Legislative Scrutiny: Marriage (Same Sex Couples) Bill - Human Rights Joint Committee Contents

6  Pensions

96. The Equality and Human Rights Commission has said that the Government should take the "opportunity to equalise pension provision for same sex married couples, civil partners and widowers with the benefits enjoyed by widows".[115]

97. In relation to the state pension, widowers are entitled to survivor's pension rights based on contributions from 1988, whereas widows receive their rights from 1978. On the introduction of civil partnerships, the Government decided to treat civil partners as widowers for the purposes of the state pension. The provisions of this Bill will extend entitlement to the state pension to same sex married couples on the same basis as civil partners and widowers. The Government states that the differences in treatment are a result of the pre-existing preferential treatment of women married to men in relation to entitlement to a state pension.[116]

98. The main discrimination problem in relation to pension rights arises in the way in which the Bill deals with married same sex survivors' rights under occupational pension schemes.[117] Under the provisions of the Bill, the surviving spouse of a same sex marriage will be treated in the same way as surviving civil partners. Schedule 9 paragraph 18(1) of the Equality Act 2010 allows employers and pension funds to exclude civil partners from spousal benefits attributable to service prior to 5 December 2005. Depending on the provisions of the scheme, pension rights of same sex spouses may not be the same as pension rights of opposite sex spouses, which may give rise to an issue as to whether this is compatible with Article 14 of the ECHR in conjunction with Article 1 Protocol 1.

99. In its written submission to us, Liberty suggested an amendment to remove Schedule 9 paragraph 18(1) of the Equality Act and the parallel provision in the Bill relating to same-sex spouses.[118]

100. We wrote to the Government to ask whether it has considered amending Schedule 9 paragraph 18(1) of the Equality Act 2010. In its response, the Government explained that this provision is necessary to protect pension schemes from significant additional and retrospective financial burdens.[119]

101. The Government recognised that its policy of treating same sex marriages the same as civil partnerships for occupational pension survivor benefits could create a problem in relation to marriages where one spouse changes legal gender. We welcome the Government's amendments at Report Stage to deal with this.[120] However, we consider that the Government should carry out a full review of pension provisions in relation to survivor pension benefit entitlements of same sex married couples and civil partners to ensure that there is no unjustifiable discrimination in pension scheme provisions. In doing so, we call on the Government to provide precise information about the potential costs of equalising pension rights.

115   Equal Civil Marriage: Equality and Human Rights Commission position paper, June 2012 Back

116   Marriage (Same Sex Couples) Bill, Note for the Joint Committee on Human Rights, February 2013, para 145  Back

117   Liberty, Committee Stage Briefing on the Marriage (Same Sex Couples) Bill, February 2013, para 12 Back

118   Liberty, Committee Stage Briefing on the Marriage (Same Sex Couples) Bill, February 2013, para 12 Back

119   Letter from Rt Hon Maria Miller MP to Chair of the Joint Committee on Human Rights, 18 April 2013, Annex p. 12; HC Deb. 21 May 2013 col. 1144 Back

120   Schedule 4, Paragraphs 17-26 as amended at Report stage; Marriage (Same Sex Couples) Bill Supplementary Note to the Committee, paras 6-9  Back

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Prepared 14 June 2013