Cohabitation Rights Bill [HL]

Second Reading

1.09 pm

Moved by Lord Marks of Henley-on-Thames

That the Bill be read a second time.

Lord Marks of Henley-on-Thames (LD): My Lords, more and more people now choose to live together before or instead of getting married or entering into a civil partnership. In 1996, there were fewer than 3 million people cohabiting in the United Kingdom. By 2013, the figure had almost doubled to 5.9 million. More cohabiting couples—about 38% of them—are having children. The trends are clear: people are choosing to live together and often to build families together as an alternative to getting married or entering into civil partnerships. That is a clear life choice that they make, and it is mark of a free society that we accept and indeed embrace our freedom to choose how we live and with whom we live. This Bill is designed to right injustices that have long bedevilled our law and to ensure that people who live together will not be subjected to an unfair and invidious disadvantage by so doing.

There persists widespread confusion among the public about the legal status of cohabitants. In a British Social Attitudes survey in 2006, no less than 58% of respondents thought that cohabiting couples who split up were probably or definitely in the same position as married couples. The myth of the so-called common-law marriage is widespread—but, as your Lordships are well aware, it is just that: a myth, without any foundation in law. In 2008, a further British Social Attitudes survey found that nine out of 10 people believed that cohabitants in a long-term relationship involving children, or where career sacrifice was involved, ought to have redress on the breakdown of their relationship. Yet, at present, unless they have entered into a cohabitation agreement, the protections for couples who part are extremely limited. As to the property they live in, if it is in the name of one partner,

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the other may secure an interest only if he or she can bring a case based on the antiquated and unwieldy law of trusts by showing that joint ownership was their joint intention. The ascertainment of the parties’ shares remains difficult, even where the property is in fact in joint names. The last major decision on the issue of intention, that of the Supreme Court in 2011 in Jones v Kernott, has made the position no easier.

Minor children are entitled to support under the Child Support Act, and the children of wealthier parents under Schedule 1 to the Children Act 1989. However, support ends when the children are older. At that stage, the caring parent may be left completely unsupported and often out of a home. Cohabitants may also secure some provision on death under the Inheritance (Provision for Family and Dependants) Act 1975, which I shall refer to as the 1975 Act. That was a welcome reform made in 1995, but the provision for cohabitants is limited to maintenance and it is necessary for the surviving party to go to court to establish a claim.

However, on separation, there are no legal rights at all for the woman who has given up her career to look after her partner’s children—or their joint children—once they are older and independent. There are no rights for the woman who gives up working to keep house for her family and then does so for many years before the relationship breaks down. There is no redress for the man who has worked for years and used up his savings to help establish his partner’s business and is then left with nothing when they break up. Then again, if one partner dies without leaving a will, the other will inherit nothing as of right from the estate—not even the home they lived in together.

The Law Commission’s proposals on separation were made, after a long and detailed consultation, in 2007, and those on intestacy in 2011. They were thorough and carefully considered. As your Lordships well know, the Law Commission was set up by Parliament to recommend necessary law reforms to government. It is an entirely independent body with a stated mission: to keep the law fair, simple and modern. Despite repeated pleas from the professions and from the judiciary at all levels to implement the commission’s proposals in this area, no action has been taken.

The Bill is limited to implementing the Law Commission’s proposals made in its two reports. I make no claim to originality in presenting these proposals. My noble friend Lord Lester of Herne Hill introduced a similar Cohabitation Bill in 2008. I pay tribute to him for his vast achievements in the area of law reform, and I am delighted that he is here and able to speak in the debate today. My noble friend’s Bill went rather further than this one, because it included provision for continuing maintenance, which the Law Commission’s proposals and this Bill do not. My noble friend also introduced a Bill incorporating the Law Commission’s proposals on intestacy in 2012.

I turn first to the proposals for relief on separation. I make it clear at the outset that the Bill’s proposals do not equate cohabitation with marriage—far from it. For many would-be reformers, the Bill is for that reason a disappointment because it proposes perpetuating what they would call a two-tier system of financial

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provision, with one regime for those who marry or enter a civil partnership and another for those who do not. I do not share their view. I firmly believe that when two people commit to marriage or civil partnership, they commit to full financial interdependence—a commitment which demands that there be a comprehensive range of remedies in the event of divorce. However, when people decide to live together without taking on the obligations of marriage or civil partnership, that is their choice, and they should not have those obligations thrust on them by the state.

That does not mean that where a cohabiting relationship breaks down, there should not be a mechanism to adjust the economic impact of the relationship so as to share it more fairly between the parties. Essentially, and simplifying them to the core, the Bill’s proposals aim to address economic unfairness at the end of a relationship that has enriched one party and impoverished the other in a way that demands redress.

Scotland has a cohabitation law, and has had one similar to that proposed in the Bill since 2006. Ireland introduced similar legislation in 2010. The noble and learned Baroness, Lady Hale, our one woman Supreme Court judge—how regrettable it is that she is still the only one—said in July 2012, in a significant case under the Scottish Act in the Supreme Court called Gow v Grant:

“The main lesson from this case, as also from the research so far, is that a remedy such as this is both practicable and fair. It does not impose upon unmarried couples the responsibilities of marriage but redresses the gains and losses flowing from their relationship”.

The noble and learned Baroness concluded:

“The Act has undoubtedly achieved a lot for Scottish cohabitants and their children. English and Welsh cohabitants and their children deserve no less”.

It is not just Scotland that has similar legislation. Australia, Canada, New Zealand and many other jurisdictions have strong arrangements by statute for cohabitants who separate.

Perhaps I may describe in broad terms some of the more important provisions of the Bill. By Clause 2, cohabitants are defined as a couple who either have children and live together or who have lived together as a couple for two years. By Clause 6, the parties can by agreement opt out of the financial settlement provisions of the Bill, provided that requirements for independent legal advice and other safeguards are met. By Clause 14, there would be power in the court to vary or revoke unfair opt-out agreements. Other cohabitation agreements or deeds of trust would also be honoured. So this scheme would not be compulsory; the parties could choose to make alternative arrangements. By Clause 7(3), there would be a two-year time limit for bringing a claim following separation so that such a claim would not hang over the heads of the parties indefinitely.

Clauses 8 and 9, and Schedule 1, set out the scheme of the financial settlement proposals. The starting point is for the applicant to show “qualifying contributions” to the parties’ shared lives. These could be financial or they could be in work, in care or in kind. If, as a result of such contributions, the other party had derived and retained a benefit, or the applicant had suffered or would in the future suffer “an economic

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disadvantage”, the court would be empowered to intervene to award a financial settlement. Such an award would first reverse any retained benefit, in full or in part. If after that exercise, the applicant would still be left with an economic disadvantage, the court could order that disadvantage to be shared between the parties. The court would be required to consider discretionary factors, the welfare of any minor children of the parties being the first consideration.

The financial position of each party would of course be crucial. Conduct which it would be inequitable to disregard would be taken into account and the circumstances in which contributions were made would be important, especially where they were discouraged rather than sought by the other party. The orders that could be made would include capital orders for lump sums, property or pension-sharing but not continuing maintenance. The lump sums could be payable by instalments. It may be argued that this would encourage litigation between former cohabitants but I would expect most cases to be settled by agreement, without coming anywhere near a court. Furthermore, mediation will play a large part in resolving such cases.

I turn to the proposals on the death of a cohabitant. I will deal just with the most important provisions. Clauses 16 and 17 would enable cohabitants to insure each others’ lives and write policies for the other partner’s benefit so as to fall out of the deceased’s estate for inheritance tax purposes. Clause 19 would enable the survivor of a cohabiting couple to inherit an interest in the estate of a partner who died on an intestacy. This is an important provision. The Law Commission’s research has shown that only 17% of people who are cohabiting make a will. The other 83% are vulnerable to death and intestacy. Of course if that provision is not required by a cohabiting couple, they are free to make their own wills, just like everyone else.

In relation to the home in which parties live, research has shown that most cohabiting couples would hope and expect that their partners, surviving in the house that they shared together, would be the people to whom the house would pass on their death. Clause 20 would thus ensure that a surviving cohabitant could make a claim to the parties’ joint home. By Clauses 21 and 22, and part of Schedule 2, cohabitants’ claims under the 1975 Act would no longer be limited to claims for maintenance, as they currently are under the 1995 amendment.

The previous Administration were sympathetic to the aims of the Law Commission’s 2007 report but wanted to consider how the new law was working in Scotland. As the noble and learned Baroness, Lady Hale, made clear in Gow v Grant, it is now absolutely apparent that the law in Scotland is working well. When I asked the present Government about this in 2011, they issued a Written Statement saying that they would do nothing during the term of this Parliament. However, this Parliament is nearing its end, while the need for reform in this area becomes ever stronger.

It has been a long time since the Law Commission’s two reports, particularly the 2007 report on relationship breakdown, but the trends have not changed and the injustice has not decreased. Although the noble Baroness,

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Lady Deech, has been a formidable campaigner against these proposals, particularly when my noble friend’s Bills have been debated—I am delighted to see that she is here to make her case again today—there is a powerful body of both professional and lay opinion in favour of these reforms: most of the family judiciary; Resolution, the body that represents family solicitors and for whose strong support I am particularly grateful; the Family Law Bar; and many others, including many in the church. I am delighted to see the right reverend Prelate the Bishop of Sheffield here today to speak in this debate. I suggest that legislation is now overdue, and this Bill attempts to redress the position. I beg to move.

1.26 pm

Baroness Deech (CB): My Lords, a few months ago the Prime Minister announced that all government policies would be subject to a new family test: what impact would they have on relationship formation and breakdown? It is against those standards that I seek to assess the Bill. My conclusion is that it would reduce willingness to commit long-term and would greatly increase the stress of couple breakdown, significantly to the detriment of children.

Few of us today would argue against affording respect to all family forms. But this Bill, albeit with the best of intentions, puts a widespread choice of lifestyle—cohabitation—into lockdown. If it were to be enacted, which I sincerely hope will not come about, the outcome would be that married couples, civil partners and same-sex couples would have the free choice of union, from which they may refrain or enter, but cohabiting couples, both future and past—for the Bill has some retrospective elements, which are particularly contentious—will find that they are snared unaware in a trap of laws from which there is no escape, save for the opting-out provisions of the Bill. Almost the entire panoply of marriage law is to be lowered on to them by the Bill once they have spent two years cohabiting—two years is the average length of a cohabitation—or if they are parents of a child. People often use the phrase “bedroom tax” but, if enacted, this Bill would be the real bedroom tax: share your bedroom and you will be taxed for ever more.

Since cohabitation is so common, we are told that it must give rise to marriage-like consequences for the protection of women, although quite what that “protection” amounts to is an issue for analysis. But if the Bill is enacted, cohabitation will become as expensive and legalistic as divorce, no more attractive than marriage but bound to deter even more men from the stability that their children so badly need. It is true that some other countries have enacted recognition of cohabitation in terms of marriage law. American states, however, are rowing back from legal regimes for cohabitants. But those other countries listed by the noble Lord, Lord Marks, have already reformed their law on financial provision at the end of marriage to be less generous, less discretionary and more likely to be based on a fixed half share of matrimonial property, and they recognise nuptial agreements. It makes more sense, if any, to apply the law to cohabiting couples when it is reformed and certain, if that is what is going to

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happen, rather than when it remains as discretionary as ours. This Bill mimics existing matrimonial law in that it preserves too much judicial discretion with no rational principles except paternalism. That is why mediation may well not work. There will be a risk of blackmail behind the scenes because, without firm judicial principles for the assessment of property transfers, one of the couple will hassle the other for a settlement. Judges do not see this; they see only the cases that come to them, the tip of the iceberg.

Is this reform in the interests of children, children who we know, from studies of cohabitation, will do worse at school and only one-third of whom can expect to be living with both unmarried parents by the time they are 16? The damage to those children arises from their social situation, not the law. Cohabiting couples with children are more likely to break up than childless cohabitants or married couples, and they are less likely to conclude their cohabitation in marriage. Schedule 1 to the Children Act 1989 already provides for orders for the support of a parent, usually the mother, and the child, periodical payments, lump sums and the transfer of property. We also have the Child Maintenance Service, successor to the Child Support Agency. Getting child support from unmarried fathers has always been like getting blood from a stone, and nothing in this Bill will alter that sad fact.

The argument will be made that so-called wives who married in unrecognised Muslim ceremonies need financial support, but it is not a good thing to change our law in a significant way for everybody to accommodate Sharia law. It is not right for some couples to overlook or ignore our marriage law and then try to rely on it later when things go wrong, especially since I understand that there are provisions in Sharia law for alimony and something similar at the end of a union.

This Bill is a real vote loser. It is an attack on the liberty of two people who have refrained from marrying. Either they have good reasons not to—for example, preserving property from a previous relationship—or they are trying out the relationship before cementing it. It may well be that one of them would like to marry and the other holds back, but we do not have forced marriage in this country. We observe the human rights of privacy and respect for family life, which the provisions of this Bill ignore. Professor Cretney, a former law commissioner, has written that it is hard to understand why those cohabitants who express distaste for marriage and all its legal trappings should want the benefits of a comparable legal regime, with all the financial and emotional costs of litigation, and that it is possible that the scheme will become the instrument of exploitation and harassment. In fact, consultees to the Law Commission were finely divided on this.

Ordinary members of the public do not want this. Here are some quotes from the Guardian—please note, they are not from the Daily Mail:

“When is the state going to recognise that cohabiting couples are adults who choose to live their lives that way precisely because they don’t wish to have busybodies—either religious or state-sponsored—poking into their personal affairs?”.

“In an increasingly difficult world why make the very ordinary occasional experience of people choosing to live together for a while, as a test marriage or whatever, fraught with paranoia?”.

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“All it will do is ensure that virtually every ended relationship will end up in court, enriching family lawyers at the expense of the cohabitees themselves”.

I am sure there are plenty of openings for legal dispute in this Bill. What does it mean to live as a couple when there are so many lifestyles today? If it means a sexual relationship, the Bill should say so. Either way, a degree of inquisition is bound to follow. The Bill implies that a sexual relationship is the key to getting financial support. It is a pity that the sexless sisters who live together for decades are still not recognised as deserving of any tax breaks, an issue I have raised before.

The Bill sends a bad message to career women. Why should the mistress of a rich man get, for example, £5 million after a couple of years of childless cohabitation? Why should two students who shared a flat find themselves exposed to legal action? Why should a woman with a good career, who is deserted by the man she had hoped would marry her, face demands from him for her money? Cohabitants know that they are not married, and they have chosen to draw back from it. There is nothing to stop them marrying, as there was years ago when divorce was difficult. If they are dissatisfied with insecurity, why not pop down to the register office and marry to get rights? Couples may be trying out a relationship and we should not impose the penalties of a failed marriage on those who thought their experimentation would preserve them from precisely that fate.

What is it about cohabitation that must be recognised? Nothing has yet replaced the traditional symbols of legal commitment: the ring, the ceremony, the contract. Today there is a general practice of not committing—relationships, rules and futures are ambiguous. A University of Denver study demonstrated that men see the moment of marriage, not cohabitation, as the assumption of responsibility, whereas women see attachment and living together as more binding. Therefore, there is an inherent clash of perspectives. Less than 4% of cohabitations last 10 years or more, and the more frequent and longer the cohabitations, the more likely the subsequent divorce, which all adds up to a bad story for children.

The intestacy provisions in the Bill are not as detrimental to the family as were those in the earlier Bill on this in 2012, the Inheritance (Cohabitants) Bill. Nevertheless, I cannot see the point of fresh provisions when cohabitants already have the capacity to bring claims under the Inheritance (Provision for Family and Dependants) Act 1975, as relaxed by the Law Reform (Succession) Act 1995 to allow a cohabitant of two years’ status to claim. Such claims, pitting the surviving cohabitant against the blood family, can be bitter, expensive and protracted.

In sum, it is illiberal to impose on couples an intrusive contractual obligation, not freely entered into, and it will encourage inherently more unstable relationships. We should encourage contracts between those who share property. The opt-out provisions of the Bill would be a good model if they were opt-in in the alternative; in other words, this proposed law should apply only if the couple had read it and signed up to accepting it. Otherwise, we should retain a

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corner of freedom where couples may escape family law, with all its difficulties, uncertainty and crippling expense and intrusion.

Cohabitation is not marriage, now or historically. The research by my former pupil, Professor Probert, has shown that there never was a period in the past when common law marriage was recognised. People need the freedom to try alternative forms of relationship, not to have one imposed on them. No more bedroom taxes.

1.38 pm

Lord Farmer (Con): My Lords, I thank the noble Lord, Lord Marks, for giving me the opportunity to speak on this important issue—but not, I should make clear, because I welcome the introduction of this Private Member’s Bill. On the contrary, I find the whole concept of validating cohabitation deeply problematic. I want to lay out my concerns in terms of the economic implications of high cohabitation rates and the concomitant instability of the relationships that these engender; the benefits of marriage; and, finally, the need to look beyond accommodating the lifestyle choices of adults and see the repercussions for the weak and vulnerable, most notably the effects on children.

I am sincerely troubled by the reintroduction of the Bill, which, as we have heard this afternoon, echoes that of the noble Lord, Lord Lester, in the 2008-09 Session. The doubling of the number of cohabiting couples between 1996 and 2013 should be seen not as a reason to give them more rights but, rather, as a reason to sound an alarm about the negative effects of these very high rates and the correlation with markedly lower marriage rates.

Many of my days have been spent in the metal markets, so I will start with a simple economic argument against the implication of this Bill, which is the encouragement of cohabitation. This costs the country a great deal of money because of the far greater instability of this living arrangement in comparison with marriage. The annual price tag for the UK’s particularly high levels of family breakdown is a staggering £46 billion per annum. Single parent family formation is increasing at the same time as the UK’s crude divorce rates are falling, because it is far more likely to occur when children are born outside marriage. Parents raising children on their own—92% of whom are women—will struggle to provide adequately for their children, both financially and in terms of the time and attention they need to thrive. Indeed, £9 billion of the costs of family breakdown is accounted for by the additional tax credits that we provide to make up for the lack of a second breadwinner, usually a father.

Marriage, on the other hand, not only saves but also makes the country money. The interdependence within families that it engenders is an asset to the nation because those who marry, and their children, are far less likely to become dependent on the state. Also, research across many countries points to a marriage premium in wages. Employers value the behaviours and attitudes that tend to be associated with marriage. Employees who are married tend to progress further and therefore be paid more than those who are not—and, accordingly, pay more taxes.

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The United States Centers for Disease Control describes how the well-being of children rests on their experiencing safe, stable and nurturing relationships. Yet they are far more likely to see their parents break up if they were not married when they were born and to be caught up in the unpleasantness this usually entails, as a result of which 1 million children have no meaningful contact with their father.

The Millennium Cohort Study found that only 9% of married couples have split up by the time their child is five, compared with 26% of cohabiting couples. Many social scientists explain this relative instability in terms of selection effects; those who are more disposed towards entering the married state are also those more likely to be able to sustain a relationship. However, I want to take a moment to explain the inadequacy of this analysis.

First, the same study found that cohabitating parents are at least twice as unstable as their married counterparts, regardless of the income group they come from or their level of education. Secondly, researchers from the respected Institute of Fiscal Studies were able to eliminate the difference in stability between married and cohabiting parents in their regression model only by controlling for relationship quality and the effect of either an unexpected or early birth. They admitted that these variables might in fact be what statisticians refer to as endogenous regressors. In other words, by trying to isolate the effect of marriage per se on stability, they controlled for factors which might themselves be affected by the thing they were trying to measure. Although they decided to take the risk that these factors were not affected by marriage, this is, in fact, the bigger leap of faith.

I shall consider each of these factors in turn. When two people stand together in public and say, “You are the one for me, above all others, whether rich or poor, in sickness and in health, till death us do part”, it is implausible that this has no effect on the quality of the relationship. We of all people believe in the importance of taking vows. Surely I was not the first of your Lordships to feel great emotion when I pledged allegiance to our Sovereign in this very House.

I made my own marriage vows a number of decades ago. Yet when I attend weddings now, it is precisely because of all the water that has gone under our own particular bridge that I gasp at the public commitment being made by two frail human beings. These awesome public promises of lifelong love and faithfulness act like essential glue, now perhaps more than ever, precisely because people in this country are no longer quite so obliged to make them. So we simply cannot encourage these default arrangements by imposing rights on couples who have not made these deliberate and intentional pledges, which are pregnant with such meaning.

Similarly, turning to the effect of either an unexpected or early birth, it is very hard to believe that the parents’ relationship status has no bearing on the likelihood that they will withstand the profound shock to their relationship that either of these events can entail. Again, if a couple have set their course from the outset, deciding to build a family together rather than sliding into parenthood, that cannot but help to strengthen their resolve.

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To those who argue that adults’ lifestyle choices have to be respected and protected in law, the obvious rejoinder is that this ignores the repercussions for those who are weak and vulnerable in society, particularly the young and the old and those living in our poorest communities.

Thanks to journalists such as Fraser Nelson and others, our country is beginning to wake up to the uncomfortable realities of the marriage gap—namely, those who are more affluent are also more likely to be married and their children able to benefit from the greater reserves of time, social capital and earning power associated with having two biological parents at home.

Income-poor children, in contrast, are also much more likely to be relationally poor. Obviously, there are exceptions, and strong, close-knit extended families and communities can exist in any income bracket, but the greater informality of relationships that is such a salient feature on our poorest estates is adding to all their other disadvantages. It is a tragedy that many do not even know who their father is. Marriage ties men in, in a far more effective way than does cohabitation.

To reiterate, we should not downplay the inherent and intense struggle that is single parenthood. When I spoke recently in a debate in this House about the challenges of the digital age for families, I pointed out that keeping one step ahead of children’s internet access becomes almost impossible when there is only one person to do the surveillance.

To summarise, it would be far more beneficial to society, both economically and in order to rebuild the social fabric, to encourage marriage rather than cohabitation. We must reinforce the importance of explicit commitment rather than blur its lines by imposing on people rights and obligations they have not freely signed up to.

In conclusion, your Lordships might be surprised to know that Janet Street-Porter agrees with me on marriage. In her recent article, she questions the cult of “me” that began to take off in the 1960s and 1970s and says that politicians not willing to defend marriage are self-centred, on the grounds that, again in her words:

“Surely it’s good for most kids to grow up in stable surroundings”.

Other iconoclasts, such as Rod Liddle, are also beginning to write movingly about the effects of family breakdown, such as the greater likelihood that children affected by it will fail at school, or end up unemployed or in low-paid work or even with severe mental health problems. I would therefore recommend that this Government take note and show their concern for children’s welfare. First, they should increase the available cash benefit of transferable tax allowances for married couples, particularly those with young children.

Secondly, I am encouraged that this Government have set up a task force to improve child and adolescent mental health services. However, given the strong correlation between the prevalence of poor mental health among young people and their exposure to family fracture, surely tackling these root causes is just as important. So I propose today that all party manifestos include a commitment to launch a family stability task force. The commencement of its work should immediately

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follow the general election. For all the reasons I have outlined, strengthening marriage should be its overriding objective.

1.50 pm

The Lord Bishop of Sheffield: My Lords, I welcome the opportunity to contribute to this debate.

From these Benches, we recognise the good intentions of the Bill. We recognise the desires to protect cohabitees in vulnerable situations and to protect children from hardship. As has been recognised, there are gaps in the law that can lead to significant financial vulnerability or disadvantage when a cohabiting relationship ends, due to either separation or the death of a partner. However, the Bill goes beyond those provisions and creates something of an opt-in blanket provision for cohabiting couples, with the very low threshold for cohabitation of a continuous period of two years as set out in Clause 2(2)(d). As we have heard, the institution of marriage is recognised in our nation and throughout the world as the bedrock of family relationships and of our wider society. Marriage brings social and economic benefits beyond the family or couple concerned, as has been described.

Like all clergy, it has been my privilege to preside at a large number of marriages over the years. The intentions of a Christian marriage are set out in the preface to the marriage service. The couple and the congregation are reminded that marriage should not be undertaken carelessly, lightly or selfishly but reverently, responsibly and after serious thought. Before witnesses the couple give their consent and make solemn vows and promises. They exchange rings and sign their names in a register. They are declared to be husband and wife, in a moment of great drama.

Marriage is therefore a public act of commitment, both a private and a public good. Rights and responsibilities are held together. The state offers protection in law to both parties and to their children once that commitment has been made. Civil partnerships offer a similar opportunity for public commitment and legal rights within that relationship. Both lawmakers and the church should be doing more to promote strong, sustainable and resilient marriages. The Church of England has recently played its part through a national weddings project.

One of the key areas for development by all, including government, is better communication by all parties of the legal protections afforded by marriage and civil partnerships, and the lack of rights afforded to those who cohabit. As the noble Lord, Lord Marks, said, there is widespread confusion. However, the answer to that confusion may be not legislation but education. One of the dangers of the present proposal is that it creates a quasi-legal matrimonial structure based on an arbitrary length of time of cohabitation—a concept which is itself very hard to define and has all kinds of unforeseen consequences, as outlined by the noble Baroness, Lady Deech. There are inequities and hardships, particularly for children, which sometimes result from the end of a cohabiting relationship. We urge that these be addressed where necessary on a case-by-case basis rather than through this kind of blanket provision.

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1.54 pm

Baroness Butler-Sloss (CB): My Lords, it is perhaps time for someone to speak in support of the Bill. I congratulate the noble Lord, Lord Marks, on bringing it forward. Given the atmosphere that has so far been engendered since he spoke, it was brave of him to do so. I should like noble Lords to know that I have been married for 56 years. I was married in church and am a not-necessarily very good but practising Anglican. I am also a patron of the Marriage Foundation and strongly support marriage. However, I do not see the Bill as an attack on marriage.

One of the important things that has not so far been referred to is that marriage requires the consent of both parties, of an age and ability to make that consent. The freedom that is talked about is very often a freedom for one cohabitant but a sentence for the other, who is left on an inadequate income to cope with the children. Although the noble Baroness, Lady Deech, talked about the Children Act 1989 providing, where appropriate, some help for the mother or father of children, that goes only to the age of 18. I profoundly disagree with the noble Baroness, Lady Deech, the noble Lord, Lord Farmer, and, to some extent at least, with the right reverend Prelate.

It is important to remember that there is a major detriment to children from the parting of any couple. In my view, the detriment is as much from the parting of a couple who are not married as a couple who are, and, as I have already said, there is the added detriment that the mother may not have very much money and may not be able to get much from the father.

I do not see “the panoply of family law” as an appropriate phrase for the very modest proposals that the noble Lord, Lord Marks, has put forward, particularly in Clause 8 of the Bill. These are modest proposals: you have to show either a benefit acquired or an economic detriment. I wonder whether two years is right; I would have thought this more likely to be an economic detriment over a much longer period. If the Bill went forward—as I fear it may not, but I would like to see it do so—I would be likely to table an amendment that would require a rather longer period of cohabitation. However, that is perhaps a minor thing compared with the good that I think the Bill would do.

This modest adjustment on the economic disadvantage would affect two groups of people, about whom I would like to speak briefly. The first has been referred to: generally it is the woman, but could be the man, who has been living with the other partner sometimes for 25 or 30 years. I was a family judge; I saw these cases. That woman very often either did not have a job because her partner was well-to-do and wanted her to stay at home, or she had a modest job that was not compatible with her considerable abilities. When she is left by that man, who, after 25 or 30 years, looks for a younger woman—that is quite a usual situation to happen for those whose relationships continue beyond the rather shorter period of many—she is absolutely stuck. She has no house because the house is very often in his name and she did not suggest that it should be in both names. That is particularly the case with older women; I suspect that younger women are

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savvier about this than women in their fifties and sixties. They are left on their own with the children growing up; they are not required to have maintenance; they are homeless and without a proper job, and they have to find something to be able to keep themselves, or live off benefits. Of course, they also have no pension.

The other group—which was briefly referred to by the noble Baroness, Lady Deech, I thought in a rather unfair way—are the women in this country who are Muslim and who marry under Sharia law. Many of them have little English and most of them have no knowledge whatever of English law. Recently I went to the London-based Islamic Sharia Council. Its representatives said that they spend a lot of time trying to help these women. They have married under Sharia law without any knowledge of the fact that there should be a registration of that marriage by a registrar at the registry office. They are completely stuck because they are not married. Sharia law is not the law of the land. It is all very well for the noble Baroness, Lady Deech, to say that the Sharia court can make a money payment for the Muslim wife, but that has absolutely no position in English law. If the man chooses not to pay, there are no enforcement proceedings in the Sharia court—quite rightly, in my view, because the English court should be dealing with English people and English financial matters that relate to a couple. However, in no way can one say that the Sharia court can do anything very useful.

If the parties have not yet separated, the London Sharia council offers mediation, but I heard many sad stories of women in this country who are either English or living with someone they are permitted to be with under our immigration laws and who, as I say, are completely stuck. That is the second group. The fact that they are a minority group and that they are Muslim women should not lead us to say that they should be less regarded and less interest taken in them. They are being equally unfairly treated under our English law.

Perhaps I may add that these women are unlike the first group where the noble Baroness, Lady Deech, says that both sides have the right to suggest marriage, but they both choose not to. Perhaps I have not said this, but I meant to do so. Quite often one half of the couple does want to marry, but the other half does not. You cannot force a marriage. Again, regarding the woman, if she loves the man and has had children by him, what is she to do? Should she leave him and become a single mother, or should she stay with him, hoping that the relationship will continue? However, she lives in fear that when it ends, she will not have any of the rights, however limited, that this Bill would provide.

I also want to mention that support after death on intestacy is an excellent measure for the reasons that have already been given. So, as the first voice in support of the noble Lord, Lord Marks, I would like to see the Bill go further and for the House to reflect on the fact that it is not all one way. There are women and some men out there who are seriously disadvantaged in a financial way. We cannot brush that aside and say that it does not matter. It is actually wrong and something should be done.

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2.03 pm

Lord Lester of Herne Hill (LD): My Lords, it is an enormous pleasure to follow the noble and learned Baroness, Lady Butler-Sloss, who knows far more about this subject than I could hope to learn and speaks with great authority as, among other things, a former senior family judge. Like her, I should say straightaway that I am married. I have been married for 42 years and my wife has put up with me throughout that time. I am a very strong supporter of marriage. If I thought that this Bill would deter people from marrying, I would oppose it, and if I thought that it would coerce people into cohabiting relationships, I would find that inappropriate for the state. It does no such thing.

I should begin by expressing my gratitude to my noble friend Lord Marks of Henley-on-Thames for introducing a Bill that is more modest than mine, except in relation to a two-year rather than a five-year period. As I say, in other respects it is more modest and probably more realistic and in accordance with what the Law Commission has recommended. We have to live a very long time and we have to be very patient to achieve social reform in this country. Governments lack the imagination and energy to do it themselves, so we have to stimulate them, unfortunately, with Private Members’ Bills—or perhaps fortunately, since otherwise nothing would happen.

My noble friend Lord Marks got history slightly wrong. The first time I engaged with this was in 2002 at Second Reading of my Civil Partnerships Bill. In that Bill, I provided for opposite-sex couples as well as same-sex couples to be able to enter into civil partnerships. I did that because I was advised to do so by Stonewall, which thought that it might make the Bill more acceptable. Curiously, there was complete agreement about the need for gay and lesbian couples to be civil partners, but some of the more conservative and orthodox Bishops opposed the stuff about opposite-sex couples because they thought that it would threaten marriage. It does seem to worry people but there is no evidence from any country, including this country, that the existence of civil partnership schemes, as in Ireland or something more modest such as my noble friend’s Bill, in any way discourages marriage.

On the contrary, as Resolution has pointed out in its submissions and as the Royal Commission has observed, the evidence is that it does not in any way discourage marriage. It provides a safety net in order that, instead of the state having to bail out through public finance the consequences of irresponsible men abandoning the women and children they have been involved with and putting the women—the mother—on social security, it makes the bad men pay instead of us as taxpayers, which I hope that the noble Lord, Lord Farmer, understands. If one looks at this Bill through the eyes of an economist or someone concerned with money, the effect is to transfer some of the burden away from the state on to irresponsible common-law husbands and fathers.

The noble Baroness, Lady Deech, is the most doughty, indefatigable campaigner against everything that I have just said. I hope she will not mind my saying that, if I put in the scales her views and the views of the Law

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Commission, the noble and learned Baroness, Lady Butler-Sloss, the Supreme Court of the United Kingdom and Resolution, they and their evidence seem to me to be more persuasive.

Baroness Deech: Perhaps the noble Lord will allow me an intervention. On one side of the scales we have lawyers, not the public. The consultees who responded to the Law Commission who were members of the public were largely against this. Even the Supreme Court has a variety of views. On my side of the scales, I offer the public.

Lord Lester of Herne Hill: I am grateful for the intervention, but it does not match the facts. Resolution, for example, indicated what it called,

“strong public support for change: almost 90% think that a cohabiting partner should have a right to financial provision on separation if the relationship has been either long-term, involved children, or has involved prioritising one partner’s career over the other’s”.

It gives other evidence as well, in which I am sure the noble Baroness would be interested.

Going back to the judiciary and the Supreme Court, my noble friend Lord Marks referred to the noble and learned Baroness, Lady Hale. Although she is outstanding in all respects, what was impressive about the Gow case was that the three English members of the Supreme Court—Lord Carnwath, Lord Wilson and the noble and learned Baroness, Lady Hale—all said the same thing. They all referred to Professor Elizabeth Cooke, the Law Commissioner who leads the commission’s work on this. They quoted her as saying:

“‘We hope that implementation will not be delayed beyond the early days of the next Parliament, in view of the hardship and injustice caused by the current law. The prevalence of cohabitation, and of the birth of children to couples who live together, means that the need for reform of the law can only become more pressing over time’”.

The other two members of the Supreme Court were Scots. Since it was a Scottish case, they dealt with the Scottish issues. However, these were the three English Supreme Court judges speaking as one. They said:

“As Prof Cooke also pointed out, the ‘existing law is uncertain and expensive to apply and … often gives rise to results that are unjust’ ... There was no need to wait for experience north of the border to make the case for reform”.

I know perfectly well, because the coalition Government have said so, that they have no intention of doing anything about this during the lifetime of this Government. I also know perfectly well that the Conservative part of the coalition is deeply opposed to such a measure because it is considered to undermine marriage in exactly the way that the right reverend Prelate was worrying about. I repeat that there is no evidence whatever for that. I think that having a modest safety net, which is all that this Bill is, is better than saying to couples who do not understand the law or understand the limits of being in a so-called common law marriage, “It is better to marry than to burn”. That was said by St Paul, but I do not regard it as a guiding principle for legislation.

This being Liberal Democrat core policy, I can only say that I am delighted to await the views of the Official Opposition on this, as the only hope that I can

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see for such a measure being adopted is a change of government. It will not happen under a Conservative Government and it probably will not happen under a Conservative coalition Government; it can happen only if there is a Labour Government or a Labour coalition Government. I am sorry that that is the position because I would have hoped that the issue could transcend party politics. I am sure that there must be some within the Conservative Party who understand that this is a conservative measure doing limited justice to a very vulnerable group.

Baroness Wilcox (Con): My Lords, I am only intervening here to make sure that I understand what is going on, having heard the noble Lord’s expectation that the Labour Party is likely to take this through. If I remember correctly, when I was on the opposition Benches speaking for my side on the Civil Partnership Bill and we discussed this matter, the Labour Party, which was putting the Civil Partnership Bill through, did not agree with this.

Lord Lester of Herne Hill: That is absolutely right, but it was not this measure; it was civil partnership applying to both kinds of couples. The Government did not agree with that. I tried to press them and I failed. These provisions—

Baroness Wilcox: My Lords—

Lord Lester of Herne Hill: Perhaps I may just finish. These provisions relate not to civil partnership but to limited cohabitation rights. During the lifetime of the Labour Government, we discussed my Bill and it was indicated to me by Labour that the Bill had come very late in the Session and was therefore unrealistic as a measure at that time.

Baroness Wilcox: I was not referring to the Bill that the noble Lord was trying to put through. I was referring to the Civil Partnership Bill, in which the cohabitation question had come up. At that time, the Labour Party had said no. It then said no to you when it said that there was only a small amount of time and it could not do it. But that is twice Labour has said no, so before the noble Lord tells the House that it would be only under a Labour Government that this would come through, I suggest that he votes for and returns to the side that he came from in the first place.

Lord Lester of Herne Hill: I am grateful for the advice about how I should vote. Since I will not have a vote, it does not make much difference.

I want to say something about British Muslims. It is a very important subject. There are 2.7 million British Muslims, I believe, in this country. There are 300,000 British Jews in this country. Because of the injustice of British Jewish orthodoxy about the so-called chained wives, I and others introduced a Private Member’s Bill, which was supported by the noble and learned Lord, Lord Mackay of Clashfern, to enable an injustice done to a very small number of orthodox Jewish women to be remedied. How did we—the noble and

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learned Lord, Lord Mackay, and the rest of us—do it? We did it by saying to orthodox Jewish men, “If you want to leave your wife for somebody else without getting a get”—a written consent—“you will not be able to get a civil divorce and you will therefore not be able to remarry”. We put that in a Bill because the Chief Rabbi and a small number of Jewish victims needed it.

I was then told that my Bill was discriminatory because we did not give the same benefit to Muslims, so we amended it to give the same benefit to Muslims if they asked for it to be applied to them. The male-dominated hierarchy of British Muslims did not do so and the position is exactly as the noble and learned Baroness, Lady Butler-Sloss, said: many Muslim women are now extremely vulnerable because they do not have registered civil marriages; instead, they have unsatisfactory arrangements that give them no protection if the men treat them very badly. I am not suggesting that the whole of this Bill is designed to deal with that—not at all—but I am suggesting that it is not something that we can ignore on the grounds that this is a small minority, if that is what the noble Baroness, Lady Deech, meant to say.

Baroness Deech: My Lords, I think that is a rather unfair comparison. Jewish marriages are carried out according to the law of this land. In fact, as far as I understand it, the Jewish orthodoxy insists that a couple get married according to the law of this land. I disapprove of the way men use get just as much as the noble Lord does. That provision was only to try to put pressure on the men to give a get, and it does not necessarily work. What we are talking about is people complying—at least, they ought to comply—with the law of this land. We ought to be encouraging, as a matter of integration and the rule of law, that Muslim marriages are carried out according to the law of this land. That is what Jewish marriages do. They are registered civilly, like any other—100% kosher. Muslim marriages should not be allowed to escape under the net. We must help people by insisting somehow that they get married properly.

Lord Lester of Herne Hill: I do not disagree with that as an aim, but I think I am more in favour of choice than the noble Baroness. The thing about the Bill—and about Jewish marriage law—is to encourage choice and protect vulnerable people. This does not force people into cohabitation. It does not force people into marriage. It does not force Muslims into having to register their marriages as civil marriages. It does not do any of those things—it simply provides a basic safety net, and that safety net should apply to everyone, including British Muslims. I am sure that is common ground.

2.19 pm

Baroness Thornton (Lab): My Lords, it is a great pleasure to follow the noble Lord, Lord Lester, and the noble and learned Baroness, Lady Butler-Sloss. I congratulate other noble Lords who have spoken in this debate, although I have to confess that I had a few moments of same-sex marriage déjà-vu, particularly

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during the remarks of the noble Baroness, Lady Deech, and the noble Lord, Lord Farmer. I congratulate also the noble Lord, Lord Marks, on bringing forward the Bill on behalf of the rights of cohabiting couples and on his comprehensive description of it.

As noble Lords have said, in its publication, Families and Households, 2013, the Office for National Statistics published data on the estimated number of cohabiting couples and noted:

“The number of opposite sex cohabiting couple families has increased significantly, from 2.2 million in 2003 to 2.9 million in 2013”.

As noble Lords have said, this issue goes back to July 2007, when the Law Commission published a report on cohabitation. It focused on people who were living together as a couple but were unmarried, or who had not formed a civil partnership. The report made recommendations concerning the law in relation to cohabitants’ property and finances. The noble Lord, Lord Lester, picked this up—as he put it, he stimulates Governments—and introduced his Private Member’s Bill the following year. It did not make progress at the time, although the then Government were very sympathetic and, indeed, we on these Benches still are.

In its 2007 report, the Law Commission recommended reform and described the current law relating to cohabitation as,

“unsatisfactory … complex, uncertain, expensive to rely on and, as it was not designed for family circumstances, often gives rise to outcomes that are unjust”.

Members of the judiciary have added their voice for change in recent years, with Lord Justice Wall saying in 2011:

“I am in favour of cohabitees having rights because of the injustice of the present situation”.

Noble Lords are right to say that it is of concern that surveys show that more than half of those who cohabit still believe in the myth of common law marriage, assuming that when they split they have automatic rights similar to those available on divorce, even though I understand that this concept has not existed since 1753.

The harsh reality under current English law is that unmarried couples have no financial rights for themselves arising from their relationship, be it long or short and whether or not they have children together. Unless the home is jointly owned, it can be difficult as well as inordinately costly for cohabitants to argue that they have a share in the other’s property. Claims of this nature are determined by reference to complex and esoteric principles of trust law. Financial provision for children will inevitably be limited in duration and, unless the paying parent is very wealthy, limited in amount, too. I say to the noble Baroness, Lady Deech, and the noble Lord, Lord Farmer, that their remarks say, “Tough”. I do not think that it is good enough to say, “Tough”, to those children.

I appreciate that the Bill is based on the Law Commission’s recommendations for reform made in 2007. Under those proposals, financial claims by cohabitants on separation would be more limited in scope than those available to their married counterparts on divorce. The objective would be to redress the economic disadvantage suffered as a result of the

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relationship—for example, giving up a career to have children—or to rebalance the retention of a benefit from the relationship by the other party, such as a contribution by one towards the other’s property. The Law Commission’s subsequent report in 2011 proposed reform of intestacy law to enable provision to be made for the survivor in the event of death of the other cohabitant. Very sensibly, the noble Lord, Lord Marks, has put those two together.

These proposals for reform are not pioneering. Australia introduced cohabitation legislation more than 25 years ago and other European countries also offer protection to their cohabitees, with recent notable additions to the list being Scotland and Ireland. However, as has already been said, in September 2011, four years after the Law Commission’s 2007 report, there was a Written Ministerial Statement that there would be no action taken by the Government in this Parliament to implement the Law Commission’s proposals.

As has been said, reform of the law relating to cohabitation enjoys widespread judicial support. The cohabitation law in Scotland is working very well. Ireland introduced similar legislation in 2010. Of the Scottish legislation, the noble and learned Baroness, Lady Hale, quoted researchers as saying:

“‘The Act has undoubtedly achieved a lot for Scottish cohabitants and their children’”.

She then said:

“English and Welsh cohabitants and their children deserve no less”.

I think that right-thinking people would agree that the time has come to take up the Law Commission’s proposals on separation, consider a way forward and stop kicking this into the long grass. It is for Parliament to determine what proposals it will implement when the Law Commission reports, but the point of having a Law Commission is to achieve reform in the law, and this law is clearly in need of reform.

Both noble Lords who have spoken from the Liberal Democrat Benches are passionate advocates of this reform. I wondered whether they might not have tried to get it into the coalition agreement. The Liberal Democrats have been part of this Government for five years. The noble Lord, Lord McNally, was number two in the Ministry of Justice. I think that Simon Hughes is the Minister responsible for this area of policy. I ask the Minister why, as the Government took such a progressive line on equal marriage, they failed to consider the impact of the lack of protection for children and partners in cohabiting relationships. They should also take a sensible line on that. It is not a threat to marriage.

Do the Government agree with the Law Commission, the Supreme Court and all the other bodies cited by the noble Lord, Lord Lester? What is the Government’s policy, or are there two policies here? It would help the House to know exactly what the Government’s policy is in this area.

2.26 pm

Lord Ashton of Hyde (Con): My Lords, I, too, thank my noble friend Lord Marks for bringing forward the Cohabitation Rights Bill and providing a further opportunity to debate this important subject. As a

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novice in these issues—and in marriage itself, with only 27 years under my belt, just over half the number of the noble and learned Baroness, Lady Butler-Sloss—I have learnt much listening to the contributions of noble Lords, many of whom have long experience of these matters and have been debating them in this House for many years. I pay tribute to my noble friend Lord Lester of Herne Hill, who introduced previous Bills on this subject.

The Bill addresses the issue of what rights individual cohabitants should have against each other. At present, when a couple break up, those rights are decided by applying a patchwork of legal rules that sometimes provide one cohabitant with an interest in the other’s property, and by the statutory intestacy and family provision rules when one of the couple dies without making a valid will.

The Bill would, in broad terms, implement recommendations in two Law Commission reports. The first is the report, Cohabitation: The Financial Consequences of Relationship Breakdown, published in July 2007. The Bill would implement most of the recommendations in that report. The second is the report, Intestacy and Family Provision Claims on Death, which was published in December 2011. The Bill would implement the recommendations in that report relating to cohabitants. The Government have already implemented the other recommendations in this report in the Inheritance and Trustees’ Powers Act 2014, which came into force on 1 October.

Here, I mention my noble friend Lord Lester’s comments about the way that Governments in general approach legal reform—in particular, Law Commission reforms. He will of course have realised that this Government are in fact implementing the Law Commission’s proposals under the insurance Act.

The overall effect of the Bill and the Law Commission’s recommendations in those two reports would be to create a scheme of legal rights and obligations for cohabiting couples. I should say at the outset that while the Government will not oppose the Motion to give the Bill a Second Reading, the Government have reservations about the Bill. It deals with serious personal and family issues on which very different views may be genuinely and firmly held—and, I may say, courteously debated. Today’s debate is testament to that fact, as were our previous debates on these matters. In our debate today, the numbers of speakers for and against—which is obviously not a scientific survey—were equally matched: or rather, virtually equally, given that there were seven speakers.

The Government have consistently taken the view that major changes relating to the rights of cohabitants must be fully considered. The speeches of the noble Baroness, Lady Deech, and the noble Lord, Lord Marks, alone would demonstrate the wisdom of proper consideration.

The process of consideration of the recommendations in the Law Commission’s 2007 report of course began under the previous Administration, as the noble Baroness, Lady Thornton, mentioned, but had not been concluded

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when this Government took office. This Government’s priority in family law matters has been to improve the family justice system. The detail of the work that has taken place to date is clearly set out in the Government’s report

A Brighter Future for Family Justice: a round up of what’s happened since the Family Justice Review

, published in August this year. Examples include: the introduction of the Single Family Court in April; a legal requirement for all separating couples to consider mediation before they can go to court over children and financial matters; and the introduction of a 26-week limit for care and supervision cases.

Our work to improve the family justice system continues, with current priorities including the implementation of measures to improve support for separating parents, taking forward the recent recommendations of the mediation task force and continuing to reduce the length of care cases, in line with the new statutory time limit of 26 weeks. Faced with this programme of work, we knew that we could not do justice with the resource available to the complex and far-reaching recommendations made for the reform of the law relating to cohabitants. We therefore announced in September 2011 that we would not take forward the recommendations set out in the 2007 report in this parliamentary term. We further announced in March last year that, due to the continuing priority of these family justice reforms, the recommendations contained within the 2011 report relating to inheritance rights for cohabitants would not be implemented during this Parliament.

This remains the coalition Government’s position and, as the noble Baroness, Lady Thornton, mentioned, that includes the Minister responsible for this area, my right honourable friend Simon Hughes. We do not consider that the matters raised by my noble friend’s Bill and by the Law Commission have yet been properly and fully considered to the extent that they ought to be. We therefore take the view that consideration of the question of rights for cohabitants is properly for the new Parliament. We do not think that taking forward this Bill now, in the limited time that we have in this Parliament, would be the correct approach.

Although we have not reformed the law relating to cohabitants, this does not mean that cohabitants are unable to protect their interests against the legal effect of the ending of their relationship. Cohabitants may, for example, choose the terms on which they jointly own property. This can then provide a basis for distribution on separation or death. Alternatively, cohabitants may create contracts or deeds of trust to make provision for each other. Importantly, cohabitants can also make wills, as my noble friend Lord Marks mentioned, to ensure that their property goes to the person they wish it to go to after their death. We are currently considering what steps we can take to raise awareness of the importance of making a will.

Lord Lester of Herne Hill: My noble friend the Minister said that at this stage, the Government think that further work needs to be done. What does he have in mind, given that the Law Commission has given two reports and that the matter was first raised, I think, 12 years ago? We have had all these experts

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giving their views, including Supreme Court judges. What further work is needed before the Government can reach a conclusion?

Lord Ashton of Hyde:We consider that the next Government, whoever they are, should undertake consultation and pre-legislative scrutiny to decide exactly where they want to go forward. We have not made any commitment on this matter. As far as the Bill is concerned, we do not consider that proper consideration has taken place.

It is for those reasons that, while the Government will not oppose the Motion to give the Bill a Second Reading, we have reservations about the changes to the law proposed in the Cohabitation Rights Bill. Accordingly we maintain our position, outlined in 2011 and 2013, not to support the reform of cohabitation law during this Parliament.

2.35 pm

Lord Marks of Henley-on-Thames: My Lords, I thank all noble Lords who have spoken in this interesting and serious debate, which, as the Minister said, has been conducted with great courtesy. However, I would like to respond to a number of points, particularly those made by the noble Baroness, Lady Deech, and the noble Lord, Lord Farmer, who opposed the Bill, and, to a lesser extent, to those made by the right reverend Prelate the Bishop of Sheffield, who, if I may gently chide him, recognised the injustices that were caused by the existing law on cohabitation but, frankly, opposed the measures in the Bill designed to right them.

My central position is that it is simply no answer to the injustice inherent in our arrangements at present—they were rightly described by the Minister as a patchwork, and I think he implied that they were unsatisfactory—to say that cohabiting couples could just get married. My noble friend Lord Wallace is indicating that I should speed up, so I will.

Along with almost all noble Lords who have spoken, I believe that we should support marriage. I have been a great supporter of marriage and have been married for many years, although not as long as some noble Lords who have spoken. I agree with and accept the point that this is a very public and important long-term commitment, and am in awe of all those who make it. However, we cannot deny the point that many couples simply choose not to get married, and their numbers are increasing. I say to the noble Lord, Lord Farmer, that we are not going to turn the clock back simply by refusing to help to relieve the injustice that cohabiting couples suffer—many of them unknowingly, as has been pointed out—under the present system. We are not going to persuade cohabiting couples to marry by denying relief on breakdown. While I fully support marriage, I start from the position that people should be free to make the choice to cohabit if they wish, and that if they make that choice they should at least be offered some protection by the law against unfairness.

The other point that I suggest was extremely well made by the noble and learned Baroness, Lady Butler-Sloss, was that it is not a case of couples choosing to marry; in many cases one partner, in love and wishing

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to continue the relationship, wants to get married but the other is not willing to do so. I am very grateful for the distinguished support of the noble and learned Baroness, who has more experience in this field than probably anyone else around. The position of the noble Baroness, Lady Deech, would be to tell the partner who wished to marry that she or he must leave the relationship or accept the imbalance—or, as the noble Baroness, Lady Thornton, put it succinctly, accept that the other partner can simply say: “That’s tough”. I suggest that it is entirely wrong to perpetuate a system that has as its default position the notion that the unwilling partner may take advantage of the other and, while doing so, take advantage of any children that they have together.

The further point is that the Bill does not force anyone into the Bill’s scheme for redress on separation, nor does it require inheritance to pass to the surviving partner on death. The Bill provides for a default position that would apply where couples had chosen not to make alternative arrangements. That default position is nothing like the arrangements that follow from marriage. There is no continuing obligation of maintenance, as there is on divorce. There is no division of property, as there is on divorce; so the £5 million demand by the undeserving cohabitant mentioned by the noble Baroness, Lady Deech, is simply a figment of her imagination, or at least a forensic exaggeration. The opt-out provisions in the Bill are sensible. They give couples the power to take their future into their own hands, after consideration. No doubt most who opt out would do so with the additional help and certainty of a cohabitation agreement. The requirement for legal advice in connection with opt-outs is there as a safeguard. Yes, it would cost some money, but that is to be balanced against the protection, security and avoidance of future battles that such money would buy. The overwhelming points are that there are many cases where the present lack of protection gives rise to real injustice when a relationship ends with one party in a weakened position and the other having taken substantial benefits.

The noble and learned Baroness, Lady Butler-Sloss, mentioned the period of two years which I have chosen. The Law Commission suggested a period of between two and five years and suggested that if a longer period were chosen, couples would be able to get dispensation from the court so that the minimum duration requirement in an appropriate case would go down to the two-year position. I accept that that is a perfectly workable alternative. I chose two years because two years is the average length of a cohabitation that breaks down.

The unfairness is exaggerated, as has been pointed out, by the prevailing myth that cohabitants in a long relationship are protected, when that is simply not the case. The position is even worse where children are involved, and it gets worse every year. I am very grateful to my noble friend Lord Lester for pointing out what was said in Gow v Grant about Professor Elizabeth Cooke’s views on this point. Professor Cooke has been a leading proponent of family law reform within the Law Commission and her views are worthy of respect. However, children are the innocent victims of these breakdowns. The central question is therefore

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where you draw the line between the need to protect and what the noble Baroness, Lady Deech, calls unwarranted interference by the state. This Bill draws the line by giving limited protection against injustice to long-term cohabitants and those with children as a default position while permitting parties of full capacity to opt out of the scheme if they wish.

As for provision on death, there is no need for anyone to die intestate. The remedy if couples do not want a surviving partner to inherit is to make a will. No one should forget the point, which has been made, that in the absence of provision, former cohabitants and their children tend to be forced to turn to the state for support on separation or bereavement. The noble Lord, Lord Farmer, pointed that out as a reason against supporting the Bill. I regard the opposite as the reality: the expense for the state is to be avoided. It is not only the expense for the state that is to be avoided by the provisions in the Bill, it is also the unwelcome dependence of abandoned parties on benefits, which has the effect of draining their confidence, draining hope and having a seriously damaging effect on their children. It is not compassionate to force people into state dependency and a complete lack of freedom in the name of a spurious freedom to cohabit without responsibility. This Bill places obligations on parties who part and have benefited from a relationship to offer some redress in respect of the benefit that they have gained.

I am very grateful for the support from the noble Baroness, Lady Thornton, on behalf of the opposition Benches. Unlike my noble friend Lord Lester, I do not see this so much as a party-political opportunity. I believe that there are many in the Conservative Party who support the provisions that I am proposing and that the Law Commission has proposed. Although the Minister was not enthusiastic about the Bill and thinks that a great deal of further work needs to be done, I did not sense an innate opposition to these proposals.

As it happens, I totally disagree that a great deal of further work needs to be done. I accept the position, although it was a cautious one, put by the noble and learned Baroness, Lady Scotland, when answering a Question on this matter in the previous Parliament: that the then Labour Government wished to wait until the experience in Scotland made the day a little clearer. The position now is that the Scottish legislation has worked and is working, and it has been applauded by the Supreme Court of the United Kingdom.

The Law Commission’s reports were thorough and well researched, and the position has not changed. The demand as well as the need for the Bill has increased, not reduced. I expect the Labour Party to support the Bill in accordance with what was said by the previous Government, and I am very grateful to the noble Baroness, Lady Thornton, for making that clear. I believe that, on consideration, if they form part of the next Government, Conservatives might also accept that position.

The Bill is about responsibility. It involves recognising that when people live together they take on a responsibility to consider each other, not to take advantage of each other, and at least to consider their positions in the

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event that things go wrong by separation or death. The Bill enables the law to recognise that responsibility and give some meaning to it. However, it is also about compassion. The Law Commission has recognised that millions of couples are in cohabiting relationships and need protection under the law. It is about compassion for those who do not form cohabitation agreements or write a will. The Law Commission rejects the harsh view that if those people do not marry, they must take the consequences of staying outside marriage. The Bill recognises the realities of our society and tries to address them in a balanced and compassionate way. I ask the House to give the Bill a Second Reading.

Bill read a second time and committed to a Committee of the Whole House.

House of Lords (Expulsion and Suspension) Bill [HL]


2.47 pm

Clause 1: Expulsion and suspension of members of the House of Lords

Amendment 1

Moved by Baroness Hayman

1: Clause 1, page 1, line 15, leave out subsection (4) and insert—

“(4) A resolution passed by virtue of subsection (1) must state that, in the opinion of the House of Lords, the conduct giving rise to the resolution—

(a) occurred after the coming into force of this Act, or

(b) occurred before the coming into force of this Act and was not public knowledge before that time.”

Baroness Hayman (CB): My Lords, I will speak also to Amendments 2 and 3 in my name. I hope that I will not need to detain the House for very long.

At the outset, I will record my gratitude to the Minister and his officials—and I am delighted to see the Leader of the House in her place today. There have been a number of useful conversations—certainly useful from my point of view—which I hope have allowed us to end up with drafting in the Bill that meets the need for a more robust sanctions regime for the House but which also takes into account the necessity for this to be fair and balanced.

I also reiterate what I said about the Bill at Second Reading. This is an enabling Bill. The House will have the opportunity, when drafting standing orders under the Bill, to look very carefully at the processes that it wishes to put into place, were there to be, first, an investigations, then a report, and then a Motion in the House to bring sanctions against a Member under the terms of the Bill. So there are plenty of opportunities for ensuring that we get those processes absolutely right—but the original problem remains, unless we pass this Bill.

I turn to Amendment 1. In Committee, we debated and passed an amendment that dealt with the issue of retrospectivity in a blanket way. Many noble Lords would have been concerned that we could run the risk of double jeopardy and of reopening issues of conduct that had already been through the disciplinary processes

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of the House and been adjudicated on. However, there was a concern that, in so doing, we should not tie the hands of the House in circumstances where, for example, wrongdoing occurred today but did not come to public notice until after the passage of this Bill. We did not want to be left in the position of having no sanctions regime available at all to the House.

I have therefore taken the wording in the 2012 House of Lords Reform Bill, which had to consider exactly the same issues of retrospectivity. In this amendment, we would put those provisions into my Bill and ensure that any conduct that gave rise to proceedings under this Bill had either to take place after the Bill’s passage or to deal with issues that preceded the Bill’s coming into force but were not in any way in the public domain. That was considered to be an appropriate approach in the Bill on major House of Lords reform that did not proceed, and I hope that it will be considered appropriate in this Bill.

The other two amendments are of a technical nature. I am particularly grateful for the conversations that I had with officials, because I am not sure that I would have got there myself in understanding, in Amendment 2, the need to ensure that the interaction between the entitlement to receive the writ of summons, which is obviously a very important issue and one that stopped the House in the past being able to suspend Members beyond the lifetime of a single Parliament, and the House of Lords Reform Act 2014 should be made clear. Amendment 2, I am reliably informed, achieves that end and ensures that there is no lacuna between my Bill and the Act.

Equally, I attempted in my drafting to ensure that the effects of ceasing to be a Member in the case of expulsion should be the same under these provisions as they would be for expulsion under the provisions of the 2014 Act. I believe that the wording that we now have in Amendment 3 achieves that.

I hope that, if the House is minded to approve the amendments, we have now got the Bill into a form that is watertight and acceptable to the House and that achieves the ends for which there was so much support. I think that the Leader of the House recognised that in the strength of the contributions made from all over the House at Second Reading and in Committee.

As I said at the beginning, this is not a House of Lords reform Bill. It is not called that and it is not that in any way. It does not deal with composition. It deals with our internal disciplinary processes and, in that sense, may seem very minor. However, as I have said before, it also deals with a situation that those among the general public who are aware of it already find unacceptable and that, were it to come into the spotlight because a case arose, even more of them would find totally unacceptable. In my view, this issue concerns the reputation of this House and of Parliament more widely. That is why I hope very much that the Bill will make rapid progress not just today but in another place. I beg to move.

Lord Cormack (Con): My Lords, very briefly, I thank the noble Baroness, Lady Hayman, for taking up the standard. I hope, as I know she does, that this Bill, when it becomes an Act, will never be needed.

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However, if it does not become an Act of Parliament, that would be very difficult to explain to anyone outside Parliament.

I am greatly comforted by the presence of my noble friend the Leader of the House on the Front Bench. I sincerely hope that the Bill can go through its remaining stage in this House and through another place in good time for the Dissolution of this Parliament, so that it is fully operational when we come back. There is no reason why that should not happen from the point of view of parliamentary timetables. I made that point at Second Reading and again in Committee. We are enormously indebted to the noble Baroness, Lady Hayman, as we are to the noble Lord, Lord Steel of Aikwood. The Bill perfectly dovetails with, and in effect completes, what he and Mr Dan Byles sought to do. It has my total and complete support.

Lord Mackay of Clashfern (Con): My Lords, until now we have had a regime that partly dealt with the problems that this Bill deals with. However, as the noble Baroness, Lady Hayman, explained, the statutory framework under which this House has worked hitherto did not enable us to exercise the full powers that the House would have wished to exercise in some circumstances because of the need to curtail any sentence of suspension to the period of the next issue of writs of summons. I do not think that anybody thought that was an entirely satisfactory system. On the other hand, I thought—and I think this was generally agreed—that it was the best that we could achieve without statutory intervention.

Now we have the opportunity to introduce statutory intervention. It is extremely important that from now on we should have a system that completely replaces what was in place before without the impediment involved in the previous arrangements. This Bill does exactly that, covering in full the situation where someone, unfortunately, transgresses the Code of Conduct of the House, and allows it to be properly dealt with.

I am extremely grateful to the noble Baroness, Lady Hayman, for taking this on. I am also grateful for the progress that has been made in the consideration of the Bill, which has made it, in my view, as perfect a statutory framework as we can have, while leaving the detail of what should happen to the decisions of this House through the making of Standing Orders, as the noble Baroness said. That has the important advantage that, if the initial Standing Orders prove to be somewhat in need of improvement, that improvement can be made. That is an important feature of the Bill in bringing in a completely new regime to replace the regime, with its unsatisfactory features, we hitherto have used. I hope that the Government feel—I imagine that they do—that this would be an improvement, and I hope that the Bill will speedily pass into law.

3 pm

Baroness Flather (CB): My Lords, I should like to say a few words from a selfish point of view. The last time we had three expulsions, all three, unfortunately, were Asian. The amount of backlash one received was enormous. People said, “What have you done? You have done nothing; these people have done this and

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that, and you do nothing to them”. If they were working for some company they would not be there any more. This approach is long overdue and I am really grateful to the noble Baroness, Lady Hayman, for bringing it forward. It is hard to say, “Look, there are people in this House who do not follow the rules they should follow”. They are not honourable and should not be in this House.

Lord Brown of Eaton-under-Heywood (CB): My Lords, I should like to put on record my support. I had the honour to serve as the chairman of the Conduct Sub-Committee of the Privileges and Conduct Committee. At Second Reading, I gave strong and firm support to, and welcomed, the Bill. As the noble and learned Lord, Lord Mackay, has made plain, it would fill the present, most concerning lacuna in our sanctioning powers. Again, I echo the hope that it will never be necessary to exercise these increased powers.

I welcome all the amendments. The first meets the concern expressed by the noble Lord, Lord Finkelstein, in Committee. In its original form, this provision was too narrow and confined only to what is now in proposed paragraph (a) of the amendment. As the noble Lord pointed out, it would fail, for example, to deal with someone who committed perjury in a libel case and it took four years for that perjury to be revealed. That problem is now cured by the amendment. I strongly welcome it and the other two amendments, too.

Lord Hunt of Kings Heath (Lab): My Lords, on behalf of the Opposition, I agree with the noble Baroness, Lady Flather, that this is timely and long overdue. We support all three amendments. How good it is to know that something survives from the 2012 House of Lords Reform Bill and goes forward in this Bill. We support it.

Lord Wallace of Saltaire (LD): My Lords, the important thing is to get all stages of the Bill through the House in good order. We entirely accept that the Bill is about Lords’ conduct and therefore their reputation. As such, it is a useful addition to the procedures available to the House, although—to repeat what has been said—we all hope that the powers will rarely, if ever, be needed.

The question of what happens in another place will, of course, have to be discussed. I have assurances that the Leader will be discussing that matter with

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others but, meanwhile, we welcome the clarity of these amendments. The Bill is now in good order and we should accept this as the Report stage.

Baroness Hayman: My Lords, I am extremely grateful to everyone who has spoken for their support for the amendments, which I believe have now struck the right balance, particularly on the issue of retrospectivity. I am very grateful to the Minister. He said that the important thing is to get the Bill through this House. That is an important thing. I think that the most important thing is now to get the Bill through another House. I know that the Government have made very clear that they will not stand in the way of the Bill. I hope that in willing the ends they may be able to move towards willing the means as well. I know that there has been real good faith from the Government Front Bench on this issue. I hope that we will see the fruits of that in the new year and that this small but important measure will become law before the general election.

Amendment 1 agreed.

Amendment 2

Moved by Baroness Hayman

2: After Clause 1, insert the following new Clause—

“Entitlement to receive writs of summons to attend House of Lords

In section 6 of the House of Lords Reform Act 2014 (interpretation), after subsection (2)(c) insert—

“(d) section 1(3) of the House of Lords (Expulsion and Suspension) Act 2015.””

Amendment 2 agreed.

Clause 2: Effect of ceasing to be a member

Amendment 3

Moved by Baroness Hayman

3: Clause 2, leave out Clause 2 and insert the following new Clause—

“Effect of ceasing to be a member

A person expelled in accordance with section 1 is to be treated as if that person had ceased to be a member in accordance with the House of Lords Reform Act 2014, for the purposes of section 4(2) to (8) of that Act.”

Amendment 3 agreed.

House adjourned at 3.05 pm.