Appendix
Letter from the Chair to Rt Hon Patricia Hewitt
MP, Secretary of State for Trade and Industry, Minister for Women
and e-Minister in Cabinet
The Committee is considering how to report to each
House on the above Bill. It has carried out an initial examination
of this Bill and would be grateful for your comments on the following
points raised by our Legal Adviser. Our startingpoint is
of course the statement made under s.19(1)(a) of the Human Rights
Act 1998; but I should make it clear that the Committee's remit
extends to human rights in a broad sense, not just the Convention
rights under the Act.
THE SCOPE
OF THE
BILL: OPPOSITE-SEX
COUPLES
Opposite-sex couples will not be eligible to register
as civil partners under the Bill. This raises an issue as to whether
the Bill gives rise to unjustified discrimination against unmarried
but cohabiting opposite-sex couples who could claim that their
relationship is to be treated as being analogous to that of married
couples or same-sex civil partners.
The Government justifies the difference of treatment
by relying on its policy of promoting marriage as the best framework
for stable family relationships for opposite-sex couples. It is
clear from the recent decision of the House of Lords in Mendoza,[44]
however, that once Parliament extends the scope of a particular
benefit, exemption or protection beyond married couples, it is
far more difficult to demonstrate that the purpose of such provisions
is the promotion of marriage. So, for example, once the scope
of protection for security of tenure in the Rent Act was extended
by Parliament to include cohabiting unmarried couples, it was
held to be clear that the underlying reason for the protection
was not the promotion of marriage, but the social policy reason
that survivors of such relationships have a special claim to security
of tenure. Once that step had been taken, it was held that there
was no rational or fair ground for excluding same-sex couples
who also share their lives and make their home together.[45]
By the same token, when the Bill comes into force,
a number of statutory benefits, protections and exemptions will
be extended beyond marriage to same-sex couples who register as
civil partners. According to the House of Lords in Mendoza,
the promotion of marriage can no longer be relied upon in relation
to those protections. Once that step is taken, there must be a
rational or fair ground for excluding opposite-sex couples who
also share their lives and make their home together.
Question 1: In light of the decision of the House
of Lords in Mendoza, what is the Government's reason for not allowing
unmarried heterosexual couples to register as civil partners?
The Government also argues that any difference of
treatment of opposite-sex couples is justified because unmarried
heterosexual couples are free to marry and therefore "choose"
the less favourable legal treatment of their relationship. A decision
of the Supreme Court of Canada, in a case called Miron v Trudel,
considered and rejected this argument as a justification for treating
unmarried opposite sex couples differently from married couples.[46]
It held that there are two problems with the "choice"
justification. First, heterosexual couples who choose not to marry
may do so for very personal reasons of conscience and belief (for
example because of the historical implications of the term "marriage"
and the historical nature of the institution as a property transaction
in which the woman was treated as property).[47]
Second, being unmarried may not always be a choice made by both
partners in an unmarried relationship: some are unable to persuade
their partners to enter into marriage.
Question 2: Does the Government accept that unmarried
opposite-sex couples who share their lives together in a relationship
which could claim to be analogous to marriage may decide not to
marry for reasons of personal belief or conscience?
Question 3: Does the Government accept that unmarried
opposite-sex partners who share their lives together in a relationship
which could claim to be analogous to marriage might not marry
due to the reluctance of one partner to enter into marriage, and
that in such cases there is a social need to provide protection
for the other partner and any children of the relationship?
The complexity of reforming the law in order to remove
the less favourable treatment of opposite-sex couples might be
offered as a justification for the exclusion of opposite-sex couples
from the scope of civil partnerships. However, the onus is on
the Government to demonstrate that this complexity requires a
separate measure of law reform rather than simply allowing unmarried
opposite-sex partners to be eligible for civil partnership. The
Government has indicated that it intends to refer the question
of reform of the law of cohabitation to the Law Commission.
Question 4: Can you indicate in outline the likely
terms of reference to the Law Commission? In particular, can you
confirm that the Law Commission will be asked to consider all
aspects of less favourable treatment of unmarried cohabiting opposite-sex
couples compared to married couples and civil partners, and not
merely those relating to rights in shared property?
SURVIVOR'S
PENSIONS
The pension provisions in the Bill will give rise
to differential treatment of same-sex couples, compared to married
couples, in relation to contributory benefits on grounds of sexual
orientation. Such less favourable treatment requires weighty justification
to be compatible with human rights law. The onus is on the Government
to provide the evidence to demonstrate that less favourable treatment
is justified. The Committee would therefore welcome answers to
the following questions about the justification relied on.
Question 5: What will be the actual additional
cost annually to public service schemes if survivor pension benefits
are available to civil partners on the same basis as they are
currently available to widowers (i.e. taking account of pensionable
service/contributions since 1988) and the take-up of civil partnership
is about 5-10% of the take up of marriage by opposite-sex partners
(as the Government predicts)?
Question 6: Can the figure of £6-15 million
a year, which has been quoted by NGOs and others on the basis
of actuarial advice, be relied on?
Question 7: How much is the additional cost expressed
as a percentage of the cost of providing such benefits to opposite
sex couples?
Question 8: Can you confirm that the Treasury
does not regard the cost as substantial?
Question 9: What proportion of public service
schemes already provide for survivors of cohabiting relationships?
Question 10: Do public service schemes currently
have a discretion to provide survivor benefits to same-sex couples?
Question 11: What assumption is currently made
about the proportion of scheme members who will leave a surviving
partner at death who is entitled to benefit under the scheme?
Question 12: What is the statistical basis for
that assumption?
Question 13: Do the actuarial assumptions include
an assumption that a certain proportion of scheme members are
gay and therefore will not leave a surviving spouse who is entitled
to benefit?
In view of the progress of the Bill the Committee
wishes to report your responses to the above questions, and its
conclusions on them, at as early a date as possible. The Committee
would therefore be grateful for a reply by 29 July, or earlier
if at all possible.
12 July 2004
44 Ghaidan v Godin-Mendoza (FC) [2004] UKHL
30 (21 June 2004). Back
45
See for example Lord Nicholls [2004] UKHL 30 at paras 17-18; Baroness
Hale, ibid., at paras 138 and 143. Back
46
(1995) SCR 124 DLR (4th) 693. Back
47
"… people who make a conscious decision not to subscribe
to the institution of marriage may very well be motivated by very
personal beliefs which have nothing to do with the contractual
rights and obligations that incidentally attach to that status"
(L'Heureux-Dube J.).A similar point was made by Lord Goodhart
on Second Reading, HL Deb, 22 April 2004 col. 396. Back
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