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Baroness Butler-Sloss: I wonder if I would be forgiven for saying that the current law in relation to footballers’ wives comes under the Matrimonial Causes Act. The House of Lords has made it clear that the phrase

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“reasonable needs” is no longer appropriate between spouses. The words “reasonable needs”, which used to be the law between husbands and wives, is no longer the law between them. That is why the phrase is in the Bill. It takes us back to a situation where a moderate sum is paid, not a footballer’s wife large sum. They come under House of Lords decisions, which are a completely different state of law.

Baroness Deech: I am referring to footballers’ girlfriends and to the clause in the Bill that, at the moment, includes just about everything in consideration of financial relief, although I hope that we will cut it down dramatically. There is no telling what those reasonable needs will be. Two sisters or a father and daughter cannot, of course, take advantage of Schedule 1 to the Children Act, which allows for support for the mother of a child. If there is anything wrong with it, it could be amended, but it would be a pity when all that is necessary is a small amendment to Schedule 1 to bring in this whole panoply of cohabitation law, which as it stands will simply lead to family members, such as sisters, who have lived together feeling hard done by because their contribution is not recognised. I see no reason why they should not be included. Later I hope to speak to an amendment about inheritance tax, but for now I think that family members should be included.

Baroness Kennedy of The Shaws:How would the noble Baroness answer the question about whether her amendment would drive a coach and horses through taxation law? The noble Baroness may not believe that inheritance tax should exist but I happen to believe very strongly that it should exist because of the distortions created within society by the passing on of great riches. Would this provision not be used as a way of undermining the taxation system which seeks to create greater equity within our society?

Baroness Deech: I completely share the concerns of the noble Baroness. Later we shall come to an amendment in which I propose a discretion for the court to allow for a roll over or deferral of inheritance tax—simply a discretion. I do not for a moment suggest that we should create a loophole whereby any two family members can use this to avoid inheritance tax. The Committee will know of the much debated and much discussed case of the Burden sisters. That is the one situation which I have in mind. I also cannot see the logic of knocking out prohibited degrees of relationships at this stage. We are not talking about people forming a sexual relationship; we are simply talking about a situation in which two, possibly elderly, members of one family live together. They alone will be excluded from the benefits now given to divorcing couples and civil partners.

The Deputy Chairman of Committees (Baroness Pitkeathley): Can the Committee be clear about whether the noble Baroness has moved Amendment 2? It is,

Baroness Deech: Yes, I beg to move.

Lord Lester of Herne Hill: I have great sympathy with the problem of the Burden sisters and others. During the consultation on this Bill one of the original

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ideas that we put forward was that it might be possible to do something for siblings and other carers in that capacity. In the end, the reason why we decided to limit the scope of the Bill as we have to cohabiting couples in a sexual relationship was because we realised that if we tried to widen the Bill to cover siblings and carers of all kinds, it would be inconceivable that any Government, including a future Conservative Government, if there were one, would ever accept such a measure. We remembered Rab Butler's famous reference to politics being “the art of the possible”. There is no fundamental difference in principle about the need to do something for people like the Burden sisters. Of course, they lost their case in Strasbourg, where the court said that there was no obligation to deal with the difference of treatment from which they suffered.

I apologise for referring to the noble Lord, Lord Henley, incorrectly as “Viscount”. I meant no disrespect at all, rather the contrary. The noble Lord will remember that we have been here before. During the passage of the Civil Partnership Bill, an attempt was made to widen it beyond civil partnerships to all carers, a topic which was put again and again by those who sought to oppose or wreck the Bill. The Government firmly resisted that. I should be interested to know whether that would be the position today, although I know the Government have reservations about the Bill as a whole.

We have been very careful about how the Bill is now framed and the noble Baroness, Lady Deech, has not complained about this on any earlier amendments. The Long Title makes it very clear what the Bill is about. It states:

“Provide certain protections for persons who live together as a couple or have lived together as a couple.

Clause 1(1)(a) says,

and in the definition of “cohabitant”, Clause 2(1)(a) says,

So the scheme of the Bill is that there is a sexual relationship between a cohabiting couple. The condition in Clause 2(3)(b), which the noble Baroness wishes to delete, is that the cohabitees,

In other words, although the Bill is dealing with a cohabiting couple, what is being proposed is what in marriage would be regarded as incest. I know that is not the noble Baroness’s proposal but that is what it comes to. We have been extremely careful to make sure that the only people who can benefit from the Bill are those who are not in prohibited relationships in the same way as would apply to marriage.

Baroness Deech: The noble Lord mentioned living together as a couple and then went on to say that this implies a sexual relationship. This definition is not in the Bill; it is novel and I do not think that all of us would assume that living as a couple entails a sexual relationship. What about two people aged 90 in an old-age home—where, no doubt, all of us will find ourselves one day—who decide to share a home with a

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carer? I do not think there is any requirement in this Bill for a sexual relationship and we cannot presume that it is there or that it should not be.

Lord Lester of Herne Hill: The noble Baroness, Lady Deech, should do justice to herself. She knows perfectly well that the reason why she is seeking to delete the paragraph on prohibited relationships is because she wishes it not to be confined to a sexual relationship. She is under no doubt that the Bill is dealing with a couple living together in a sexual relationship. If that were not clear, we could make it absolutely clear later in the passage of the Bill. She is seeking to apply it to brothers and sisters and everybody else implied by “within prohibited degrees” because she wants to do justice to the Burden sisters and to carers generally. She also wants to deal with inheritance tax. She does not want to abolish inheritance tax; she wants to treat a cohabiting couple in a non-sexual relationship in the same way as a married couple, but giving a discretion instead of a right, so that when, let us say, the man dies and the wife—or in this case the cohabitee—would normally be liable for inheritance tax, that can be postponed. I understand why she is doing that but it is wholly outside the scope of what is in intended and would kill the Bill. Since I know that the noble Baroness, Lady Deech, is an enemy of the Bill, I suspect that is her true object, but I strongly oppose the amendment for the reasons I have just summarised. It would not be possible for any Government, including a Conservative Government, to approve a Bill of this nature, dealing with it in this way. I hope to hear from the Minister on that point.

Lord Henley: Before the Minister responds, I will say a word or two. I assure the noble Lord, Lord Lester of Herne Hill, that I also remember the Civil Partnership Bill on which my noble friend Lady Wilcox spoke for our party. That was a government Bill, which seemed appropriate for a matter of this sort, and we explored—although I do not think at any stage we voted on—the question of what, for reasons of simplicity, we will refer to as the case of the Burden sisters and others. I would not suggest pressing this amendment to a Division at this stage, partly because, although I am speaking from the Front Bench, I am not speaking for our party, as we do not do that on Private Members’ Bills. I am responding for myself and I imagine most right-minded people in the Conservative Party would agree with me, but I have no idea what any future Conservative Government are likely to do in relation to a Bill of the sort that the noble Lord has put before us.

What I know is that most of us would think that a matter of this sort is more appropriately dealt with by a government Bill, as was the Civil Partnership Act 2004. It might be that this Government, in their dying days, if they can find nothing else to do, will bring forward such a Bill and we could have some fun discussing it.

At this stage on a Thursday evening to be discussing matters of this sort when we have another 30 or 40 amendments and we are quite obviously not going to finish the Bill seems pointless. All I can say is that I

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have extraordinary sympathy for the amendment; that is why I added my name to it. It is right that one should do something to help with inheritance tax or other matters relating to financial support those who are living together but are not necessarily cohabiting in the noble Lord’s sense of the word. I therefore support the noble Baroness on her amendment; it may not be the right amendment to divide on, but there may be other amendments later on which we want to divide, because there are major financial implications. At this stage, we would all be very grateful if the noble Lord, Lord Brett, could explain to the House what those are and give the Government’s view, because this is one amendment—there will be others—on which the view of the Government is very important.

Lord Pannick: Before the Minister gives us the benefit of the view of the Government, perhaps I may say a few words. I first declare an interest as counsel for the Burden sisters in their unsuccessful claim in the European Court of Human Rights. Some counsel invariably convince themselves, if not the court, of the justice of every cause that they are advancing. I am not in that category, but I share the concerns expressed by the noble Baroness, Lady Deech, that the Burden sisters and others like them are unjustifiably discriminated against by the state in being denied similar tax and other benefits to cohabiting partners who are not related. I very much hope that the Government will listen to the repeated concerns expressed by the noble Baroness and others that a step should be taken to amend inheritance law to remedy the injustice to the Burden sisters and others in their circumstances.

However, the Bill is not an appropriate vehicle to secure that aim. The Bill is intended to remedy a specific social mischief. To expand its aims would inevitably make it even less likely that it will be enacted.

Baroness Butler-Sloss: I, too, have the greatest possible sympathy with the amendment and with the noble Baroness in her promotion of it, but I agree with the noble Lord, Lord Henley, that this is a matter that ought to be in a government Bill at some stage. As the noble Lord, Lord Pannick, said, I should like to think that the Government will look at the matter, because there is a manifest injustice to the people involved, but it is not appropriate that it should be in the Bill. The Bill is intended to deal with men and women and single-sex couples living in a relationship which has some analogy with marriage. It is a relationship, whether it is sexual or not, which is treated as a couple in a way that two sisters or father and daughter are not so treated or so understood in ordinary language. I hope that the noble Baroness would not feel it necessary to press the amendment for the reasons that the noble Lord, Lord Henley, has already given.

Baroness Deech: It is reassuring to hear the support for the amendment. An answer to two small points would enable me to let go of this. One is that the noble Lord, Lord Lester, has indicated that the way the Bill is drafted, together with the amendment in my name and that of the noble Lord, Lord Henley, must mean

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that a couple is having a sexual relationship, whereas the noble and learned Baroness, Lady Butler-Sloss, said otherwise.

Lord Lester of Herne Hill: I did not mean to say that it was as narrow as that. The way it has just been put by the noble and learned Baroness, Lady Butler-Sloss, is the correct way of putting it, which is that it is in many respects analogous to marriage. It is not about whether there is actual sex; it is that it is a cohabiting couple in a continuous relationship. That is the point. We are not dealing with sexual matters, nor should we in the Bill.

Baroness Deech: That is reassuring. One of the scenarios we feared is questions when determining finance about the extent of sexual relationship. I am glad to hear that that is not included. It would be reassuring if the Government would indicate whether they have heard our concerns about the Burden sisters and will do something in the future for people like that.

Lord Brett: I rise to inform the debate and not particularly to respond to it. These linked amendments effectively include Amendment 26, which also was spoken to. These amendments change the conditions that must be met for the Bill’s provisions to apply. The requirement to live as a couple remains, but the requirement that couple should not be within prohibited degrees of relationship is removed. This, as has been said, would appear to mean that, for example, a brother and sister could live together as a “couple” and be considered “cohabitants” within the meaning of the Bill, so that the provisions of the Bill would apply.

That would seem to me to raise at least several major issues, not the least of which is the difference between family members—brothers and sisters—and those who are married or in civil partnerships. The latter have made a formal public commitment with legal consequences, while brothers and sisters and other family members simply have not. Also, the families about which the noble Baroness and others have spoken may be the kind of families that are totally at one in understanding outcome and outlook and that never have even a tiff. However, that is not necessarily the situation in all families in the United Kingdom. It is quite possible to have someone living together as sisters or brothers, or a mixture of both, that fall out violently. The consequence of this, if it were to be enacted, would be the possibility of litigation once they have ceased to live together. The Committee will therefore understand why the Government are not supportive of these amendments.

The noble Lord, Lord Henley, invited me—tempted me, even—to suggest that the Government might have nothing better to do in their dying days than to introduce legislation. As the Committee knows, in 2006 Scotland introduced provisions similar to those recommended in the Law Commission report. We wish to learn and assess from its experience before we move down that track in any way. The noble Lord, Lord Henley—a near neighbour of mine in the beautiful county of Cumbria—and I are both quite proud of the size and quality of the chickens that we have in

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that county. I can only suggest that he should not count quite as many as he seems to have counted at the moment.

Baroness Deech: I beg leave to withdraw the amendment.

Amendment 2 withdrawn.

Amendment 3

Moved by Baroness Deech

3: Clause 2, page 2, line 12, leave out “taken into account” and insert “disregarded”

Baroness Deech: This amendment and those coupled with it are about retrospectivity. One of the striking features about the Bill’s drafting is that it is retrospective in looking at cohabitation that occurred before the commencement date while at the same time ignoring agreements that might have been made before the commencement date. It seems to me not right that the law should apply to two people who started to live together before the Act, especially as they will have made no formal commitment, as the Minister has just pointed out. That is the whole trouble with the Bill. People who have deliberately avoided making a commitment are to have a law placed upon them. Yet, at the same time, in English law, when adult married couples make a prenuptial or post-nuptial agreement it is largely ignored by the court. It is an extraordinary situation.

Certainly, the law should not be retrospective. The retrospective application of the law is nearly always against the rule of law. This goes back into history. Citizens should know, in advance, before they take any action, what law will be applied to what they are doing. In the past, people will have entered cohabitation in the belief that it is a private affair between the two of them. They chose it deliberately because there would be no consequences. To come along at this stage and catch that previous cohabitation seems very unfair and contrary to what we normally understand the reach of the law to be. Blackstone and the Athenians were against retrospectivity. Allah is said to have been against retrospectivity. He allegedly said, “We never punish humankind before I have sent in a messenger”.

6.30 pm

This amendment will prevent the clause operating at a time prior to the enactment of the Bill, which would therefore cut down that which I fear—namely harassment, blackmail and threats of litigation. It seems to me that the legal consequences of actions taken in the past should be determined by whatever law applied then and not be subject to law which was not discoverable at the time. After all, even in the case of Sir Fred Goodwin, did we not all cry out in outrage at the thought that something might be taken from him retrospectively? European law says that a,

We should be careful throughout this Bill to make sure that there is no counting of previous cohabitation and that where we are counting a two-year period, beyond which one would not be able to bring an

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application because the cohabitation is too old, this should operate only after the commencement date. It is extremely important that if a Bill like this is passed, people should get the maximum publicity and should know what they are letting themselves in for. We should not open the floodgates.

When I taught at Oxford University, I used to warn my male students that if they ever lived with a girl they should be very careful not to say anything like, “Come and live with me. You will be safe. All this will be yours”. That was because they would launch themselves into an estoppel or constructive trust situation. I must have produced a generation of very silent lovers, but I did at least warn them. It is extremely important in this situation to know what you are doing and that extremely informal arrangements of the past should not be, as people would see it, penalised. I am very concerned about the shortage of legal aid for cases like this.

In recent months, the Family Law Bar Association and others have protested vigorously that some of the most serious cases we face of vulnerable battered women and babies are not getting proper legal attention because the family legal aid bill is being cut by £6 million. I cannot find it just that we should open a door to cases between cohabitants who in the past had no idea that this would happen while at the same time cutting legal aid for genuine physically dangerous situations that exist now.

This Bill needs publicity and needs to allow people to think about what they are doing. That is the purpose of this amendment, which I hope the Committee will support. I beg to move.

Lord Henley: I fully support the noble Baroness, Lady Deech, in Amendment 3, which is grouped with Amendments 12 to 14 and attempts to deal with the whole problem of retrospection. I shall be very interested to hear what the noble Lord, Lord Lester, has to say on this in due course. I imagine that, as a good lawyer and a good human rights lawyer, he will be opposed to retrospection as much as we are. When the noble Lord comes to reply, perhaps he could also deal with the points I asked earlier on the commencement of the two or five years. I still think that it is a difficult evidential problem that will create a lot of joy for the lawyers and which we would like to have dealt with before we see the departure of this Bill.

How do we define when that cohabitation started? I talked rather flippantly of the one-night stand, or maybe the second one-night stand, starting off that process. Perhaps it was when the toothbrush moved into the other party’s quarters, or does it need slightly more than a toothbrush—for example, a suitcase full of clothes as well? No doubt, the noble Lord will be able to assist the Committee in providing an answer to the point that I asked him about on Amendment 1.

Baroness Butler-Sloss: I am afraid that the noble Lord, Lord Henley, will have to hear me give the answer first. There is no reason why the noble Lord, Lord Lester, should not give it as well. I oppose the amendment. I take the point of my noble friend Lady

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Deech about retrospectivity, but we are dealing with a particular group of people who have been in long pre-existing relationships and who will need help. If we make this provision as from the date when the Bill becomes law, they will have to wait another five years before they and their children, who may by then be grown up, get any help of the kind that I hope the Bill could give.

It is intended that the Bill should be retrospective because it is there to help that comparatively small but significant group of vulnerable people, mainly women. A large number of battered women are cohabitants. They need not only injunctions on non-molestation orders but financial support. One without the other does not go far. So the legal aid that was being given, if it is given, to the battered woman would not be a great extension for her to obtain a certain amount of money to help her bring up the children.

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