Joint Committee On Human Rights

Joint Committee On Human Rights Fifteenth Report

Formal Minutes

Wednesday 7 July 2004

Members Present:

Jean Corston MP, in the Chair

Lord Bowness

Lord Campbell of Alloway

Lord Judd

Lord Lester of Herne Hill

Lord Plant of Highfield

Baroness Prashar

Mr David Chidgey MP

Mr Kevin McNamara MP

Mr Paul Stinchcombe MP

Mr Shaun Woodward MP

The Committee deliberated.

* * * * *

Draft Report [Civil Partnership Bill], proposed by the Chairman, brought up and read.

Ordered, That the draft Report be read a second time, paragraph by paragraph.

Paragraphs 1 to 11 read and agreed to.

Paragraph 12 read as follows:

"The House of Lords found that there was a difference of treatment between same-sex couples and heterosexual unmarried couples (those living together as husband and wife) to whom the Act's protection had been extended. Same-sex couples can have exactly the same sort of inter-dependent relationship as heterosexual couples can, and are therefore treated as analogous. The difference of treatment was based solely on sexual orientation and required cogent reasons to be justified. The Lords found that no such justification had been put forward, and that singling out heterosexual couples for more favourable treatment did not serve the aim of protecting the traditional family. They concluded that discouraging stable, committed, marriage-like same-sex relationships could no longer be regarded as a legitimate aim, and that the exclusion of same-sex couples from the protection given to the security of tenure of married and cohabiting opposite sex couples therefore failed to serve any legitimate aim and for that reason was incompatible with Article 14 ECHR."

Amendment proposed, in line 9, leave out "marriage-like".—(Mr Kevin McNamara.)

Question put, That the Amendment be made.

The Committee divided:

Content, 1

Mr Kevin McNamara MP

Not Content, 9

Jean Corston MP

Lord Bowness

Mr David Chidgey MP

Lord Judd

Lord Lester of Herne Hill

Lord Plant of Highfield

Baroness Prashar

Mr Paul Stinchcombe MP

Mr Shaun Woodward MP

Paragraph 12 agreed to.

Paragraphs 13 and 14 read and agreed to.

A paragraph—(Mr Kevin McNamara)—brought up and read as follows:

"This same logic must apply to the distinction against unmarried sexual relations and others covered by amendment made to the Bill in their Lordships' House. In our Report on the Finance Bill [Twelfth Report of Session 2003-04]this matter was dealt with in paragraphs 2.55-2.57, headed spouse exemptions, which stated—

2.56 The term "spouse" is not defined in this Bill, nor in the Inheritance Tax Act 1984, but is interpreted by the courts as meaning "parties to a lawful marriage". Confining the benefit of the exemption in paragraph 10 of Schedule 15 to the parties to a lawful marriage excludes from the scope of that exemption homosexual couples who live together as de facto spouses (but are legally unable to marry), heterosexual unmarried couples who live together as de facto spouses and people sharing a home on the basis of a long-term or family relationship which is not a sexual relationship.

2.57 The spouse exemption in Schedule 15 to the Act therefore engages Article 14 in conjunction with Article 8 and Article 1 of Protocol No. 1 ECHR: by discriminating on grounds of sexual orientation and marital status, it raises the question, what is the objective and reasonable justification for excluding de facto spouses from the benefit of the exemption. We draw this matter to the attention of each House."

Question put, That the paragraph be read a second time.

The Committee divided:

Content, 1

Mr Kevin McNamara MP
Not Content, 9

Jean Corston MP
Lord Bowness
Mr David Chidgey MP
Lord Judd
Lord Lester of Herne Hill
Lord Plant of Highfield
Baroness Prashar
Mr Paul Stinchcombe MP
Mr Shaun Woodward MP

Paragraph 15 read as follows:

"The Government has indicated throughout the debates on the Bill that it fully accepts that in order to remove already established and likely future incompatibilities between domestic law and the right not to be discriminated against in the enjoyment of Convention rights on the grounds of sexual orientation, legislation needs to remove all examples of differential treatment between same-sex and opposite sex couples in areas which engage Convention rights, unless and to the extent that there are serious and weighty reasons which justify such differential treatment."

Amendment proposed, at the end to add the words "but it does not justify the continuation or accentuation of discrimination against other e.g. non-married heterosexual couples and others in non-sexual long term same household relationships." —(Mr Kevin McNamara.)

Question put, That the Amendment be made.

Paragraph 15 agreed to.

Paragraph 16 read and agreed to.

Paragraph 17 read as follows:

"The main human rights issues raised by the Bill are:

(1) whether in order for the Bill to be compatible with current human rights law it is necessary to include other relationships of interdependence between adults under one roof within its scope;

(2) whether the exclusion of opposite sex couples from the scope of the Bill requires justification; and

(3) whether the provisions concerning survivor's pensions give rise to a risk of unjustifiable discrimination between same-sex couples and married heterosexual couples."

Amendment proposed, in line 5, after "couples" insert "and others" and before "Bill" insert "original" —(Mr Kevin McNamara.)

Question put, That the Amendment be made.

Another Amendment proposed, in line 8, delete "and" after first "couples", after "married" insert "and unmarried", and after second "couples" insert "and others".—(Mr Kevin McNamara.)

Question put, That the Amendment be made.

Paragraph 17 agreed to.

Paragraph 18 read as follows:

"The Bill as originally introduced by the Government applied only to same-sex partners. At Report stage in the House of Lords, an amendment was carried extending the scope of the Bill to certain other family relationships, provided that the two individuals concerned are both over the age of thirty and have lived together continuously for more than twelve years. The amendment has potentially very far-reaching implications for the structure of the Bill as a whole, and would require a large number of detailed consequential amendments to have coherent legislative effect. Baroness Scotland indicated at Third Reading that the Government would seek to reverse the amendment in the Commons, and the consequential amendments have therefore not been offered. The Bill as it stands at present is therefore inconsistent and incomplete, and we make no attempt here to examine the detailed human rights implications that might flow from the fundamental change of purpose proposed in the amendment made on 24 June."

Amendment proposed, in , line 6, delete "would" and insert "will".—(Mr Kevin McNamara.)

Question put, That the Amendment be made.

Another Amendment proposed, in , line 8, delete "would" and insert "will".—(Mr Kevin McNamara.)

Question put, That the Amendment be made.

Another Amendment proposed, in line 8, delete all after "Commons" to the end of the paragraph.—(Mr Kevin McNamara.)

Question put, That the Amendment be made.

The Committee divided:

Content, 1

Mr Kevin McNamara MP

Not Content, 9

Jean Corston MP

Lord Bowness

Mr David Chidgey MP

Lord Judd

Lord Lester of Herne Hill

Lord Plant of Highfield

Baroness Prashar

Mr Paul Stinchcombe MP

Mr Shaun Woodward MP

Paragraph 18 agreed to.

Paragraph 19 read and agreed to.

Paragraph 20 brought up and read the first time.

Question put, That the paragraph be read a second time.

The Committee divided:

Content, 9

Jean Corston MP
Lord Bowness
Mr David Chidgey MP
Lord Judd
Lord Lester of Herne Hill
Lord Plant of Highfield
Baroness Prashar
Mr Paul Stinchcombe MP
Mr Shaun Woodward MP
Not Content, 1

Mr Kevin McNamara MP

Paragraph 20 agreed to.

Paragraph 21 read as follows:

"There may be one exception to this general conclusion. Under the terms of the Bill as introduced, no opposite-sex couples are eligible to register as civil partners. The Government accepts that this raises an issue of compatibility with Article 14 in conjunction with other Convention rights. However, it argued that the exclusion of opposite-sex couples from the scope of civil partnerships did not give rise to unjustified discrimination in breach of Article 14, because heterosexual unmarried couples, unlike same-sex couples, are eligible to marry, if both parties are competent and willing, which will give their relationship legal recognition as does civil partnership. The government argues that heterosexual couples who are unmarried have therefore opted for a lesser degree of legal recognition by choice."

Amendment proposed, in line 1, delete "may be" and insert "is at least".—(Mr Kevin McNamara.)

Question put, That the Amendment be made.

Another Amendment proposed, in line 2, after "couples" insert "or others".—(Mr Kevin McNamara.)

Question put, That the Amendment be made.

Another Amendment proposed, at the end of the paragraph, to add the words, "This long-distance mind reading is only legitimate if the Government can demonstrate that both opposite sex partners are competent to marry and wish to do so.".—(Mr Kevin McNamara.)

Question put, That the Amendment be made.

Another Amendment proposed, to omit footnote 16.—(Mr Kevin McNamara.)

Question put, That the Amendment be made.

Paragraph 21 agreed to.

Paragraphs 22 to 25 agreed to.

Paragraph 26 read as follows:

49. "We note that the Government has agreed to refer the question of reform of the law on cohabitation to the Law Commission. The complexity of reforming the law in order to achieve equality for unmarried heterosexual partners is not a justification for not including them within the scope of the present Bill. It is not yet clear what the Government proposes to do in order to bring such further reform forward. We have written to the Government in connection with this question. We draw this matter to the attention of each House."

Amendment proposed, in line 3, delete "for not including" and insert "for failing to include"—(Mr Kevin McNamara.)

Question put, That the Amendment be made.

Another Amendment proposed, in line 4, delete "present" and insert "original".—(Mr Kevin McNamara.)

Question put, That the Amendment be made.

Another Amendment proposed, in line 4, delete from "Bill." to "We" in line 6.—(Mr McNamara.)

Question put, That the Amendment be made.

Another Amendment proposed, in line 5, after "forward" insert "It is not sufficient for the Government to avoid an immediate decision by referring it to the Law Commission without indicating the time in which it should report and giving a specific time table when it would present the findings of the Law Commission to each House in the form of a Bill." —(Mr Kevin McNamara.)

Question put, That the Amendment be made.

Paragraph 26 agreed to.

Paragraphs 27 to 48 read and agreed to.

Summary read as follows:

"The purpose of the Civil Partnerships Bill is to remove discrimination between the way the law treats the relationships of married heterosexual couples and the way it treats same-sex couples who are legally prevented from marrying.

In general the Committee is satisfied that the Bill as introduced did achieve the aim of removing already established and likely future incompatibilities between domestic law and the right not to be discriminated against in the enjoyment of Convention rights on the grounds of sexual orientation. It welcomes the Bill as a measure enhancing protection for the fundamental human rights of same-sex partners.

Given the uncertainty over the future of the provision of the Bill, inserted at report stage in the House of Lords, greatly enlarging its scope of application, the Committee at this stage makes no analysis of the human rights implications of the Bill were that provision to remain.

The Committee does consider to what extent the exclusion of opposite-sex unmarried couples from the scope of civil partnerships may raise a question of discrimination in the enjoyment of rights. Such relationships are treated as analogous to married opposite-sex relationships. Once Parliament extends various benefits and protections to unmarried same-sex couples who register as civil partners, less favourable treatment of unmarried heterosexual couples on grounds of marital status requires justification.

The Bill as presently drafted will give rise to an inequality of treatment between same-sex couples and married heterosexual couples in relation to survivor's pension benefits under occupational pension schemes. Such less favourable treatment calls for justification."

Amendment proposed, in line 4, before "Bill" insert "original". —(Mr Kevin McNamara.)

Question put, That the Amendment be made.

Another Amendment proposed, to delete lines 9 to 12.—(Mr Kevin McNamara.)

Question put, That the Amendment be made.

The Committee divided:

Content, 1

Mr Kevin McNamara MP

Not Content, 9

Jean Corston MP

Lord Bowness

Mr David Chidgey MP

Lord Judd

Lord Lester of Herne Hill

Lord Plant of Highfield

Baroness Prashar

Mr Paul Stinchcombe MP

Mr Shaun Woodward MP

Another Amendment proposed, in line 14, after "couples" insert "and others".—(Mr McNamara.)

Question put, That the Amendment be made.

Another Amendment proposed, in line 17, after "couples" insert "and others".—(Mr Kevin McNamara.)

Question put, That the Amendment be made.

Another Amendment proposed, in line 20, delete "and" and insert ", non-".—(Mr Kevin McNamara.)

Question put, That the Amendment be made.

Another Amendment proposed, in line 20, after "couples" insert "and others".—(Mr Kevin McNamara.)

Question put, That the Amendment be made.

Summary agreed to.

Motion made, and Question proposed, That the Report be the Fifteenth Report of the Committee to each House.—(The Chairman.)

Amendment proposed, to leave out from the word "That" to the end and insert, "the Committee declines to make any Report to either House because this Report fails to consider the Children Bill as amended by their Lordship's House.".—(Mr Kevin McNamara.)

Question put, That the Amendment be made.

Resolved, That the Report be the Fifteenth Report of the Committee to each House.

Ordered, That certain papers be appended to the Report.

Ordered, That the Chairman do make the Report to the House of Commons and that Baroness Prashar do make the Report to the House of Lords.

[Adjourned till Wednesday 14 July at a quarter past Four o'clock.



© Parliamentary copyright 2004	Prepared 15 July 2004