Date laid: 23 October 2019
Parliamentary procedure: affirmative
These draft Regulations propose to allow opposite-sex couples to form a civil partnership in England and Wales. This status is currently limited to same-sex couples, a situation which the Supreme Court found to be incompatible with the European Convention on Human Rights in June 2018. Unlike same-sex couples, opposite-sex couples will not be able to convert their civil partnership into marriage, subject to a final decision by the Government following the evaluation of consultation responses. The intention is for the new arrangements to come into force to meet a statutory deadline of 31 December 2019. There has been public campaigning on opposite-sex civil partnerships and the House may wish to explore further the Government’s decision not to extend conversion rights to opposite-sex couples at this stage.
The Regulations are drawn to the special attention of the House on the ground that they give rise to issues of public policy likely to be of interest to the House.
1.The Government Equalities Office (GEO) has laid these Regulations with an Explanatory Memorandum (EM) and an Impact Assessment (IA). The purpose of the instrument is to enable opposite-sex couples to form a civil partnership in England and Wales, a status which is currently limited to same-sex couples.
2.The EM states that there are over three million opposite-sex couples in the UK who cohabit but choose not to marry for personal reasons, and that these couples support an estimated one million children, without enjoying the same security or legal protection as married couples or same-sex civil partners.
3.The GEO explains in the EM that the Civil Partnership Act 2004 (“the 2004 Act”) introduced civil partnerships to enable same-sex couples to formalise their relationships at a time when marriage was not available to them. The Marriage (Same Sex Couples) Act 2013 (“the 2013 Act”) subsequently gave same-sex couples the right to marry. According to the GEO, there has been a significant campaign calling for civil partnership to be extended to opposite-sex couples who may not wish to marry for personal reasons. Additionally, the Supreme Court found in June 2018 that the provisions in the 2004 Act preventing opposite-sex couples from entering into a civil partnership were incompatible with Article 14 of the European Convention on Human Rights, as the difference in treatment constituted unjustified discrimination on the grounds of sexual orientation.
4.The Government announced in October 2018 that they would change the law to extend civil partnerships to opposite-sex couples in England and Wales. Section 2 of the Civil Partnerships, Marriages and Deaths (Registration etc) Act 2019 (“the 2019 Act”) requires the Secretary of State to make regulations to amend the 2004 Act for this purpose. During the passage of the 2019 Act through the House, it was amended to require such regulations to come into force by 31 December 2019.
5.In addition to extending civil partnerships to opposite-sex couples in England and Wales, the draft Regulations propose to:
6.The GEO says that the Scottish Government introduced a Bill in the Scottish Parliament on 1 October to allow opposite-sex civil partnership, and that in the continued absence of a Northern Ireland Executive, the Secretary of State will take forward regulations to allow opposite-sex couples civil partnerships in Northern Ireland. These regulations will be laid under the negative procedure and must be in force by 13 January 2020.
7.The GEO explains that an existing right under the 2013 Act for same-sex couples to convert their civil partnerships into marriage will not be extended to opposite-sex couples. The GEO consulted on conversion rights between 10 July and 20 August 2019 and has decided to retain the existing conversion right for same-sex couples while the evaluation of consultation responses is continuing. If the Government decide to make changes and legislate in this area, a further statutory instrument may follow in 2020.
8.The GEO acknowledges that maintaining the existing conversion right for same-sex couples while not extending it to opposite-sex couples creates a difference in treatment. The GEO sets out in the EM its view that this is compatible with the Supreme Court judgment. The GEO explains that the right to convert a civil partnership into marriage was introduced to enable same-sex couples to marry without having to dissolve their civil partnership, as marriage had been denied to them historically. According to the GEO, that same consideration does not apply to opposite-sex couples who have always been able to marry. The GEO adds that the right to convert from civil partnership to marriage continued to be available after same-sex marriage was introduced so that couples could remain in a formalised relationship if one party changed gender. The GEO also suggests that extending conversion rights to opposite-sex couples in the interim period, while consultation responses are being considered, would “risk creating uncertainty and confusion about future rights”, and that such a right may potentially be only short-term and may subsequently be withdrawn in 2020, following proper consideration of the consultation responses. Additionally, the GEO thinks that it is “highly unlikely” that opposite-sex civil partners would wish to convert a relationship formed recently while marriage was also available to them. While the Committee notes the Government’s explanation of their decision not to extend conversion rights to opposite-sex couples, this raises an issue of unequal treatment that the Joint Committee on Statutory Instruments has brought to the attention of the House and the House may wish to explore further.
9.The GEO says that while there is uncertainty regarding the take-up of opposite-sex civil partnerships, it expects between 70,000 and 75,000 such civil partnerships per year in England and Wales. The IA identifies survivors’ benefits to a partner’s private sector defined benefits occupational pension scheme as the key monetised annual recurring cost that will arise from the proposed changes and puts the total cost at £10 million over a 10-year period. The IA also expects an impact on the public sector from defined benefit public sector pension schemes and from other tax impacts and says that the GEO is working with HM Treasury, the Department for Work and Pensions and others to assess the overall impact of opposite-sex civil partnerships on public expenditure.
10.These draft Regulations propose to extend civil partnerships to opposite-sex couples, a status that is currently limited to same-sex couples. The instrument does not, however, afford opposite-sex couples the right to convert their civil partnership into marriage, a route that will remain available to same-sex couples. While the Committee notes the Government’s rationale for this decision, it raises an issue of unequal treatment which the House may wish to explore further. We draw the Regulations to the special attention of the House on the ground that they give rise to issues of public policy likely to be of interest to the House.
1 See Supreme Court case R (on the application of Steinfeld and Keidan) (Appellants) v Secretary of State for International Development (in substitution for the Home Secretary and the Education Secretary) (Respondent) .
3 See: Joint Committee on Human Rights, , (Session 2019, HC 65-iii, HL Paper 13)