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Furthermore, can she confirm whether Amendment 129ZA is in fact necessary? The Question for Written Answer of the noble Lord, Lord Lester of Herne Hill, about what legislative changes would need to be made to enable the UK to ratify Protocol 7 was answered by the late Lord Williams of Mostyn, who said that the common law presumption of "advancement" would have to be altered. I am informed that the judgment of the House of Lords in the Stack and Dowden case has already changed the law in this respect. Am I correct in that assumption? If so, we recognise the good intentions of these amendments but regret that it may be that the noble Lord, Lord Lester of Herne Hill-I am nervous about ever saying this-is mistaken about the legal changes. However, where the noble Lord is concerned, I always stand to be corrected.
Lord Lester of Herne Hill: My Lords, it is not my intention to have a debate tonight about Protocol 7. That is a completely separate matter and no doubt can be debated hereafter if necessary. All I am concerned to do tonight is to sweep away archaic and outmoded provisions and secure equality between the spouses in that respect. One advantage of that would be to leave it open to the Government to take that further step. As far as the other point is concerned, I am not a family lawyer. I have not the faintest idea whether the comments of Lord Williams of Mostyn and the events in the House of Lords did or did not have the effect he said. However, it seems to me that the Government can now tell us whether or not they think that this is necessary.
Baroness Howe of Idlicote: My Lords, I wonder if I could probe a little bit. I would be equally loath to question anything that the noble Lord, Lord Lester, has said, but, with all the other things going on, there has not been time to pose these questions to him. I have in mind the considerable inequalities that still remain between husbands and wives, men and women, with regard to pay, the percentages who get the very top jobs, and pension arrangements. I have to say again that, as far as the European regulations were concerned, I found it extremely disturbing that on issues such as annuities, women and men were not treated the same even though they were equally entitled, by what they had earned over the years, to the same annuity. I still find these things worrying. I would like to be reassured that they are being taken into account; that the Minister has the answers to them; and, above all, that the noble Lord, Lord Lester took all that into account when he was deciding that all these things could just be finished with completely.
Baroness Royall of Blaisdon: My Lords, the Government support the amendments put forward by the noble Lord, Lord Lester of Herne Hill, which, as he notes, remove existing provisions that are discriminatory and out of date. These amendments also address those aspects of UK law that are incompatible with Article 5 of the 7th protocol to the European Convention on Human Rights.
Article 5 of the 7th protocol provides that spouses shall have equality of rights and responsibilities between them and in their relations with their children both during the course of a marriage and in the event of its
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These amendments therefore remove three minor legal provisions which discriminate between spouses. Although technically removing provisions which appear to benefit one spouse over the other, in reality the amendments confer no practical advantage or disadvantage on either spouse. The noble Lord, Lord Lester, set out very clearly the three provisions in question, so I will not reiterate those points.
The noble Lord, Lord Hunt, asked me about new Clause 129ZC and whether it is absolutely necessary. He cited my erstwhile friend Lord Williams of Mostyn in relation to the amendment. We believe that new Clause 129ZC amends the final rule so that it applies equally to husbands and wives and so that property derived from a housekeeping allowance is owned by the husband and wife in equal shares regardless of who paid or received the allowance. So we do believe that it is necessary.
In addition, new Clause 129ZD, tabled by the noble Lord, Lord Lester, inserts a new Section 70A into the Civil Partnership Act 2004 to provide, as he said, for the equal division of housekeeping allowances paid by one civil partner to another. This is in line with the Government's objective that civil partners should have parallel rights to those of married people, and the Government are very pleased to accept this amendment. As the noble Lord says, these amendments represent an important opportunity not only to remedy outmoded inequalities in our domestic law but also to remove this barrier to ratification of the 7th protocol to the European Convention on Human Rights. The Government have long indicated their commitment to ratification of the protocol, and I am grateful to the noble Lord for tabling these amendments to the Bill, which will allow us to move this process forward.
The noble Lord, Lord Hunt, asked about scrutiny of the 7th protocol and what vehicle would be used for legislative changes. The amendments moved today suffice to make our law compatible with the 7th protocol, so we have the perfect vehicle right before us today. We are considering that very vehicle now. There would need to be the usual consideration under the Ponsonby rule of the ratification of the 7th protocol, but that cannot now be completed in this Parliament. In particular, it would require an affirmative vote in each House.
The noble Lord asked whether presumption of advancement remained after the case of Stack v Dowden. The presumption of advancement still applies after that case, which relates only to ownership of the domestic home and not to other property.
I well understand the concern expressed by the noble Baroness, Lady Howe of Idlicote, when she suggests that women still have a very tough time with regard to equality in insurance, pay and so on. I reiterate that the Government are totally committed to equality. We wish to remove the provisions that treat either husbands or wives in a discriminatory way. In practical terms, women will not lose out as a result of this Bill, as I have explained, and it will remove
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Lord Lester of Herne Hill: My Lords, I am extremely grateful. I share the concerns expressed by the noble Baroness, Lady Howe, about wider inequalities that cannot be removed, but this is a very modest mouse of a series of proposals that are needed to scrap some archaic laws. It does not seek like a lion to sweep away all inequality against women, although I wish it could. The very fact that the Bill team could produce answers immediately to highly technical questions reminds me that I should apologise through the Committee to them for having singled out two members of the team for special praise. I am reminded that they are a team as a whole; by singling out two of them, I did not mean in any way to discriminate against the others. As for scrutiny of ratification of human rights treaties, or any treaties, the House knows that for years I have been saying that we need a mechanism in this House for a treaty scrutiny committee. I am delighted that the Ponsonby rule has been firmed up as it has, but it needs to be made stronger. Finally, above all, I thank the Minister and noble Lords very much for accepting the amendments.
129ZB: After Clause 195, insert the following new Clause-
"Abolition of presumption of advancement
(1) The presumption of advancement (by which, for example, a husband is presumed to be making a gift to his wife if he transfers property to her, or purchases property in her name) is abolished.
(2) The abolition by subsection (1) of the presumption of advancement does not have effect in relation to-
(a) anything done before the commencement of this section, or
(b) anything done pursuant to any obligation incurred before the commencement of this section."
129ZC: After Clause 195, insert the following new Clause-
"Amendment of Married Women's Property Act 1964
(1) In section 1 of the Married Women's Property Act 1964 (money and property derived from housekeeping allowance made by husband to be treated as belonging to husband and wife in equal shares)-
(a) for "the husband for" substitute "either of them for", and
(b) for "the husband and the wife" substitute "them".
(2) Accordingly, that Act may be cited as the Matrimonial Property Act 1964.
(3) The amendments made by this section do not have effect in relation to any allowance made before the commencement of this section."
129ZD: After Clause 195, insert the following new Clause-
"Civil partners: housekeeping allowance
(1) After section 70 of the Civil Partnership Act 2004 insert-
"70A Money and property derived from housekeeping allowance
Section 1 of the Matrimonial Property Act 1964 (money and property derived from housekeeping allowance to be treated as belonging to husband and wife in equal shares) applies in relation to-
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(a) money derived from any allowance made by a civil partner for the expenses of the civil partnership home or for similar purposes, and
(b) any property acquired out of such money,
as it applies in relation to money derived from any allowance made by a husband or wife for the expenses of the matrimonial home or for similar purposes, and any property acquired out of such money."
(2) The amendment made by this section does not have effect in relation to any allowance made before the commencement of this section."
Amendments 129ZB to 129ZD agreed.
Amendments 130 and 131 not moved.
131A: Clause 196, page 122, line 2, leave out "Before making the order" and insert "If the Minister proposes to make an order under this section"
Baroness Royall of Blaisdon: Government Amendments 131A, 131B, 134B, 134C, 134ZA, 134ZB and the new Clause in Amendment 134ZC concern the power in Clause 196 that would allow us to ensure that the Bill does not quickly fall into disrepair as a result of changes in European Law-what we call the "harmonisation power". As time is extremely tight, I hope that noble Lords will forgive me if I also address Amendment 134, tabled in the name of the noble Baronesses, Lady Warsi and Lady Morris, and also their intention to oppose the Question that the clause shall stand part of the Bill.
Overall, the role that Europe has played in shaping our current body of equality legislation has been positive. Indeed, much of the relevant European law is based on legislation that was previously in place domestically. However, although it is based on similar concepts and structures, European law has from time to time required us to amend or extend our domestic regime. Our ability to do this without the aid of primary legislation is limited by the extent of the power in Section 2(2) of the European Communities Act 1972. As the scope of EU equality law is not generally as wide as domestic equality law, this has resulted in a patchwork of protection and a lot of confusion that led to the discrimination law review-culminating in this Bill, one of the main aims of which is to simplify and harmonise the thicket of legislation that has grown up over more than 40 years.
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The harmonisation power will future-proof the Bill, so that changes required from Europe can be incorporated into domestic law without disrupting the harmonised approach we have achieved in the Bill. The Government have paid close attention to comments made by the Delegated Powers Committee about the power in its third report of the current Session. These have prompted us to bring forward amendments to which I shall turn after considering the committee's concerns.
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"Clause 196 contains an exceptionally significant Henry VIII power",
enabling the Government, when implementing an EU obligation, to extend the effect of the implementing provision beyond what is required by the obligation. Of course, I agree that this is a significant power; in fact it is vital to ensure that the Bill when enacted retains clarity and coherence. An ability to remove anomalies that may arise seems just common sense.
The committee also noted that the Government did not provide a precedent, and that the power's extent is much wider than suggested by the example given in the Explanatory Notes. For a precedent, I point to Section 260 of the Civil Partnership Act 2004, which allows Orders in Council to make similar provision outside the scope of European law to those made using Section 2(2) of the European Communities Act, where European law applies. Most of the Bill's provisions are within the scope of Section 2(2) for almost all relevant purposes, and Schedule 24 makes it clear that there are large areas of the Bill to which the power does not apply at all.
The committee was concerned that the power could be used to replicate in other strands the implementing provisions of an EU obligation which was restricted to a single strand. The power could indeed be used to copy over to the colour and nationality elements of the definition of race any provisions that may be required by European law for the rest; that can only be a positive thing. There will be times when, if we rely solely on Section 2(2), cracks will begin to appear and anomalies to creep in. Without this power, those anomalies will eventually accumulate to the disadvantage of all. However, in the light of the committee's concerns, we are seeking to place some further procedural constraints on this exercise.
Government Amendment 131A will prevent Ministers circumventing the minimum 12 weeks' consultation that must take place prior to the power's use. We now accept that any weakening of this requirement would be hard to justify in view of the committee's concerns. Amendment 131B ensures that, where the consultation results in any changes of policy, those changes must in turn be consulted on.
Amendment 134, tabled by the noble Baronesses, Lady Warsi and Lady Morris, seeks to increase the frequency with which a Minister must report to Parliament on the harmonisation power's use from five-yearly to annually. We originally opted for five-yearly reports, both because we expect this power to be used infrequently, and because when it is used full accountability will be built into the process. A requirement to report annually would be overkill. However, in response to the committee's concerns, Amendments 134ZA and 134ZB increase the frequency of ministerial reporting from every five years to every two years. We think this strikes an appropriate balance; I therefore ask the noble Baroness to withdraw her amendment-before she has even moved it, if she will forgive me.
Amendment 134ZC inserts a new clause that makes detailed provision about the making of orders under this power. It requires, in particular, the Minister to lay an explanatory document before the House alongside a draft order. This document must say why the
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Finally, I will speak to Amendments 134B and 134C, which are consequential to the substantive amendments relating to exceptions for marriage and broadcasting respectively, which the Government accepted earlier in this Committee. We do not consider that it would be appropriate for the harmonisation power to be used to affect these exceptions-hence Amendments 134B and 134C insert references to the relevant provisions into Schedule 24, putting them outside the scope of the harmonisation power. I beg to move.
Lord Hunt of Wirral: I am not sure that I need to speak to our amendments, as they have already been opposed before I have said anything. I shall only ask the noble Baroness: is the Delegated Powers and Regulatory Reform Committee now satisfied with what the Government are proposing?
Baroness Royall of Blaisdon: My Lords, I think it is fair to say that that committee is broadly satisfied. As this Committee will know, the Delegated Powers Committee does not like broad harmonisation powers, but it accepts that this is a consolidation Bill and that this is a sensible way forward.
Lord Hunt of Wirral: My Lords, it is of course not just a consolidation Bill. We will have to return to all this on Report; we do not have time now. Suffice it to say that our concern is that there are constant views that the Government are gold-plating directives that emanate from Brussels. Now they are seeking to fast-track that gold-plating. They should proceed with considerable caution down that dangerous road.
Baroness Royall of Blaisdon: My Lords, first, I understand that I misled the House; apparently, the Delegated Powers Committee does not particularly like what we are doing here. I did not seek to mislead the House. As I explained, the committee does not like broad harmonisation powers. I accept that the Government have, in the past, sought to gold-plate certain things in certain European directives. However, in dealing with the Bill in this way we are trying to ensure coherent policy-making in the future. We are trying to future-proof the Bill, but I entirely accept the concerns expressed by the noble Lord and that he will wish to return to them at a later stage.
131B: Clause 196, page 122, line 4, leave out subsections (4) and (5) and insert-
"(4) If, as a result of the consultation under subsection (3), the Minister thinks it appropriate to change the whole or part of the proposal, the Minister must carry out such further consultation with respect to the changes as the Minister thinks appropriate."
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The Deputy Chairman of Committees (Baroness Harris of Richmond): If Amendment 131B is agreed, I cannot call Amendment 132 because of pre-emption.
Amendments 132 to 134 not moved.
Amendments 134ZA and 134ZB agreed.
Clause 196, as amended, agreed.
134ZC: After Clause 196, insert the following new Clause-
(1) If, after the conclusion of the consultation required under section 196, the Minister thinks it appropriate to proceed with the making of an order under that section, the Minister must lay before Parliament-
(a) a draft of a statutory instrument containing the order, together with
(b) an explanatory document.
(2) The explanatory document must-
(a) introduce and give reasons for the harmonising provision;
(b) explain why the Minister thinks that the conditions in subsection (1) of section 196 are satisfied;
(c) give details of the consultation carried out under that section;
(d) give details of the representations received as a result of the consultation;
(e) give details of such changes as were made as a result of the representations.
(3) Where a person making representations in response to the consultation has requested the Minister not to disclose them, the Minister must not disclose them under subsection (2)(d) if, or to the extent that, to do so would (disregarding any connection with proceedings in Parliament) constitute an actionable breach of confidence.
(4) If information in representations made by a person in response to consultation under section 196 relates to another person, the Minister need not disclose the information under subsection (2)(d) if or to the extent that-
(a) the Minister thinks that the disclosure of information could adversely affect the interests of that other person, and
(b) the Minister has been unable to obtain the consent of that other person to the disclosure.
(5) The Minister may not act under subsection (1) before the end of the period of 12 weeks beginning with the day on which the consultation under section 196(3) begins.
(6) Laying a draft of a statutory instrument in accordance with subsection (1) satisfies the condition as to laying imposed by subsection (8) of section 200, in so far as that subsection applies in relation to orders under section 196."
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