension splitting. Alternatively, it could result in what is known in the trade as offsetting, whereby the wife might get the family home, for example, and the husband—or former husband, in this case—might get the pension. The court would deal with their assets anew, recognising that their circumstances had changed and that the divorce had
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become a separation as well as a technical arrangement to allow one party to get the gender recognition certificate that they sought.
Glenda Jackson: I am grateful for that explanation, but would the court be bound to take into consideration the income of the new partner when dividing up the old partnership's assets?
Hugh Bayley: I am not a divorce specialist—still less a divorce lawyer—and I am afraid that I cannot answer my hon. Friend's question. My understanding, from a legislator's point of view, is that the court would be able to come to whatever decision it saw fit. One would imagine that a wife—if I can use the shorthand—who, having agreed to live together with her former husband in a dependent relationship, found that that was no longer possible, would make representations to the court, or ask her lawyer to do so, with a view to getting a half share of the financial assets of the marriage. I would expect the court to agree to that in most circumstances. There could be circumstances when such an arrangement might be varied because one partner or the other had responsibility for dependants, for example, but I imagine that the court would treat the rights of the wife in the same way as they would in any other divorce hearing, in otherwise similar circumstances.
Lynne Jones: In subsection (4)(d) of my hon. Friend's new clause, the criterion is that
"the couple maintain existing financial support for one another."
As I read that, it would apply to either spouse, or former spouse. If each had their own pension and one died before the other, the surviving partner would be entitled to the appropriate share of the pension. I am a bit concerned, however, that my hon. Friend has been referring to "dependants", which might describe people who did not have a pension in their own right. Will he clarify that that is not what he means by "dependants"?
Hugh Bayley: Yes, I can give that clarification. The lack of clarity might have arisen because I have been talking about both the general situation for couples who divorce in order for one of the partners to get a full gender recognition certificate, as well as the individual circumstances of my constituents. The advice from PricewaterhouseCoopers related to my constituents' individual circumstances, but the draft guidance note that officials at the Department for Work and Pensions have produced—together with the National Association of Pension Funds and the Association of British Insurers—covers the general situation in a way that I hope my hon. Friend would approve of. I know that she has followed this area of public policy for much longer and much more closely than I have, so I hope that she will have the opportunity to look at the draft, and if she feels that it does not do what ought to be done in advising the Department and the industry, I am sure that she will give us her comments.
Hugh Bayley: I am trying to finish my speech, but I shall give way to the hon. Member for Portsmouth, South (Mr. Hancock).
Mr. Mike Hancock (Portsmouth, South) (LD):
Like the hon. Gentleman, I have constituents in the scenario
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that he first described, where one partner is solely dependent on the pension that has been accumulated by the other partner. Where both partners have pension rights solely to themselves, they stay together and one or other of them dies, and one of them has gone through the gender change and the certification process, does the guidance that the hon. Gentleman has worked through with the Minister's office state that those pension rights stay with that person when the partner dies, even though they have pension rights of their own?
Hugh Bayley: It is impossible to give individual advice to hon. Members in the Chamber; each pension scheme is different. In the case of the hon. Gentleman's constituents, one would have to establish whether the pension scheme provided a spouse's right to a pension following the scheme member's death, and one would then have to clarify with the pension provider whether it would continue the spouse's right following the dissolution of the marriage. That can be done only on a case-by-case, scheme-by-scheme basis.
The guidance note seeks to tell people such as the hon. Gentleman's constituents the issues on which they should seek clarification and how they should go about it. The guidance note also gives a strong steer to the industry that it should not use circumstances such as these as an excuse for denying people security in old age as a result of pension rights that they had established, simply and solely because the partner who was the source of that security in old age changes their gender or seeks legal recognition of a changed gender.
Hugh Bayley: I must make progress. I am sure that hon. Members who wish to intervene will be able to make their own speeches. I thank my hon. Friend the Minister for her helpful response to my proposal that a guidance note be prepared. I shall listen carefully to her statement about the role that that guidance note will play.
3.30 pm
Mr. Frank Field (Birkenhead) (Lab): My hon. Friend the Member for City of York (Hugh Bayley) has been so comprehensive and so excellent in his delivery that I can be mercifully brief.
On Second Reading, I intervened on the very point that we are discussing. Although the Bill seeks to meet an injustice that a number of our constituents feel, I was anxious that we should not create another injustice for another group of people in place of the original injustice. I spoke in theory; my hon. Friend spoke from practice. That shows the value of single-Member seats, where the buck stops with each of us for our individual constituencies, and as a result we cannot pass on our responsibilities or pretend that someone else is attending to them.
My hon. Friend the Member for City of York said he hoped that our hon. Friend the Minister would read into the record the spirit in which he hoped the guidance would operate, and say whether and at what point the guidance would be made public to hon. Members and,
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perhaps equally important, to our constituents. I ask my hon. Friend the Minister for one clarification. My hon. Friend the Member for City of York rightly said that we are dealing, fortunately, with a small number of people who feel the grievance, but if one person feels the grievance, it is 100 per cent. It is not mitigated by the fact that there may be only 39 or 49 other people in a similar position. That is why it is important for my hon. Friend the Minister to deal with the issue.
Suppose that the private providers do not all come up to the standard that my hon. Friend the Member for City of York hopes and believes they will, given their track record so far. We only need a couple of providers to fail to live up to that expectation for some of our constituents to feel that, while meeting what is a legitimate grievance for some of our constituents, we have created an equally horrible grievance for them.
Mr. Boswell: Those who participated in or subsequently read the reports of the Standing Committee will know that it was characterised by large measures of cross-party agreement on a number of important issues. This is one of them. I pay tribute to the hon. Member for City of York (Hugh Bayley) for bringing to the matter his personal expertise from his constituency case. As has been said, a small number of people are affected, but that is no reason to perpetuate an injustice if it can be dealt with.
I look forward to the Minister's response, as she, too, has been sensitive in this area. The only question at issue is what the best response is and whether it will leave some people feeling that they have not received the justice to which they feel entitled. I take the point made by the right hon. Member for Birkenhead (Mr. Field). If we deal with most of the problem but leave one or two people dissatisfied, that aggravates things for them.
From the exchange between the hon. Member for City of York and my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg), I think there is a convincing case for dealing with the matter by guidance note. That will cover most cases, including, I hope, those where the provider is a member of the National Association of Pension Funds.
My only reservation—I do not want to go on at great length, as I know this is a difficult and complex subject—relates to the question of public sector schemes. It is absolutely true, as the hon. Gentleman has said, that a large number of those are and should be members of the NAPF in relation to their private sector or second pension provision, which is fine. Typically, of course, entitlements can be transferred between public and private sector easily in that regard. When considering statutory pension schemes, the difficulty is that they are often prescribed in statute, and are very complex. I hope that the Minister can at least reflect, and perhaps comment this afternoon or subsequently, on cases in which trustees of public sector schemes may find that their discretion is fettered in ways in which some of the private schemes would not be, and are unable to produce the deal that would otherwise be available to persons in the private sector. That is not an easy matter—I believe that there are about 600 public sector schemes—but I hope that it will be considered.
The broad outline is uncontentious. The hon. Gentleman has worked hard with the Minister, and I have been anxious not to clutter things and get in the
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way, but he has had the courtesy to keep us in touch. He needs to share that, and it would be sensible for the Minister to put the guidance note in the Library for all to see. We are on the verge of resolving this issue, without a Division and in conformity with the decent spirit that the Committee showed previously.
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