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Session 2005 - 06
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Standing Committee Debates

Draft Civil Partnership Act 2004 (International Immunities and
Privileges, Companies and Adoption) Order 2005




 
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Fifth Standing Committee
on Delegated Legislation

The Committee consisted of the following Members:

Chairman:

Hywel Williams

†Alexander, Mr. Douglas (Minister for Europe)
†Blizzard, Mr. Bob (Waveney) (Lab)
†Boswell, Mr. Tim (Daventry) (Con)
Bottomley, Peter (Worthing, West) (Con)
†Browne, Mr. Jeremy (Taunton) (LD)
†Challen, Colin (Morley and Rothwell) (Lab)
Clegg, Mr. Nick (Sheffield, Hallam) (LD)
†Davies, Philip (Shipley) (Con)
Dunne, Mr. Philip (Ludlow) (Con)
†Grogan, Mr. John (Selby) (Lab)
†Heyes, David (Ashton-under-Lyne) (Lab)
†Raynsford, Mr. Nick (Greenwich and Woolwich) (Lab)
Selous, Andrew (South-West Bedfordshire) (Con)
†Stringer, Graham (Manchester, Blackley) (Lab)
†Vis, Dr. Rudi (Finchley and Golders Green) (Lab)
†Watson, Mr. Tom (Lord Commissioner of
Her Majesty’s Treasury)

†Whitehead, Dr. Alan (Southampton, Test) (Lab)
Geoffrey Farrar, Committee Clerk
† attended the Committee


 
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Tuesday 13 December 2005

[Hywel Williams in the Chair]

Draft Civil Partnership Act 2004 (International Immunities and
Privileges, Companies and Adoption) Order 2005

4.30 pm

The Minister for Europe (Mr. Douglas Alexander): I beg to move,

    That the Committee has considered the draft Civil Partnership Act 2004 (International Immunities and Privileges, Companies and Adoption) Order 2005.

The order was laid before the House on 30 November 2005, together with the explanatory memorandum now required for all affirmative statutory instruments.

It is a pleasure for me to address the Committee on a subject other than future financing; as you can imagine, Mr. Williams, that is a subject that weighs heavily as I look ahead to the immediate future.

The draft order amends the International Organisations Act 1968, the Companies Act 1985 and the Adoption and Children Act 2002. The 1968 Act allows the United Kingdom to confer privileges and immunities on international organisations and individuals connected with international organisations. Orders made under sections 1(6)(a) and 2(5) of that Act can confer only the privileges and immunities expressly provided for in the international agreement that is being implemented. Therefore, unless an international agreement provides for privileges and immunities to be conferred on the civil partner of the primary beneficiary of the privileges and immunities, the company does not have the vires to do so.

The draft order will amend sections 1 and 2 of the 1968 Act to enable the United Kingdom to confer privileges and immunities on civil partners. Under the 1968 Act, as amended, we intend to introduce an affirmative order to amend the nine orders that contain references to “spouse”. Those orders confer privileges and immunities on international organisations that are all based outside the United Kingdom.

Section 153(4)(bb) of the Companies Act 1985 provides that share ownership incentive schemes for spouses of employees and former employees of a company are not prohibited as a form of financial assistance for the purchase of shares under section 151 of the Act. Section 743 of the 1985 Act defines “employees’ share scheme” for the purposes of the Act as including share schemes for the benefit of the spouses of employees and former employees of a company. The draft order will amend section
 
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153(4)(bb) and section 743 so that the share incentive schemes apply equally to civil partners and spouses of employees and former employees of a company.

Section 79(7) of the Adoption and Children Act 2002, which extends to England and Wales only, was amended by section 79(8) of the Civil Partnership Act 2004 to provide for civil partnership to be included alongside the references to marriage. The draft order will further amend section 79(7) of the 2002 Act to enable the Registrar General to advise an adopted person under 18 years of age who wishes to form a civil partnership whether he and his proposed civil partner are within the prohibited degrees of relationship as set out in schedule 1 of the 2004 Act.

The 2004 Act provides a new legal framework that will enable recognition of same-sex relationships through the new status of civil partner and the new legal relationship of civil partnership. Civil partners will now have legally binding rights and responsibilities in relation to each other and will have acquired a new status, which will affect their treatment by third parties, including the state. The 2004 Act aims to ensure parity of treatment between married couples and civil partners except where there is an objective justification for a difference in treatment.

The amendments made in the order will allow the United Kingdom to ensure that parity of treatment is accorded to civil partners. I am satisfied that the order is compatible with the European convention on human rights. I hope that it will receive the full support of all members of the Committee.

4.34 pm

Mr. Tim Boswell (Daventry) (Con): Let me first welcome you to the Chair, Mr. Williams. I do not think I have previously served under your chairmanship on a Standing Committee on Delegated Legislation. It would be improper—and I think unlikely to increase good will—if I reminded you that my wife is Welsh, and it would certainly dissipate good will entirely were I to attempt to speak the language.

It is also a genuine pleasure to stand opposite the Minister. This is an occasional and one might almost call it a country Members’ pleasure, because I have not, even with the rapid pace of change in our dispositions on these Benches, joined the Foreign and Commonwealth Office team. But I do know a bit about civil partnerships and, through having served on the Standing Committee on the Gender Recognition Act 2004, a good deal about gender recognition issues too. These areas are probably more appropriate for my interests than for my colleagues in our Foreign Office team. That is no disrespect to the Minister, who explained clearly and in elegant terms exactly what the order was about. I saw no dissonance between what he said and what was said in the explanatory memorandum. That is the sign of an excellent Minister.

Mr. Alexander: So far, so good.

Mr. Boswell: Indeed, it will be good. I am not signalling some great difficulty. The Opposition welcome the Civil Partnership Act. There is no
 
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equivocation about that. We entirely endorse the objective that the Government have set out in the explanatory memorandum to ensure parity between married couples and civil partners, except where there is any objective justification for a difference in treatment. That is not an issue between us and neither are the orders at this point.

I recognise the Minister’s difficulty, indeed the Government’s difficulty here, not least because although I am not a lawyer, as will shortly become apparent, I have a daughter in the Government legal service. The task of interpreting and transposing laws that are related to centuries of legislation about spouse relationships to civil partnerships is huge. Something always gets left out or is not quite there and then has to be amended. It must almost be a first time in history and it is very commendable that, in this troika of little difficulties, the FCO has taken the lead in bringing the order forward. I have no difficulty with it, just some questions.

As we are moving towards the festive season, it occurred to me that it would make a wonderful “Mastermind” question to ask what single order in Parliament brought together the interests of the FCO, the Department of Trade and Industry and the Office for National Statistics. It was not immediately obvious to any of us until we got into this Room. All will be revealed shortly. I hope, and this is not an attempt to derail the Minister, that he will not feel it perverse if I confine my remarks to the order and present them in reverse order. They are of degressive levels of importance, at least in the questions they prompt, so I will start with the FCO, through the DTI, and end with the Registrar General.

On the adoption matter, it seems to have been simply a drafting error. We need not get sniffy, because as I understand it from the explanatory memorandum, although it was considered in the Civil Partnership Act, under the present law the registrar is able to advise on what used to be known in the words of the prayer book as kindred and affinity only for the purposes of the Marriage Act 1949, not for the purposes of the Civil Partnership Act. That clearly is slightly odd in cases where the intention is to include a civil partnership rather than a marriage. I suppose that if a marriage had taken place, it is quite important that the Registrar General should be able to draw it to the attention of the parties, but it is clearly sensible to be comprehensive and on all fours on the matter.

There is one small point to which my suspicious mind leapt in the distinction between paragraph 2.8 and paragraph 2.9. The explanatory memorandum states that section 79(8) of the 2004 Act

    “permits the Registrar General to inform the applicant whether or not it appears from the information contained in the registers of live-births or other records that he and the intended spouse or civil partner may be within the prohibited degrees of relationship”.

That line from the information contained in the registers of live births and other records is omitted from paragraph 2.9. It appears from that that the Registrar General might draw on slightly wider sources of information, and I should be grateful if the Minister could respond to that point. That is fine, and it occurs to me that he might want, not least with his
 
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Scottish background, to say a little about how registrars general in the different parts of the United Kingdom can draw on information from other areas and from foreign jurisdictions. I shall come back to that when we discuss the Foreign and Commonwealth Office aspect of the order. The more information that he has, the more helpful he can be to persons considering such partnerships.

On companies, it is entirely sensible to provide for parity. However, the Minister and his colleagues, including those in the Treasury, need to reflect on the fact that there might well be, as was said extensively when we debated the Civil Partnership Bill, close relationships that are precluded from civil partnership—for example, a mother and daughter or other same-sex relationship without any sexual connotation—that are very close and of longer standing than a civil partnership. It has been felt that there might be some injustice to such parties, who are not able to avail themselves of the tax and other advantages available to civil partners. It was agreed at the time that it was not appropriate to deal with the matter under the Civil Partnership Bill, which dealt with a specific type of relationship, but the issue still remains.

It would also be helpful if the Minister could respond to the question asked by one of my colleagues about whether the provisions of the Companies Act apply to UK residents or to UK nationals abroad, or to anybody else who is resident in the UK but who might not be a British national. I am not clear how the fit operates in such cases, although the principle of parity is clearly sensible.

The international organisations provisions, which form the main part of the order, are important. It is sensible that we should introduce them, and that we should give a lead in doing so. However, they take us into delicate territory. I well remember debating such matters—in a constructive way, I think—with the hon. Member for Tottenham (Mr. Lammy), when he represented the Department for Constitutional Affairs and I was shadowing him for the purposes of the Gender Recognition Act 2004. I appeared as the non-lawyer, while he had written his law thesis on the operation of The Hague convention—he knew a great deal more than I did about the matter.

In this case, I must remind the Minister that there are some important interactions with private international law—if he thinks that this is easy compared with European financing, we can soon disabuse him of the idea—concerning the operation of rights that individuals might have in relation to benefits or other privileges as European Union nationals in the UK and how they read across, and how recognition of partnerships might be considered by both parties. I shall come back to that in a moment. It is a complicated matter, and a useful by-product of the exchanges that we had at the time was clarification of the fact that the Government—under the chairmanship, as I recall, of Sir Peter North—have beefed up their advice on private international law. That is important because, as people move around and the world becomes a more global place, it will become
 
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a more important part of our scene, so we need to get it right. As I suggested earlier, it is an area in which the United Kingdom should be seen to be leading from the front, rather than coming in at the end.

It would be helpful if the Minister could clarify the situation, his colleague having given a certificate of compliance with the European convention on human rights. I am not sure, as I have not found a case, whether we have been put under pressure by the European Court to provide powers for civil partners that are exactly comparable to those available to married persons, and he may wish to speak about that matter.

As I said, there are recognition issues. It appears from the explanatory memorandum and how the order is worded that the Government can introduce the proposal by Order in Council. The problem at present is that unless and until this order is passed, the Government cannot help, even if they wished to do so. I do not mind that, because the Order in Council procedure would provide a filter or control by which the Government could take a view about whether countries were in the same framework or context as this country or playing by the rules.

The Minister then in the Department for Constitutional Affairs and I made inquiries on the implementing orders for that legislation. Some European Union states have not implemented gender recognition, which was a fallout from a judgment by the European Court of Human Rights and it is possible that there is an understanding that European Union or European economic area states will fall within it.

On the recognition of credentials—what is, or is not, a civil partnership— Ministers will have to consider what happens if someone produces documentation that may be questioned, or which is not familiar to the registrar. They will also have to consider whether they want a blanket power or to introduce an order on the first occasion that a case arises.

It would be helpful if the Minister could say something about parallel compliance or introduction in other European Union member states and in countries such as the United States. Will there be reciprocity for United Kingdom nationals abroad, who might expect a similar recognition, or who would certainly be disappointed if they were not to receive it? It may have been settled under the original Act, but I should like the Minister to clarify whether the recognition expires when the person or persons involved—we are talking about a relationship, although both partners will not be required to be active in the international organisation—leave the United Kingdom?

Mr. Alexander indicated assent.

Mr. Boswell: The Minister is nodding. One partner could be married or have a civil partnership with someone who is a member of a delegation. Does the recognition expire on their leaving the United Kingdom, or if the marriage or civil partnership is
 
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dissolved? Does it cease if the person remains within the jurisdiction but ceases to be a member of the delegation? It would be useful if the Minister could clarify those points.

Accredited diplomats are a separate issue. I stand to be corrected, but I believe that they are treated as domestic nationals under domestic jurisdiction and are not covered by the proposal. However, presumably if they are in a civil partnership relationship that is understood in their own state, they would have any privileges that were available there.

That is not an idle remark; I am aware of someone who works in this place who is in a relationship with a same-sex partner—I am not sure whether they wish to conclude a civil partnership—who is shortly to be posted to a United Kingdom post abroad. I welcome that, except for the fact that we will lose the benefit of that person’s services. Such real issues need to be carefully considered; it is important to treat them fairly and, as far as possible, with reciprocity. I do not expect the Minister to have final answers to all my questions, although his officials may be able to help.

I want to make one final point. It is important that we do not over-emphasise or over-dramatise it, but the Minister will be well aware of disturbing incidents in the conduct of diplomats in London—I am talking here not just about parking fines or arguments about the congestion charge—including one notorious incident in the memorable past.

If we are talking about immunity from criminal prosecution, in cases where a member of an international organisation or their spouse or civil partner is suspected of having committed a major crime or misdemeanour—all the way up to terrorist activity—it is clearly important that machinery should exist to override the provisions, not removing civil rights or right to process but at least making it difficult for what is extended as a diplomatic or quasi-diplomatic privilege to continue. That is equally true of civil partners or spouses.

Those are the points that came to me off the page in this complex area. I do not think that we shall fall out over this, because I think the Government’s basic objective is right. However, in order to ensure that we can support that objective—and this is the purpose of the draft order—we need to be sure that the points have been both fully considered and adequately responded to, as I am sure they will be in due course.

4.51 pm

Colin Challen (Morley and Rothwell) (Lab): I just want to ask the Minister to respond to one question in his reply to this so far lengthy debate. I do not quite understand the difference between two paragraphs in the explanatory memorandum. Paragraph 2.8 refers to

    “the prohibited degrees of relationship for the purposes of the Marriage Act 1949 (c. 76)”,

whereas paragraph 2.9 refers to

    “the prohibited degrees of relationship for the purposes of the 2004 Act.”

I should like an explanation—if indeed a Foreign Office Minister is qualified to offer one—of the difference between the prohibited degrees of
 
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relationship for the purposes of the two Acts, which it seems to me is not forthcoming in the explanatory memorandum.

4.52 pm

Mr. Alexander: To be forewarned is to be forearmed, Mr. Williams. I was aware before I addressed the Committee of the expertise and knowledge—particularly as regards gender recognition—of the hon. Member for Daventry (Mr. Boswell), who has not disappointed the Committee either in respect of his eloquence or in respect of the searching nature of his questions. He gently suggested that the basis of the order was a troika of little difficulties. Let me endeavour to respond to each of them in turn.

The hon. Gentleman was generous in recognising that some of his questions bear on international private law more generally. In November 1997, I found myself rather unexpectedly elected to this House. Had I not so found myself, my plan was to start divilling in the Faculty of Advocates in Scotland, for which one of the prerequisites is a pass in international private law. I managed to pass the course, although as I sat anticipating the hon. Gentleman’s questions and my answers to them, I am afraid that most of the coursework seemed to have flown from my mind. My colleague the Parliamentary Under-Secretary of State for Culture, Media and Sport and I have in common the fact that we both studied and practised law before entering the House. When I see him at his Christmas drinks party on Sunday evening, I shall remind him forcefully that it would have been a great pleasure to have him alongside me as I sought to answer the hon. Gentleman’s questions today.

The hon. Gentleman asked first about paragraphs 2.8 and 2.9 of the explanatory memorandum, dealing with the operation of section 97(8) of the 2004 Act, and about the information available to registrars general for other jurisdictions—particularly in relation to their searching for information about prohibited relationships. As I narrated in my introductory remarks, the order applies to England and Wales only. The arrangements for access to birth records in Scotland—where we have a separate Registrar General—are different, reflecting both the distinctive canon of Scottish law, which of course is civilian rather than common, and the fact there are no restrictions relating to those adopted persons under 18. That remains the case, so I can assure the hon. Gentleman that a different approach is taken.

On the question put to me about adoption—on the information contained in the registers of live births and other records—the Registrar General is only able to check information contained in the records that he is empowered to maintain by statute, including records of live births, marriages and deaths.


 
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It was put to me that other relationships that fall outwith the scope of civil partnerships are none the less of sufficient proximity and closeness that they should merit specific consideration under the Companies Act. I note what the hon. Gentleman said, but that is not within the remit of the order or of the Civil Partnership Act 2004. The matter would be better addressed in any further consideration of the Companies Act that might arise.

On the question of whether the Companies Act provisions on employee share schemes apply to United Kingdom residents or UK nationals abroad, the residence and nationality of employees and spouses—or, indeed, of civil partners—is not the relevant test. I am informed that the provisions apply in relation to all employees of UK companies. It is the legal designation of the company that is the key.

A couple of further points were put to me. The first was about the difference between paragraphs 2.8 and 2.9 on the prohibited degrees of relationship. The prohibited degrees for marriage are set out in the schedule to the Marriage Act 1949. Those relating to civil partnerships are in a schedule to the Civil Partnership Act 2004. Given the nature of the relationship to be formed, there are differences between the two sets of prohibited degrees. Both determine the eligibility of a person to be married or to form a civil partnership. I hope that I have addressed the point raised by my hon. Friend the Member for Morley and Rothwell (Colin Challen).

A more general point was raised about whether constraints or limitations should be placed on the extent to which diplomats fall outwith the reach of domestic law. Apart from a handful of high officers, most officials of international organisations enjoy only functional immunity for their official acts. By definition, a criminal act such as the one alluded to by the hon. Member for Daventry is not considered to be an official act; that person would thus have no immunity even under the present legal regime.

A further substantive point was raised about whether the Government were being put under pressure by the European Court of Human Rights. I assure the Committee that that is not the case. The policy decision to introduce civil partnerships was taken by the Government essentially because it was the right thing to do. We would welcome compliance by other European Union states, but it is ultimately a matter for each state to decide, depending on the policy choices available to them.

I hope that I have dealt with the substantive points raised by the Committee, and that hon. Members will support the order.

Question put and agreed to.

Resolved,

    That the Committee has considered the draft Civil Partnership Act 2004 (International Immunities and Privileges, Companies and Adoption) Order 2005.

Committee rose at two minutes to Five o’clock.

                                                                                           
 
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