House of Lords
Wednesday, 10 July 2013.
Prayers—read by the Lord Bishop of Chester.
My Lords, final data for 2010-11 show that 18,940 learners participating on an apprenticeship programme self-declared that they had dyslexia. They had a success rate of 72.6% compared to 76.4% overall. All apprenticeships are stretching and prepare individuals for sustained employment. Dyslexia should not present an insuperable barrier to those candidates who demonstrate competence and commitment in their chosen field. Access to Work and additional learning support are two possible sources of funding to help provide equipment or other assistance for apprentices with dyslexia.
I thank my noble friend for that Answer. The fact remains that dyslexia is a problem that affects people in reading and writing, that a written assessment is made at the end of an apprenticeship, and assistive technology, which is made available to those in the university sector, is not allowed to be used. Bearing that in mind, will my noble friend give me an assurance that this situation will be changed and reviewed in the immediate future?
As my noble friend knows very well, new assistive technology is advancing at a very rapid rate, with apps and packages such as Prismo, Livescribe, Dragon and others. Dyslexia affects different people in different ways. Some solutions will suit some people, while other solutions will suit others. If it would be helpful, I will ask officials to set up a meeting with stakeholders, which would include the British Dyslexia Association and the Adult Dyslexia Organisation, to help to ensure that compatibility with assistive technology is considered when tests and other assessments are developed.
Does the Minister accept that whereas developmental dyslexia is the commonest and best known of the specific learning difficulties, there are a number of other less common specific learning difficulties such as developmental dyspraxia—serious clumsiness—and developmental dyscalculia, which means difficulty in calculating and the use of numbers? Is it not the case that people with these difficulties also have special education and training needs and require just as much attention as those with dyslexia?
Yes, indeed, my Lords. There is a range of disabilities which can provide hurdles to young people embarking on apprenticeships. The National Apprenticeship Service looks at different ways of supporting diversity within apprenticeships and we recently commissioned a study from Peter Little to look at accessibility. We are implementing an action plan as a result of his report and he himself will help us to implement that.
My Lords, many schools throughout the United Kingdom encourage young boys and girls to take up apprenticeships while they are still at school. In other words, they are given day release and special training, which would help people with special needs. Will Her Majesty’s Government consider expanding this facility to as many schools as possible?
We already encourage schools to promote apprenticeships as a career path for people while they are at school, so that they will consider setting themselves up with the right sort of programmes of learning before they leave. Businesses increasingly go into schools to talk about possibilities, so there are ongoing programmes all the way through, which should help with what the noble Lord seeks to achieve.
My Lords, apprenticeships are one thing, but I am sure the Minister will agree that quite a number of young people at university are dyslexic and have other problems. Can the courses not be designed in such a way that these young people will end up with a degree rather than be frustrated and probably leave university not long after entering it?
There are a great number of students at university who are dyslexic. The universities have their own methods of dealing with them. By and large, they have well established programmes of support and assistance to ensure that dyslexic undergraduates become dyslexic graduates.
Yes, indeed. The point that the noble Lord made was about assistive technology. In my answer I said that it was developing very fast and offered to get the interested parties together to see whether we can find a way forward with that. On the subject of dyslexic apprentices, I point out that the apprentice of the year is a dyslexic woman called Emma Rogers, who gives credit to her college at Weston for having helped her through. She is a tremendous role model.
With the increasingly high profile of dyslexia and other forms of disability, it is becoming part of the teacher training programme, and teachers are very much more aware of trying to recognise the signs at an early point, when more help can be given to children, rather than, as so often happened in the past and can still happen, leaving it undiagnosed until pupils are quite advanced in the educational process. Schools have different ways of dealing with it, and by and large we get very good reports of good practice.
My Lords, I speak as the father of two dyslexic boys. My observation of dyslexia is that it often takes young people longer to find their feet in life, especially if the dyslexia is not properly diagnosed. Will the Minister confirm that there are no age restrictions on admission to apprenticeships, because it is often a bit later in life that kids who are dyslexic are ready to take up apprenticeships and the like?
The right reverend Prelate makes a very valid point. The apprenticeships we have been focusing on particularly are the ones for the younger age group. However, apprenticeships are certainly available for adults, and are being taken up in rather larger numbers by adults than they are by younger people. The possibilities are increasing for people with dyslexia to come into a very useful work-based programme of learning.
My Lords, I certainly welcome the Government’s approach to apprentices with dyslexia. However, I would like to know what the Government are doing when the apprentices become craftsmen, because apprentices will become craftsmen but will still have dyslexia. How will the Government cope with that?
In a great many practical craft areas, dyslexia is no handicap. You can see absolutely wonderful examples of craftsmanship in this country achieved by people with a whole range of disabilities. We want to promote craftsmanship in the country as much as we can.
My Lords, all our efforts have focused on securing a successful outcome at the forthcoming Geneva conference. A negotiated political settlement remains the best way in which to end the current bloodshed. The US, Russia and the UN are working intensively on the details of the conference; it is inevitable that there will be challenges, but the UN Secretary-General has stressed that the three parties are committed to convening the conference as soon as possible.
I thank the Minister for that Answer. Given the failure of the G8 summit to agree a date for the start of the Geneva 2 talks, does the Minister think on reflection that it was a mistake for the Government to spend the run-up to the G8 raising the volume on the possibility of the UK arming the Syrian rebels? Does she agree that it would be damaging for the prospects of an international peace conference if the Government were to repeat the mistake in the coming weeks and months?
The Government have consistently approached this matter by responding to the situation on the ground. I do not think that they can be criticised for actually responding to it and encouraging agreement when we think that it is possible. The countries that we are trying to get agreement between—the US and Russia, with the UN of course playing a facilitating role—are all committed to Geneva 2 and to a transitional executive authority that would be in accordance with the wishes of the Syrian people. It was right, in the run-up to the G8, to get as much agreement as possible, and it continues to be right to continue to push Russia and the US to come to an agreement to bring the coalition and the regime around the table.
My Lords, does the Minister accept that, if the international community is to have any hope of starting to resolve this dreadful situation, all parties to the conflict need to be at the negotiating table? If that is the case—and I ask this particularly in the light of the fourth Question on the Order Paper—how does she respond to the suggestion that this ought also to include Iran?
The right reverend Prelate will be aware that this question has been raised in the House before. Our view is that those parties that were party to Geneva 1 should be party to Geneva 2. The challenge that we have at this moment is to get the opposition and the regime around the table to agree a road map. Of course, if other parties can play a constructive role, that, too, would be appreciated, but the role that Iran is playing in Syria at the moment is not considered to be constructive.
Does my noble friend agree that, in addition to the importance of having Iran at the table, it will also be critical to the success of the conference to have credible members of the Assad Government there, if not President Assad himself? Moreover, the role of Hezbollah, which is often seen to be in alignment with Iran, is actually rather independent. Lebanon is a neighbour and is hugely affected by the civil war in Syria. Will she also consider, in trying to move Geneva 2 forward, whether they might invite all the key players in an open gesture so that we might get reconciliation and agreement at the end of that?
I can assure my noble friend that we are trying to do all we can to bring the parties to the table. At the moment, the challenge has been in relation to the regime. We feel that people from the regime should be credible, and should be those who can take decisions and make sure that they are subsequently effected. To try to broaden that beyond the regime at this stage is not something that we think would be constructive.
My Lords, further to my noble friend’s question, will the Minister not concede that the Syrian Government have agreed, the Russians have agreed and the Americans have agreed to participate? Did she see a report by Reuters that the leader of the Syrian National Council has said that it is holding out to get more arms and waiting until then to strengthen its negotiating position? Surely, the British Government’s policy in holding out the prospect of giving it arms is therefore counterproductive.
I have said on many occasions at this Dispatch Box and maybe should say again that no decision has been taken to arm the Syrian opposition. The noble Lord will be aware that the national coalition has just elected a new president, Ahmed Assi al-Jarba, who has made it his job, among other things—indeed, he did so before his election—to broaden the coalition to include more people within it, to make sure that he unites the coalition. He is committed to the Geneva process.
Will it be the Minister’s policy to make sure that the future housing needs of the refugees who are now in temporary provision are looked at and discussed with the relevant Governments, bearing in mind that many of those concerned cannot return to their original houses, which have been reduced to rubble?
My noble friend will be aware that the largest humanitarian appeal ever has been launched as a result of the situation in Syria. The United Kingdom has made the largest contribution it has ever made to a single humanitarian appeal—£350 million. Indeed, the Secretary of State for International Development was in Lebanon earlier this week pledging further support for Syrian refugees in Lebanon. The long-term solution is to resolve the political situation on the ground so that these people are allowed to return. There are more than 4 million people displaced within Syria and 1.7 million displaced outside it. There is no conceivable way, even as an international community, that we could meet the housing needs of that many people. The solution has to be to create the climate for them to return to their own homes.
Is the Minister aware that the reason that the Russians are reluctant to set a date, and they are reluctant, is that they want the Assad regime to regain as much control of territory as it can to strengthen its hand in negotiations? That cannot be good for Syria or anyone else in the long run, but we need to be realistic about it. There is a reluctance to set a date because the regime wants to extend its control on the land so that it can negotiate from a position of strength.
My Lords, I cannot hypothesise about the reasoning for the Russian’s position. Of course, we have different views on handling this crisis, but we have shared fundamental aims. We are both committed to ending the conflict, to stopping Syria fragmenting, to letting the Syrian people decide who governs them and to preventing the growth of violent extremism. We are hopeful that, because we are committed to the same aims, we can reach an agreement on how to get there.
Alcohol: Minimum Pricing
My Lords, the public consultation on the Government’s alcohol strategy closed on 6 February. We will publish our response in due course.
I am grateful for small mercies. Will the Minister confirm that the principal problem leading to more than 10 million people drinking excessively is the easy availability of cheap alcohol? Will he also confirm that that is still the central plank of the Government’s policy in their alcohol strategy? Secondly, when are we likely to start to see some progress on this issue, and will the Government please embrace it with the kind of enthusiasm which the previous Labour Government did when they were tackling the difficult issue of the tobacco industry and smoking? Until we take on the drink industry and some of the vested interests we will not start to see the problem resolved in the way that we need it, given the issues that arise for the health service from excessive drinking.
The noble Lord rightly focuses on the elements of the Government’s alcohol strategy that were put out to consultation. I have explained that a response to that consultation will be delivered in due course. Availability is one of many factors but to suggest that this Government have not been tackling the problem underestimates what has been achieved. The late-night levy has been introduced. The early morning alcohol restriction order, which was created under the previous Government but not commenced, has been commenced by us and we have sought to rebalance the licensing arrangements so that the ability of individuals in the vicinity to object to licences is now greatly strengthened. I totally accept what the noble Lord has said and indeed the Government’s strategy will demonstrate that.
Canada has introduced and evaluated a minimum unit price for alcohol. By introducing a 10% increase in the minimum unit price for some drinks there has been a decrease of 33% in wholly alcohol-related deaths. Given this evidence, when will the Government commit to including a minimum unit price as part of their alcohol strategy?
This is just the sort of evidence being evaluated by the Government. I accept that we also have the Scottish experience whereby the Scottish Parliament has passed legislation on this issue. That is subject to a court appeal but we are taking note of what is going on elsewhere.
My Lords, I am sure that the Government have looked at the evidence produced by the Institute of Alcohol Studies which shows that a 50p minimum unit price would reduce deaths per year by 3,000, hospital admissions by 98,000 and crime incidents by 40,000. Have the Government made any estimate of the savings to the public purse that that reduction would produce?
My Lords, there is a clear relationship between the price of alcohol and severe liver disease—we have known about that for ever—and the number of hospital admissions and deaths from liver disease are closely related to the price of alcohol. The Government can talk about it for a long time, but when will we see some action?
My Lords, for all the talk of consultation, the consultation on the alcohol strategy specifically ruled out consulting on minimum alcohol pricing. It said that the Government were committed to introducing a minimum unit price, but added:
“However, in other areas, this consultation seeks views”.
The Home Secretary said:
“We will … introduce a minimum unit price for alcohol”.
What has changed the Government’s mind? Has private lobbying forced this U-turn?
My Lords, does the noble Lord agree that the previous Government had at least 10 years in which to react to this and that the price of alcohol and alcohol pricing will do nothing other than probably damage the Government’s income? It will do nothing to achieve what we need to achieve—that, surely, is about getting in among communities.
I certainly agree with my noble friend that the price of alcohol is not the only issue at stake. Lots of local communities are taking positive action in this area. I have been to see the night-time economy in the centre of Nottingham. Street ambassadors, taxi marshals and street pastors have helped to make that area of Nottingham safe at night, which has done a lot to improve the economy of the area. There is a big role for community: it is not just a matter of the price of alcohol.
My Lords, further to the question asked by the noble Baroness, Lady Hollins, about the Canadian experience, does the Minister agree that it has reduced sales and off-sales at supermarkets and the like—the very places to which binge drinkers go to “tank up” before a night out?
My Lords, diplomatic relations between the UK and Iran are not severed, but they are at their lowest levels possible. Our respective embassies are closed, but Sweden looks after UK interests in Iran and Oman looks after Iranian interests in the UK. Until we can be confident that Iran will abide by its obligations to protect our staff and allow them to carry out their functions, we cannot have a diplomatic presence in Tehran.
I thank the Minister for that rather disappointing Answer and point out that President-elect Rouhani was not only elected by a clear majority on the first ballot of the Iranian people but had a majority of more than 12 million people over his nearest rival, the mayor of Tehran. In the past week, he has not only called for the clergy to cease to interfere in the private lives of Iranians and called upon Iranian state television and radio to address Iran’s problems much more honestly and fairly, but has also said that the young people of Iran will benefit from having clear access to the internet.
Given that, and also given that there are now thousands of young Iranians on the streets praising their new president, might we as a country not make at least some gesture, at the point at which he becomes the elected president on 3 August, which will re-open lines of contact more closely between Britain and Iran. France and other European nations are already establishing their willingness to work more closely with the new Government.
My noble friend has much more practical experience on this issue than I. Having visited the country on a number of occasions, she has seen the situation on the ground. I can assure her that we are open to an improvement in the relationship between the United Kingdom and Iran. I acknowledge that this was a predominantly peaceful election with a large turnout and that Mr Rouhani, who will be inaugurated as president in August, has described his win as “victory over extremism”.
Having said that, it is important that we see these words translated into action: there is a whole series of issues on which we want to see a positive approach from Iran. We also have to acknowledge and accept that, although the election was positive and decisive, a very large number of candidates—678—were disqualified, including all 30 of the women who wanted to stand.
The Minister’s caution is welcome to many of us in this House. In the 22 days up until 8 July—only two days ago—75 people were executed in Iran. One of those was only 15 at the time of their arrest and some of these executions were mass ones, with as many as 21 being executed at the same time. Surely the Government are right to exercise caution. The mullahs are still very much in charge, no matter who takes over as president in August.
Of course the noble Baroness is right. Supreme Leader Khamenei still has a huge amount of influence in many spheres of life in Iran. She is right to say that the human rights situation in Iran is dire. In 2012 there were reports of over 350 executions and 162 executions as of May this year. It has more journalists in prison than almost any other country. Opposition leaders remain detained in prison after two years. We have real human rights and other concerns in Iran. We are open to improving this relationship, and there have been opportunities when officials have met, such as during the E3+3 talks, but it is important, as the noble Baroness says, to remain cautious.
My Lords, would my noble friend not accept that it is precisely because of the permanent history of Iran and its human rights infractions that we should support the president just elected? He showed considerable courage in his election campaign and would be immensely supported in his undoubted wish to move away from the dark side of Iranian life if we were to restore diplomatic relations without preconditions.
I understand my noble friend’s points, but the one thing that I and most of us who have been involved in foreign policy realise is that the situation is never black or white. There are always many grey areas, as is the case here. The new president has made some positive remarks, but it is important that they are translated into action. However, I can assure my noble friend and other noble Lords that we have contact with the Iranians. For example, last year at the Heart of Asia conference, as part of the discussions on Afghanistan, the Foreign Secretary met Foreign Minister Salehi in the margins of the meeting. There are therefore opportunities for discussions to take place, even at the highest level. However, in terms of restarting diplomatic relations and having an embassy—which, let us not forget, was ransacked in 2011 and where our officials and staff came under attack—it is important that we do so cautiously.
My Lords, it is actually the turn of the Cross Benches. Perhaps we may have a quick question and a quick answer.
My Lords, all of us hope that Rouhani will prove to be more reasonable and rational than Ahmadinejad. Is it not important that nobody should have any illusions; that we should make it absolutely clear that sanctions cannot be relaxed until there is real evidence, through inspections or otherwise, that Iran is not proceeding with a nuclear weapons programme; and that, in view of the lamentable record on human rights and other matters that the noble Baroness has just set out, we should reserve even symbolic concessions on our side until the Iranian regime makes some positive move forward?
Sanctions are there for a purpose. They are targeted. They are for a specific issue and we have been careful to note that humanitarian goods are protected. However, the noble Lord is right. We have to make progress on substantive issues, and nuclear is one of them.
Financial Services (Banking Reform) Bill
The Bill was brought from the Commons, read a first time and ordered to be printed.
Public Bodies (Abolition of the Registrar of Public Lending Right) Order 2013
Motion to Approve
That the draft order laid before the House on 9 May be approved.
Relevant documents: 2nd Report from the Secondary Legislation Scrutiny Committee, 2nd Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 8 July.
Social Security, Child Support, Vaccine Damage and Other Payments (Decisions and Appeals) (Amendment) Regulations 2013
Motion to Approve
Marriage (Same Sex Couples) Bill
Report (2nd Day)
Schedule 4 : Effect of extension of marriage: further provision
84: Schedule 4, page 36, line 20, leave out sub-paragraphs (2) and (3) and insert—
“( ) Omit sub-paragraph (1).”
My Lords, I shall speak also to my manuscript amendment, Amendment 84A.
The amendment is, on the face of it, about pensions, but it is also about equal treatment of the ones we love. This is the only point in the Bill where we treat same-sex couples who get married prejudicially when compared with opposite-sex couples. All married couples should be treated equally. It is a principle that we have fought throughout the Bill to maintain. I know that it is a principle that the noble Baronesses, Lady Stowell of Beeston and Lady Northover, and the noble and learned Lord, Lord Wallace of Tankerness, have defended. It is something that the majority of this House, regardless of party affiliation, has defended. If we let this clause go through as it is, it will be the first and only time that we breach that principle. Let me explain why.
If I were to marry a woman and was a member of an occupational pension scheme and died, my wife would be entitled to a survivor’s pension from my occupational pension scheme backdated to, I think, 1988. If I were to marry a man and was a member of the same occupational pension scheme and died, my partner’s survivor’s pension benefit would be backdated only to 2005, the date on which we introduced civil partnerships.
The Bill takes the inequality in the Civil Partnership Act and applies it to same-sex marriages, instead of taking the position of opposite-sex couples and equalising the pension arrangements. In effect, that means that same-sex couples are treated as civil partners for those schemes. That might be necessary if there was a huge cost to the public purse, given that we are in difficult economic times. However, let me make it clear in absolute terms that no public money is required to make this change. I will repeat that, because the Government may try to imply that there would be: no public money is required to make this change. If I am wrong, I am more than happy for the Minister to explain why. The cost is to private occupational pension schemes; that is in Bill. The Government’s estimate puts the maximum additional cost at approximately £80 million for those private schemes. By their own admission, that is a drop in the ocean, given the size of those pension funds.
The Government know that this is wrong. In 2005 the Government changed the rules of their own pension scheme for civil partnership survivor benefits, because it felt wrong to them to apply this principle to public service pensions. Equally, two-thirds of the private occupational pension schemes in this country believe that it is wrong and have changed their policy. We heard from the spiritual Benches that the Church of England has changed its pension scheme arrangements to reflect this. Why, therefore, let one-third of occupational pension schemes discriminate against married couples in the future only on the basis of sexual orientation? It is worth mentioning that, in order to qualify, the scheme member will have to have fully paid up towards the scheme. That requires a private occupational pension fund to disregard the contributions made prior to 2005 to stop the survivor’s benefit coming through.
I said in Committee that when you lose your husband, wife or long-term partner, it is, by all accounts, a terrible experience. The last thing you want to do is to have to argue your case to a pension fund trustee. Given that we have this legislation, it must be insulting to be told that having married, you are now to be treated as a civil partner.
Why are the Government opposed to this amendment? It is the Treasury and DWP. I know that the Minister will be forced to read out whatever they have asked her to read out. I suspect that it will go something like this. First, “We foresee problems with this amendment, as there may be unforeseen implications,”; or, secondly, “Even though there is no direct cost to the Treasury, we can see the possibility that someone could take a case that might lead to the possibility that we might at some time have to equalise pensions for men and women”—by the way, it would be a miracle if that case came off; or, thirdly, “Let us throw in a spurious cost: £2 billion, £3 billion or £4 billion—the Minister to choose whichever number they wish”—that is to do with gender equalisation of pensions, not occupational pension schemes—but noble Lords Lordships will be so bored and confused that they will not care; or, fourthly, “Let us make out that it creates an inequality because this is an equality Bill”; or, fifthly, “Let us say that we do not like to legislate retrospectively even though we changed our own pension funds retrospectively as soon as we could”.
Yesterday, I met the pensions Minister by the kind invitation of the noble Baroness, Lady Stowell. At the end of our discussion, I could honestly say that I was no clearer about the objections of the Treasury or DWP to this amendment. The pensions Minister gave the usual unconvincing and unintelligible Treasury line. The Government are making a mountain out of a molehill here. This is a tiny issue affecting a small number of people at a terrible time of need.
I have also tabled a manuscript amendment which seeks to give the Government an alternative. I am calling it the “Lord Lester principle”. Basically, it offers the Government a two-tier process: first, a review of the issues involved and a report back; and secondly, order-making powers to implement their decisions, as we did with humanist marriages. If the Minister feels that the Government need more time, I would be happy to discuss these alternatives to try to find a solution before Third Reading. If the Government are not prepared to do that, I will move my manuscript amendment, Amendment 84A, and seek to test the opinion of the House. I beg to move.
My Lords, as in Committee, I am pleased to support the amendment moved by the noble Lord, Lord Alli. As he has pointed out, the amendment represents a crucial opportunity to ensure that the introduction of same-sex marriage in this country is achieved with exactly the same basic benefits and insurance rights for male/male and female/female as for male/female. If we do not address this final discriminatory hurdle now, it will be several decades before all gay couples achieve equality. For gay men and women, it will mean decades of waiting as they continue to live with the reality that their loved ones may not be provided for when they die; decades in which individuals who have worked and contributed to their pensions, planned and been prudent, are subject to the whim of employers and pension providers, who may choose to pay a pittance in survivor benefits for no other reason than the gender of their spouses. If we do not remove this last remnant of historical injustice, the “second tier” of marriage will continue in contradiction of all the calls for exactly equal treatment that we have heard again and again over the past few days in your Lordships’ Chamber.
A brief look across the Atlantic may help to illustrate the point. Two weeks ago, in the landmark case of United States v Windsor, the Supreme Court considered the case of Edith Windsor and her spouse and partner of 44 years, Thea. They lived together in New York, a state which recognises same-sex marriages, and when Thea died in 2009 she left her entire estate to Edith. Had they been a heterosexual couple, Edith would have inherited the entire estate tax free. However, US federal law prevents their marriage being recognised for the purpose of inheritance tax and Edith was hit with a bill for $363,053. The Supreme Court found the law to be unconstitutional. A key plank in its reasoning was that the treatment of Edith and others like her had the effect of creating a separate sub-set of legal marriages that were treated less favourably. To use the words of Justice Kennedy,
“it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition”,
“the principal purpose and the necessary effect of this law are to demean those persons who are in lawful same-sex marriage”.
The effect of this judgment was to grant legally married same-sex couples access to the same federal entitlement available to heterosexual married couples including tax, health and pension rights.
Questions of taxes and pensions may seem mundane to some, but I can confidently say that this change in the law would mean the world to those people whom it affects. Among them is a client of Liberty, John Walker. I mentioned him when your Lordships debated this issue in Committee. John and his partner have been in a loving, committed relationship for more than 20 years, and they registered for a civil partnership at the earliest opportunity. Yet John’s partner is currently entitled to a fraction of the survivor benefits which would be available to a female spouse, even one John met and married today.
It cannot be right to continue a two-tier discriminatory marriage system. Surely John deserves the peace of mind of knowing that his partner will be equally provided for. Is that not exactly what the Government’s commitment to securing real equality for gay couples really means?
My Lords, I too have put my name to this amendment. After two such full speeches by the noble Lord, Lord Alli, and the noble Baroness, Lady Howe of Idlicote, it would be a waste of your Lordships’ time for me to say anything more than that I agree with both of them, but I also believe in the art of the possible. That is why I very much hope that manuscript Amendment 84A, or some form of it, will be agreed by the Government, because in that way we will have some hope of getting real change.
My Lords, the noble Lord, Lord Alli, has already spoken of some support from these Benches for his amendment. I will not repeat what I said at an earlier stage, but I wish to support him again, and also, as the noble Lord, Lord Lester, has just said, to support the device of regulation as a practical way forward.
My Lords, my heart is completely with Amendment 84 in the name of the noble Lord, Lord Alli, but I have trouble in my head to completely agree with the amendment, mainly because we are opposing a retrospective burden without any evidence of what that impact might be. I completely understand the case for the individuals who are affected. We do not know where the cost will actually be borne. The cost is low overall, but it is not correct to compare it to the amount of assets under management, as was done in Committee, because the instance might be in very small pension schemes. It might be the instance of a relatively small scheme with a relative small number of members, one highly paid member with a civil partner—or married in a same-sex couple—who is very much younger. That would have a very disproportionate impact on the actuarial valuation of the liabilities in that small scheme, which could be a charity or a small business. I would be much more comfortable if we knew what the impact was. We may still, knowing the impact, go ahead, and that is why I strongly support Amendment 84A but have a little difficulty with Amendment 84.
My Lords, like my noble friend who has just spoken, I, too, have serious reservations about this amendment. Indeed, I am opposed to it. I take that view in the light of experience—some eight or nine years on the Front Bench on work and pensions and as a former chairman of a pretty large company pension scheme. This amendment would effectively remove the discretion of the trustees to exercise their powers in a way that is favourable or unfavourable to a particular group of people in the pension scheme. We do not know the exact cost, although the noble Lord, Lord Alli, put it at £80 million. I leave it to my noble friend on the Front Bench to say what the effect would be on public finances but the reality is that this would affect a number of pension funds.
We have to look at this in context. If there was one individual disaster, more than any other of Gordon Brown’s time as Chancellor of the Exchequer, it was the change that he made to the taxation of company pensions towards the beginning of the Labour Government. The result has, undoubtedly, been the decimation of final salary pension schemes and a transfer to defined contribution schemes. Either way, we have seen the finances of pension funds seriously deteriorating and, in many cases, funds giving up the final salary scheme or giving it up as far as new members are concerned.
As the noble Lord pointed out, a number of trustees have gone along with what the amendment does. However, some have not, and we must leave them the discretion. There may be good reasons why they have not, not least financial ones. It may be that some scheme is tottering—as many have been over the past 10 or 15 years—to the point where it needs to be decided whether the scheme should be closed or changed from a final salary to a defined benefit scheme and so on. It is wrong retrospectively to put a charge on the funds in such a scheme, to which the existing members are contributing but not the people coming into the scheme. Indeed, if we were to accept the amendment, we may find people in a same-sex marriage are brought into the final salary part of the company scheme when others, in the defined contribution part of the scheme, have not been allowed the same benefits. That would, I think, be unfair.
We should leave it to the overall discretion of the trustees. No doubt, over time, it is likely that many more will create the situation that the noble Lord, Lord Alli, speaks of, if they have not yet. However, we should leave it to the discretion of the scheme and the trustees of the scheme—it is their responsibility—and not retrospectively impose a cost on those schemes. That, I think, would be wrong.
My Lords, throughout this debate, we have had to say to groups and individuals who are very unhappy about this legislation that, in the cause of equal marriage, they will have to contain their unhappiness. We have said, for example, to registrars—I use the example because I voted the other way in that case—that they will have to accept the change in the law.
It worries me that the moment that we talk about money, all sorts of people who have been perfectly happy up to now start being concerned. I hope that the right reverend Prelate will not be upset when I say that I remember, in the debates in the Synod of the Church of England, that everybody was very happy until you started talking about money. Once you talked about money, it was surprising how all kinds of other issues were brought in. One of the things about pensions is that it can be more expensive for people if they get married than if they do not. Nobody goes around saying, “That is a pretty mean thing to do. That means less for the rest of us”. That is not how a pension scheme works.
It seems to me perfectly acceptable for the Government to have the opportunity—which the noble Lord, Lord Alli, with characteristic care, has offered—to look carefully in case one or two of the worries of the noble Lord and the noble Baroness who have spoken before turn out to be true. There might be something that we have not really thought through and it would be wrong to exclude that possibility. However, I do not think that this House can say that, for the time going forward, one sort of marriage will work in one way and another will work in another way. After all, we opposed an amendment that delicately pointed towards that by a majority of more than 200. It seems to me that Mammon is getting into this, and Mammon should always be very carefully considered before Mammon is allowed to win. I hope that the Minister accepts at the very least that every effort will be made to ensure that this Bill means what it says, which is equal marriage, and that it does not mean equal marriage until it comes to money, when the Treasury gets in on the act.
My Lords, I remind my noble friend that we are advised to make friends of both God and Mammon. In this context, we are under the shadow of an enormous majority in the Second Reading debate, in which the House accepted the principle of equality. In Committee, I sought to apply that principle to the process of converting a civil partnership into a marriage by requiring those undergoing that process to swear an oath similar to that sworn by those getting married. I withdrew it partly at the request of my noble friend on the Front Bench and partly out of prudence in order to consider it before the next stage, which is the current stage. My noble friend was ahead of me at the Dispatch Box with an arrangement which comes just about to the same place with regard to my marriage—or, rather, to my amendment.
I assure noble Lords that it is very difficult to get close to my marriage. My noble friend put forward an arrangement that gave the Government time to think and gave the Secretary of State the power to review and to act if it seemed appropriate. I think I was a little ungracious in moving my own amendment because I was so pleased with how clever my own drafting had been. However, that was the principle that I sought to support.
I was rather surprised that the noble Lord, Lord Alli, who had been quite supportive of my amendment in Committee, came forward with all sorts of reservations and was unable to support it earlier. Your Lordships will now be expecting me, with a certain satisfaction, to say that I cannot follow him so far. However, I am a man of principle, and I think that we need to have equality through this Bill. Amendment 84A gives the Government the power to pull out of this if necessary. I remind them that, during the time that they are considering, reviewing and consulting, they might go through the same reviews and consultations with the insurers as they have done over, for instance, flooding. The Government are used to talking to insurance companies and can at least find out where the shoe pinches, and this amendment would allow them to do so. I do not support the first amendment in this group, which locks them in, but I believe that the second one is a reasonable proposal, which honours the principle that we reluctantly have accepted; but, having accepted it, I think we should be gracious about it.
My Lords, I support the first amendment for reasons of principle, about which the noble Lords have spoken. The principle of equality is very important. It seems to me that, in Committee, the Minister was unable to respond with any arguments at all based on principle. They were purely pragmatic arguments, which I do not think noble Lords found very convincing.
Amendment 84A, which I support, is very much in line with the recommendation of the Joint Committee on Human Rights, which argued that,
“we consider that the Government should carry out a full review of pension provisions in relation to survivor pension benefit entitlements of same sex married couples and civil partners to ensure that there is no unjustifiable discrimination in pension scheme provisions”.
My Lords, I have added my name to manuscript Amendment 84A, tabled by my noble friend Lord Alli, because we believe that this is the most sensible course of action at this stage. Like my noble friend, we want to ensure that there is no discrimination in the Bill and that there are not two tiers of marriage. I, too, am extremely grateful to the Minister for managing to arrange a meeting with the Pensions Minister yesterday.
We have always accepted that there would be some direct cost to private pension schemes. However, £18 million, which is the figure often quoted, is a drop in the ocean for schemes worth an estimated £76.4 billion. The Government have asserted that equalising pensions benefits for civil partners and married couples of the same sex after this Bill could leave the public sector liable for costs of up to £3 billion to £4 billion. However, they have been far more reluctant to explain where those costs might come from.
As my noble friend said, the Government have already acted to equalise survivor benefit entitlements for civil partners with those of widowers for public sector and contracted-out schemes. The £3 billion to £4 billion estimate is based on the assumption that the removal of the legal exemption for civil partners will leave the Government being forced to equalise the entitlements of widowers with widows, thus levelling everyone back to 1978. But why they believe this to be a significant risk remains unclear.
The 1978/1988 distinction between widowers and widows was based on the historic position of women as being largely dependent on their husbands for income. Indeed, the courts have only recently upheld this distinction in the case of R v Iain Cockburn and Secretary of State for Health, where the judge ruled that there was an “objective and reasonable justification” for this because there had been, as the Government argued, a progressive realisation of gender equality and the initial rules had been set up to recognise the weaker economic position of widows.
Without the provision within this Bill, female spouses of same-sex marriages would, we presume, simply be treated as widows for the purposes of survivor benefits and male survivors as widowers. But nothing in my noble friend’s Amendment 84 would affect the historic male/female distinction that the courts have so recently upheld. To argue against this on the basis of retrospectivity is also flawed as the Government violated this principle themselves when levelling civil partners back to the entitlements of widowers, as they quite rightly did for public service pensions and contracted-out schemes.
In some sense, it could be said that by creating a different entitlement for widows and widowers of same-sex marriages from those of opposite-sex couples the Government are actually weakening their case against future challenges to widow/widower distinction. However, despite agreeing with my noble friend that the Government’s argument here is extremely tenuous, we want to offer the Government an opportunity to remove this inequality in the most appropriate way, as noble Lords on the Benches opposite have also said, and that is why I have added my name to the manuscript amendment today.
By voting for Amendment 84A, noble Lords will be saying, “We are not happy about the provisions within the Bill as it stands so we are leaving them there in parenthesis, as it were, for now until the Government have come forward with firm proposals for how to deal with this clear inequality”. It is quite clear to us that, one way or another, the Government will have to sort this out. It is better to do this through a process that they can own rather than be forced by the courts to do it later, as undoubtedly they would have to do.
I urge the Minister to accept Amendment 84A. I realise that the Government may well have to come back with tweaks at Third Reading but we want to right this inequality and this is a very fine way forward. It gives the Government some space to reflect, to look, to review and then come back, using the order-making power, to get rid of this inequality. I trust that the Minister will be able to accept this amendment.
My Lords, I must first say to my noble friend Lord Elton that I am in charge of many things at the moment, but one thing I am not in charge of is flooding. I would rather not add that to my portfolio for now. Before I respond in detail to the debate, I need to make a correction to the figures previously used by the Government in debates on this issue, about the number of schemes using the Equality Act exception relating to civil partners. The Government had stated that two-thirds of private occupational pension schemes already go further than the 2005 exception. This is incorrect. The correct figure is one-third. However, this does not change the estimated £18 million increase in liabilities that would arise from removing this exception, as that was already based on one-third of schemes.
The pensions system as a whole is full of differences in treatment as a result of changes in society and social attitudes. Such changes are introduced prospectively, so as not to place new unfunded burdens on pension schemes which could not have been taken into consideration in their funding assumptions. The current Equality Act exception, which this Bill also applies to people in same-sex marriages, recognises that pension outcomes in the present always reflect different accruals in the past, and that changes should be forward looking, rather than be retrospective.
Governments of all parties have sought to equalise pensions over time. What they have not done is try to equalise pension outcomes in the present, thereby breaking the link between past accruals and present outcomes. The standard approach is based on the principle that it is not right to impose costs on schemes, meaning they would have to pay out new amounts that were not promised in the past, whatever the exact scale of those costs.
Avoiding imposing retrospective costs on pension schemes is the standard principled approach which has been taken by successive Governments. That is the approach the previous Government took when civil partnerships were introduced in 2005, and when they brought forward the Equality Act in 2010. That is the approach we have taken in this Bill, by aligning the pension position of same-sex married couples with that of civil partners.
This approach means that pension schemes take time to catch up with societal changes, but over time the anomalies reduce and eventually disappear. Making any change to the position set out in the Bill would mean placing retrospective costs on the schemes. The Government understand that the current position is not perfect, but it is based on the principle that we should not seek to impose retrospective costs on private pension schemes—costs that were not planned for when benefits were being accrued.
The noble Lord, Lord Alli, seemed to try to dismiss the arguments that I was going to put forward before I had even had the opportunity to do so, but the Government’s case is quite clear. It is a strong one and I shall go through it properly. The two amendments in this group have different effects, as we have already established. Amendment 84, moved by the noble Lord, Lord Alli, would mean employers having to pay survivor benefits to civil partners in respect of their deceased spouse’s service prior to 2005, when civil partnerships first became possible. This amendment does not meet what I believe the noble Lord is trying to achieve, which is to give parity in provision of survivor benefits between same-sex married couples and opposite-sex married couples.
As well as going against the standard principled approach of avoiding imposing retrospective unfunded burdens, removing the current exception in the Equality Act would potentially lead to a much wider range of discrimination claims against pension schemes. There would be a significant risk of a domino effect, leading to full equalisation of survivor benefits at a significant cost to schemes and the taxpayer. The noble Lord, Lord Alli, said that no public money would be required to make this change. I disagree.
In addition to its impact on private sector schemes, the amendment would also impose a direct cost on public service schemes which would, at least, have to pay survivor benefits to surviving female civil partners based on pre-1988 service. This is because if the amendment were passed, not paying benefits to surviving female civil partners based on pre-1988 service would be discrimination on the basis of sexual orientation. To remove any such discrimination, public sector schemes would have to equalise pension benefits for surviving female civil partners and same-sex married couples with those for widows which are based on accruals from 1978. At the moment, benefits for those female survivors are currently based on accruals from 1988. Therefore, there is an immediate cost to the taxpayer.
The amendment would remove statutory provisions that mean it is not discriminatory for occupational schemes to pay survivor benefits only to civil partners based on the service of a deceased partner since 2005. It would also remove the provision in the Bill that extends this exception to same-sex married couples. If the intention is not to alter the existing arrangements that apply to civil partners but instead ensure there is no discrimination between same-sex married people and opposite-sex married people, Amendment 84 will not achieve that. It would impact immediately on those occupational schemes that currently make no provision for civil partners based on service prior to 2005. An alternative approach—which may be what the noble Lord, Lord Alli, would like to achieve—would be to equalise the position of same-sex married couples with that of opposite-sex married couples. However, there is significant uncertainty as to whether a change of that kind would in fact have that result, given that the Government would need to consider carefully whether different treatment of civil partners and married same-sex couples in this regard would be capable of justification.
Further, instances of inequality between men and women run through the pensions system because—as I have explained—rights built up in the past reflect the different social attitudes of those times. This means there are pre-existing differences in treatment between men and women. These differences mean that any change short of full equalisation would deliver only partial equalisation; anything less could lead to new gender discrimination arising in the schemes. Removal of the current exception in the Equality Act would potentially lead to a much wider range of discrimination claims against pension schemes. As I said, there would be a significant risk of a domino effect leading to full equalisation between widows and widowers across the public service schemes, at a significant cost to the taxpayer. We do not know for certain what the full costs of that domino effect would be but in 2011 the Government Actuary’s Department estimated the cost of equalising survivor benefits for widows and widowers in the public service schemes at between £3 billion and £4 billion. That gives an idea of the potential costs to the taxpayer of full equalisation. It also indicates why Governments—including the Government of the noble Baroness, Lady Royall—have avoided imposing retrospective changes on schemes.
While I understand the concern that as regards pension benefits same-sex married couples will be placed in a different position from opposite-sex married couples, this demonstrates the need to consider very carefully whether any departure from the established approach is appropriate and what the costs and legal implications of any change would be. It would be irresponsible of any Government to commit themselves to potentially imposing significant costs on businesses and the taxpayer without undertaking an assessment of the full scale of those costs. While it has taken me quite some time to read this out, and it is very much the Government’s position, just the fact that it is very complicated and hard to understand justifies me in saying that this is not easy to solve in one fell swoop.
This seems to be the appropriate point to interrupt the very clear exposition my noble friend is making. I put this case to her: there is a company that had a final salary scheme for existing members and then, later in time, introduced a defined contribution scheme. The people in the defined contribution scheme cannot get all the benefits in the original scheme. None the less, the people under this retrospective legislation would be able to do so. They would be more privileged than the people in the existing defined contribution scheme.
That is an interesting point. My understanding of Amendment 84 is that its proposals would only apply to those who are currently in a defined benefit scheme. This is not about introducing the benefits of a defined benefits scheme to those who are only in a defined contribution scheme. I do not think that what my noble friend is suggesting is what is proposed in the noble Lord’s amendment.
As I have tried to explain, any change to the arrangements set out in the Bill would impose costs on the public purse, which would be considerable. The House should therefore be aware that any change to the position set out in the Bill would have a cost to the public purse, so an amendment to the Bill on this issue would infringe the House of Commons’ financial privilege.
I was with the noble Baroness up to that point. I really think that the Government cannot say that there is a public cost, money coming out of the Treasury, for a section of the Bill marked “Part 6: Occupational Pensions and Survivor Benefits”, at page 36, which is limited to occupational pension schemes only. There is no public money, and the Government cannot say that there is. It is so clear that the House should not be put in a position of believing that public money is being spent on this.
I hope that I have been able to explain through my answer so far that there is a cost to the public purse in Amendment 84. Therefore, the amendment would infringe the House of Commons’ financial privilege. I have explained to the House why the Government believe that that is so.
Given the potential uncertainty and scale of these costs, we should be clear about what the implications and costs of the change might be before we make any legislative commitment in this area. I think that we can agree that this debate demonstrates the need for us all to be much better informed about the wider implications of equalising entitlement to survivors’ rights. Some of the points made by my noble friends Lord Higgins and Lady Noakes demonstrate that there are issues which need proper and careful consideration.
All that said, I can see the sense in what the noble Lord, Lord Alli, is trying to achieve via manuscript Amendment 84A that he has tabled today, which includes a review and order-making powers. I am grateful to him for reflecting further following the meeting we had yesterday with the Pensions Minister, my honourable friend Steve Webb.
I am conscious of the strength of feeling that has been expressed in this debate, and have considered the points that have been made very carefully. While I cannot accept the noble Lord’s amendment in its form today, I am willing to take it away and discuss it further with my ministerial colleagues with the firm intention of bringing back a government amendment at Third Reading. I therefore hope that the noble Lord, Lord Alli, will feel that he need not move Amendment 84A today.
My Lords, I thank the Minister for that answer. Before I move on, I will add a few things. It took eight minutes before all five of my responses were used. I mention that because this is a very complex area—I accept that. However, there is a lot of smoke here. The issue that most concerns me, and the reason why I intervened, is that there is no public money. I say that having looked very deeply into this issue. To those in Committee, I said that I had the honour at the beginning of my career to be the publisher of Pensions magazine, Savings Market and Insurance Age. Therefore, I have spent time understanding the pensions market. The £2 billion to £3 billion to which the Government refer is about taking out the gender discrimination between widows and widowers. Recent judgments have upheld that principle. It has nothing to do with occupational pension schemes.
The second correction that I wanted to make was on the issue about the Civil Partnership Act and why it was put in place. Under the Civil Partnership Act, there is no corresponding civil partnership for straight people, so the read-across between opposite-sex couples and same-sex couples did not apply with civil partnerships. In this instance there is a read-across of a prejudicial treatment of two types of married spouses. That is my concern.
The final issue is that the cost is so minimal—£18 million at the low end and £80 million at the high end. The actuarial assumptions are so hard to make. Actuaries, in my experience, do not build the cost of gay people into their schemes. They do not look at whether someone is straight or gay and discount the rate. Historically, they do not go back and say, “Some gay people will have married because history allowed them to do so or society forced them to do so”. I am fairly sure that the actuarial calculations will remain pretty static. Those are the issues involved.
I thank all noble Lords who have contributed to this debate and given support. In particular, I thank the noble Baroness, Lady Howe of Idlicote, and the noble Lord, Lord Lester of Herne Hill, for adding their support to Amendment 84. I also thank my noble friend Lady Royall of Blaisdon for adding her name and support to Amendment 84A. Of course, I also thank the Minister. We have all been on a huge educational process on pensions; I fear that there may be another week of pensions mania, for which I deeply apologise. I thank her for her response; it is what the House had hoped to hear and I am very pleased with it. On that basis, I beg leave to withdraw Amendment 84.
Amendment 84 withdrawn.
Amendment 84A* not moved.
85: Before Clause 12, insert the following new Clause—
(1) For the purposes of legislation regulating or relating to marriage—
(a) there shall no difference or distinction be made between lawful marriage of same sex couples and lawful marriage between a man and a woman, save as provided for in this Act or as required to give effect to any difference or distinction which is made necessary by reason of physiological or biological differences of gender or consequences thereof;(b) where it is necessary to make legislative provision regulating or relating to marriages between same sex couples but not marriages between a man or a woman, or marriages between a man and a woman but not marriages between same sex couples, lawful marriage between same sex couples may be defined as same sex marriage, lawful marriages between same sex couples may be defined as same sex marriages, lawful marriage between a man and a woman may be defined as opposite sex marriage and lawful marriages between a man and a woman may be defined as opposite sex marriages;(c) all legislation regulating or relating to marriage having effect before the passage of this Act continues in effect in relation to opposite sex marriages save as varied or modified by any provision of this Act;(d) the Secretary of State or the Lord Chancellor may by order vary, modify or repeal legislation regulating or relating to opposite sex marriage, if it appears that such variation, modification or repeal is required as a consequence of the passage of this Act.”
My Lords, I move the amendment standing in my name and in the names of my noble and learned friend Lord Mackay of Clashfern and my noble friends Lady Williams of Crosby and Lord Lea of Crondall—if a Cross-Bencher may be allowed to have noble friends in all parts of the House.
What are the purposes of this amendment? The preamble makes it clear that it is limited to legislation regulating or relating to marriage. The primary purpose of the Bill is, I take it, to enable same-sex couples to be married, to enjoy the same rights and privileges and be subject to the same laws, duties and obligations as married man-and-woman couples already enjoy and are subject to. On Monday, the Minister said that,
“there is one institution of marriage and we are opening the door to it … There will be only one door and all couples will be invited to walk through it”.—[Official Report, 8/7/13; col. 33.]
The first subsection of the proposed new clause supports and restates that purpose. The institution of marriage will be like a club, in which all lawfully married couples, whether in same-sex marriages or in man-and-woman marriages, will be equal members enjoying all the privileges and pleasures afforded by the club and accepting the rules of the club and the duties and obligations of membership.
Once the Bill reaches the statute book, there will be, within the single institution of marriage, two forms—or “types”, as the noble Lord, Lord Alli, said just now—of marriage. There will be a high degree of uniformity within the institution between the two forms of membership. However, as in any club, not all members will be exactly alike. There will be some fundamental physiological and biological differences that all of us recognise and understand and which no human legislation can ever completely smooth over or eradicate. We should be doing the cause a disservice if we were to pretend that it will or might be otherwise.
The amendment is intended to provide for the greatest possible degree of uniformity in legislation between same-sex couples and man-and-woman couples and for situations in which, because of these fundamental differences, it may be necessary, not just desirable, to introduce legislation that applies to marriages of man-and-woman couples but not to marriages of same-sex couples, or, conversely, to marriages of same-sex couples but not to marriages of man-and-woman couples.
When or even whether such a situation is likely to arise, I cannot predict. However, our debates on the Bill have already shown that the development of the law on marriage in the new circumstances will be, for some time at any rate, a complicated and delicate business. It is more likely than not that such a situation will arise within the next few transitional years after the Bill is passed as the new institution settles down. If that is so, we should be foreseeing it and providing for it now.
The definitions of the two forms of marriage suggested in the amendment are dry and factual. It would be possible to find, in the great heap of riches of the English language, apt words of greater evocative moment, although perhaps not of greater pith. I rather think that “traditional” should not be one of them. The word has too limited a shelf life for use in legislation. Innovations tend to become quickly encrusted with tradition. That is part of the process of establishing them, and the youngest traditions are often the strongest. We know what traditional marriage means today, but I hazard a prediction that within a generation of the passage of the Bill—perhaps even within 10 years—gay and lesbian marriage will become as traditional as heterosexual marriage. However that may be, the definitions in the amendment have been adopted because they are already in the Bill. That is what I call the line of least resistance.
My noble and learned friend Lord Mackay of Clashfern particularly hopes that the noble Lord, Lord Phillips of Sudbury, and the noble Baroness, Lady Howarth of Breckland, will be gratified to note that the amendment is 100% bracket-free.
These definitions are permissive not mandatory. The amendment makes it clear that they may be used in legislation, not that they shall be used. If in future anyone wants to use different definitions in new legislation, they will be free to do so.
We offer this amendment to improve the Bill, not to weaken, dilute or frustrate its purposes. It is completely even-handed, neither expressing nor implying any value judgment between the two forms of marriage within the single institution of marriage. It cannot be interpreted as implying that one form of marriage is superior or inferior to the other. I commend the amendment to your Lordships as a strictly limited, practical, realistic, sensible and undogmatic proposal for dealing with problems that are likely to arise in relation to the application of legislation to the institution of marriage as it will be once the Bill has been enacted. I beg to move.
My Lords, some of the amendments moved in the course of our debates have been eccentric. However, respectfully, I should say that Amendment 85 is among the most eccentric, not least because of its very distinguished authors—a former Cabinet Secretary, a Lord Chancellor and my noble friend Lady Williams of Crosby, whose deeply held religious convictions as a Catholic I fully respect.
Leaving aside its extraordinary length and detail, Amendment 85 is moved in the face of the overwhelming and decisive decisions made by the House on Monday to reject similar attempts to classify and separate opposite-sex and same-sex marriages. In paragraph (a), the amendment declares that,
“there shall no difference or distinction be made between lawful marriage of same sex couples and lawful marriage between a man and a woman, save as provided for in this Act”.
If the amendment stopped there, it would be completely unobjectionable although also completely unnecessary, but it does not stop there. It continues by making an exception,
“as required to give effect to any difference or distinction which is made necessary by reason of physiological or biological differences of gender or consequences thereof”.
It is probably my fault, but I do not understand what that is meant to mean. Most men and most women are biologically different and sexual intercourse between a man and woman, a man and a man and a woman and a woman may reflect those differences of biology and anatomy, but how do those differences require future or existing law regulating or relating to marriage to treat traditional, conjugal and new consensual marriage differently? We are beyond the watershed for children, and I shall be grateful for an explanation of what this has to do with the law rather than the Kama Sutra.
Paragraph (b) seeks to separate the two forms of marriage using about 100 words instead of a bracket. We have already firmly rejected that attempt; I respectfully ask what the point is of rehearsing the arguments again and again.
Paragraph (c) is unnecessary because it goes, or should go, without saying, that existing legislation will continue in effect in relation to opposite-sex marriages except as amended by the Bill. As to paragraph (d), given the vague obscurity of the earlier parts of the amendment, its meaning and effect would puzzle Henry VIII and his Lord Chancellor as well as the current holder of that high office. If the noble Lord tests the opinion of the House, I hope that the amendment will be rejected.
My Lords, I agree with the noble Lord, Lord Lester of Herne Hill, though possibly not in relation to the Kama Sutra. The point being made by the noble Lord, Lord Armstrong of Ilminster, as I understood it, was that provision should be made in this Bill to confer power to address problems that may arise in consequence of this Bill when enacted. Of course, Clause 15(2) already does that. It says:
“The Secretary of State or Lord Chancellor may, by order, make such provision as the Secretary of State or Lord Chancellor considers appropriate in consequence of this Act”.
For the avoidance of doubt, Clause 15(3) states that any such provision that may be made,
“includes provision amending UK legislation”.
That would seem to me amply to address any concerns.
Perhaps I may say just one thing because I was attacked—not attacked, but charmingly referred to—by the noble Baroness, who said that I was being a bit jokey about adultery. I really was not being jokey about adultery. I think that I am coming back to my mother again on this. What is being proposed here is another version of the amendments that we have had all along. This one says: “We cannot find anything at the moment, but we might find something in the future. So in case we do find something in the future, we will put something in at the moment—and by the way, that means that we can point to the thing that we put in at the moment, which shows that there is a difference, and that is what we meant in the first place”. I am not a lawyer but, if I may dare say to the two noble lawyers who went before me, I do not need to refer to the law. All I can say is that this is one of the most ingenious attempts that we have had so far. I do not think that they can do it again, but it is another go. Even if it has been charmingly presented by the noble Lord with such elegance and beautiful English, for which we all honour him, the fact is that it will not wash. It is another go. Let us not take it, and if it is voted on, let us increase the majority to more than the 200 that we had last time.
My Lords, I agree with the noble Lord, Lord Deben, that this is an elegant amendment. However, although it might be bracket free, it has an awful lot of commas and sub-clauses. I have listened very carefully to the noble Lord, Lord Armstrong, and the supporters of this amendment who did not speak but are distinguished Members of your Lordships’ House, to see whether there are new arguments to justify passing an amendment that would—like the ones that we discussed on Monday and in Committee—undermine the purpose of the Bill, which is to put same-sex marriage on the same basis as opposite-sex marriage, and although I pay tribute to the noble Lord, Lord Armstrong, for this ingenious amendment which seeks to undermine the Bill through secondary legislation, its effects are the same as those of the amendments that went before. I am still puzzled as to why those noble Lords feel that same-sex marriage somehow undermines opposite-sex marriage and, indeed, their own.
We do not believe that the Bill needs to provide for two classes of marriage—one gold and one base, which would be the effect of the amendment—but we do feel that the time has perhaps come to stop having this argument. I and my colleagues will not support the amendment.
My Lords, I thank the noble Lord, Lord Armstrong of Ilminster, for his amendment. I think that we were all very grateful to him on Monday evening when, in view of the hour, he decided to degroup it so that we could debate it today.
Even allowing for the intervening hours, however, it will not come as a surprise to the noble Lord or to anyone else that we do not feel able to accept this amendment however—to use my noble friend Lord Deben’s word—ingenious or, as my noble friend Lord Lester said, extraordinary it is. As the noble Baroness, Lady Thornton, said, it contains within it, in paragraph (b), the same distinction between a marriage of a same-sex couple and a marriage of an opposite-sex couple that was embodied in Amendment 1—admittedly without the brackets, although I am not sure if it is for better or for worse.
The amendment which my noble and learned friend Lord Mackay of Clashfern moved sought to have two different institutions of marriage in law: one for same-sex couples and one for opposite-sex couples. As my noble friend Lord Deben said, this is another attempt. In all fairness to my noble and learned friend Lord Mackay of Clashfern, when moving his amendment on Monday he said:
“This is the minimum that seems to work, although I and other noble Lords think that it may be possible to go further. The later amendment of the noble Lord, Lord Armstrong, to which I and others have added our names, indeed goes further than the minimum”.—[Official Report, 8/7/13; cols. 13-14]
The vote on Amendment 1 on Monday was very decisive—with 119 voting content and 314 voting not content. This House has therefore made clear its view that it would not be right to draw a distinction in the Bill of the kind set out either in Amendment 1, on which we voted, or in Amendment 85. As has been said on more than one occasion as the Bill has been debated in your Lordships’ House, the Bill is about inclusivity and fairness, and this amendment strikes at the heart of that intention. We do not accept that there should be a separate term or institution in law for marriages of same-sex couples. We want them to be able to marry, plain and simple, in the same way as opposite-sex couples can. My noble friend Lady Stowell of Beeston, when replying to the amendment moved by my noble and learned friend, said that it is,
“very simple. There is one institution of marriage, it is one of the most important institutions that we have, and we want gay and lesbian couples to be a part of it in exactly the same way as any other couples who wish to be married. These amendments create two separate, potentially legal institutions and, therefore, undermine the fundamental purpose of the Bill”.—[Official Report, 8/7/2013; cols. 31-32.]
It is because of that principle that we cannot accept the amendment. Amendment 85 would create considerable confusion in terms of the effect it would have sitting alongside Clause 11, as it deals with much the same subject matter—how marriage for same-sex couples and opposite-sex couples is to have effect and be interpreted in law—but adopts a different approach and makes no provision about the interaction between the two. This confusion about how it might work is another reason, in addition to the one of principle, why this amendment should be rejected. I hope that the noble Lord will withdraw the amendment. However, if it is pressed to a Division, I hope that the House will see fit to defeat it.
My Lords, I am grateful to noble Lords who have taken part in this brief debate. I did not expect to please the noble Lord, Lord Lester, but I do not myself think that the amendment deserves the obloquy that he attempts to throw upon it. None the less, given the views that have been expressed, I do not think that it would be right to force a Division. Therefore, with some regret, I beg leave to withdraw the amendment.
Amendment 85 withdrawn.
Schedule 5 : Change of gender of married persons or civil partners
86: Schedule 5, page 40, line 10, after “with” insert “this Part of”
My Lords, in moving Amendment 86, I will speak also to the other government amendments in this group. I am pleased to have this opportunity to talk about a group affected by the Bill who are often overlooked in our debates—that is, those men and women who are transgender. I would like to put on record my thanks to all those who have sent me many e-mails over the past few days.
This Bill will, for the first time, enable couples who wish to remain married when one spouse obtains gender recognition to do so. This is a welcome development for transpeople who have in the past been faced with the difficult choice between obtaining gender recognition or staying in their marriage. Although the Government do not believe that it is justified, I none the less understand that there is a real fear among some transpeople that the Bill will allow their spouse to veto their attempt to get a full gender recognition certificate, if they do not wish to remain married.
I have listened very carefully to the views that have been expressed in Committee and in meetings with noble Lords about this issue. Indeed, I am very grateful to the noble Baronesses, Lady Thornton and Lady Gould, and to my noble friend Lady Barker, who made time to discuss their concerns with me in some depth. Having done so, I am grateful for the opportunity, through Amendments 87 and 88, to make clear that all the non-trans spouse is being asked to give their consent to is whether they wish to remain married if their spouse changes their legal gender.
It is important to explain why this consent is needed, because some people have questioned why the consent of a non-trans spouse is needed in these circumstances. The reason is this: a party to a marriage obtaining gender recognition is a life-changing decision for the applicant and their spouse. The marriage will no longer be contracted between a husband and a wife of the opposite legal gender, which is why it is right that both spouses have the right to agree to a proposal to change the terms of their marriage before the change takes place.
Regardless of the non-trans spouse's view about the future of the marriage, the applicant is still able to get their gender recognition. Transpeople whose spouses do not give their consent to remaining in the marriage will be in the same position as they are now: it will be open to either spouse to commence proceedings to end the marriage before the full gender recognition certificate is issued. I am very pleased to table these amendments, which I hope will put it beyond any doubt that a spouse will never be able to veto a trans applicant’s ability to obtain gender recognition. I hope that these amendments, which make it clear what both parties to the marriage are agreeing to, will allay the concerns that have been expressed. I commend these amendments to the House.
As to Amendments 86, 89 and 133, I said in Committee that the Government have been considering carefully what can be achieved within the scope of this Bill to assist transpeople who made their transition to their acquired gender a long time ago but have not applied for gender recognition up to now because they would have had to end their marriage. The Bill now gives such people the opportunity to obtain gender recognition while remaining married, if their spouse is content for the marriage to continue. However, applicants who made their transition a long time ago may find it difficult to obtain the required medical reports from gender dysphoria specialists.
These amendments will assist such applicants by making the new fast-track procedure available to transpeople who are or were in protected marriages or civil partnerships and who transitioned six years prior to the commencement of these provisions and by reducing the amount of medical evidence they will be required to submit to the gender recognition panel. Such applicants for gender recognition will be required to submit one medical report, either from any medical practitioner, including a GP, or from a registered psychologist who practises in the field of gender dysphoria.
I can assure the House that a great deal of time and consideration has gone into developing these amendments and I hope that they further demonstrate the positive changes the Bill is seeking to make to the lives of married transpeople. I therefore commend them to the House.
My Lords, I begin by thanking the Minister for her tolerance and forbearance throughout our discussions on this very complex issue and for taking the time to meet me and the noble Baronesses, Lady Thornton and Lady Barker, to see if it was possible to arrive at a common view. Before looking at how successful our talks were, I want to say, on behalf of the trans community, how much we appreciate the inclusion in the Bill of the clauses that remove anomalies in respect of married transpeople who wish to apply for recognition by removing the requirement for them to be single at the point of gender recognition and so removing the obligation to dissolve their existing marriage or civil partnership. Equally important to the community is the concession on spouses’ survivor pensions, ensuring that no ongoing financial penalties will be incurred should a transperson in an existing marriage gain gender recognition. The Minister has just referred to the fast-track procedure, which is also very much appreciated.
However, there came a little disappointment because we have been unable to resolve the concerns over spousal consent. We appreciate that the amendments that the Minister has outlined clarify the position in respect of married couples and the definition of a statutory declaration of consent. However, in reality, it makes little difference in terms of that consent; the divorced would probably not be en route to registering a civil partnership. It makes little difference for the transperson. It does not really matter if the spouse is going to consent to the marriage or give consent for recognition. The principle thrust of opposition to the schedule remains unchanged.
There was a temptation to try to arrive at a further amendment that might resolve the differences between us, but that would have required a lot of detailed discussion and deliberation. Although I am not wholly happy with what we have in front of us, I suppose that it is, in some ways, a step in the right direction, which I acknowledge. I hope that there may be another opportunity for that discussion to take place and, when it does, I hope that the Minister will again be co-operative, as she has been, in trying to resolve our differences.
This is almost certainly the unfinished business of the Bill. There is no doubt that the transgender community is angry and will continue to be angry until we manage to achieve some resolution of the problem because its members remain concerned that the Bill provides a spousal veto. Therefore, at this stage, I seek the Minister’s assurance that after the Bill becomes law this issue will be considered in post-legislative scrutiny.
My Lords, I freely confess that one of the happiest days of my life was when I gave up speaking on pensions matters in your Lordships’ House. I never thought that I would come across anything more complex until we came to this legislation. This is not necessarily a complex issue, but when the Minister talks about a fast-track procedure, she is talking about a procedure that has gone on for at least two years. That is the level of difficulty. I thank the Minister. She, like the rest of us, has been on a very fast learning curve and has dealt with these issues with great sensitivity and dedication.
The noble Baroness, Lady Gould, is right; we are perhaps 90% in agreement. The people directly affected by this issue are grateful for the advances made in the Bill. I am sure that the very small number of people who will be directly affected by Amendment 89—people who have not gone through the process of acquiring a full gender recognition certificate because they would have had to divorce their spouse to do so—will be extremely pleased. I am pleased to be accompanied by a number of Bishops today, and I think it is apt to say that one of the couples who I know will be directly affected are active members of their church. Their marriage was very important to them and they did not wish it to be broken up in these circumstances. We have enabled a small number of people to live their lives with greater dignity. That is important.
The noble Baroness, Lady Gould, is right; people in the transgender community believe that there is still a possibility that spouses who are very angry and upset will retain the capacity to delay the process of divorce and therefore of obtaining gender recognition for some time, mostly by starting divorce proceedings and then not actioning them. That remains an issue. I agree with the noble Baroness that we have probably gone as far as we can in the Bill and that the issue is perhaps something to which we should return in post-legislative scrutiny.
The Bill has achieved an important step forward for a small number of people who, in the course of their ordinary lives, put up with an awful lot of hostility. We have made their lives a bit better and enabled them to live with a little more dignity. For that, this House should be very proud of what it has done.
My Lords, government Amendments 86, 87, 88, 89 and 133 will provide a fast-track procedure for gender recognition where individuals have been living in the acquired gender for a long period and clarify that the consent of a spouse means consent to the marriage continuing, not consent to gender recognition. There is no doubt that we wholeheartedly welcome these amendments; we would like to put on record our thanks to the Minister and her team for the amount of work that they have put in on this issue.
This is an issue that colleagues in both Houses have been pushing throughout the Bill’s passage, and we have made progress with the Government on pensions and the fast-track procedure. However, as my noble friend Lady Gould has said, consent is a very sensitive issue, and the transgender community has reacted with outrage at the idea that their final recognition through gender recognition certificates should or possibly could be vetoed by their spouse, particularly if they were estranged or if the relationship had broken down.
Like the noble Baroness, Lady Barker, and my noble friend Lady Gould, we think we have made great progress, but this issue is unresolved and a community that has faced enormous discrimination and prejudice is very concerned about it. We need to keep a watching brief on this issue, and we will need to return to it, certainly in post-legislative scrutiny, if not in another Bill that comes along in which we can find some other way of doing it.
My Lords, I am grateful to all noble Baronesses who have contributed to this debate, who are the same noble Baronesses who I have met to discuss these matters.
I will be very brief in responding to the points that have been made. The noble Baroness, Lady Gould, raised the question of post-legislative scrutiny. I certainly expect the Bill’s impact to be considered and that the issue of spousal content will be part of that process. That would be a matter of form, so I can give some reassurance in that regard at least.
My noble friend Lady Barker mentioned the fast-track procedure and the length of time. The fast-track procedure reduces the amount of evidence that a transperson must submit to the gender recognition panel. Therefore it saves them from having to obtain new, additional evidence, which may be difficult and time-consuming. It does not affect the length of time from application to the issue of the gender recognition certificate; it is about the process prior to that point.
In concluding, I want to say how grateful I am for the generous remarks that have been made and to remind all noble Lords that the Bill is about allowing same-sex couples to marry. We have allowed transpeople who are already married to stay married. That is an enormously positive step forward, and we should not lose sight of that. However, it is worth pointing out also that because those transpeople are already married, it is essential that both spouses confirm that they want to remain married because their marriage is a legal contract that will change. When we get married—although, as we all know, I am not married. I have been to weddings, even if I have not had one of my own—on our wedding day we take somebody to be either our lawfully wedded wife or our lawfully wedded husband. That is a legal contract between two people. This Bill has enabled us to ensure that if one of those people is transgender and wants to have transgender recognition, they are able to do that and to remain married to the person who they fell in love with and married some years before. That is an important thing that we have been able to make happen. I take on board the points that have been made in the debate, but I am pleased that we are at least able to acknowledge the big step forward that this Bill will allow us to take.
Amendment 86 agreed.
Amendments 87 to 89
87: Schedule 5, page 40, line 21, leave out from “declaration” to end and insert “by the applicant’s spouse that the spouse consents to the marriage continuing after the issue of a full gender recognition certificate (“a statutory declaration of consent”)”
88: Schedule 5, page 46, line 7, leave out from “consent”” to end of line 13 and insert “has the meaning given by section 3(6B)(a),””
89: Schedule 5, page 46, line 13, at end insert—
“Part 2Alternative grounds for granting applications for gender recognition certificatesIntroduction15 The Gender Recognition Act 2004 is amended in accordance with this Part of this Schedule.
Alternative grounds for granting applications16 Section 2 (determination of applications): after subsection (3) insert—
“(3A) This section does not apply to an application under section 1(1)(a) which states that it is an application for a certificate to be granted in accordance with section 3A.”
17 After section 3 insert—
“3A Alternative grounds for granting applications
(1) This section applies to an application under section 1(1)(a) which states that it is an application for a certificate to be granted in accordance with this section.
(2) The Panel must grant the application if satisfied that the applicant complies with the requirements imposed by and under section 3B and meets the conditions in subsections (3) to (6).
(3) The first condition is that the applicant was a party to a protected marriage or a protected civil partnership on or before the date the application was made.
(4) The second condition is that the applicant—
(a) was living in the acquired gender six years before the commencement of section 12 of the Marriage (Same Sex Couples) Act 2013,(b) continued to live in the acquired gender until the date the application was made, and(c) intends to continue to live in the acquired gender until death.(5) The third condition is that the applicant—
(a) has or has had gender dysphoria, or(b) has undergone surgical treatment for the purpose of modifying sexual characteristics.(6) The fourth condition is that the applicant is ordinarily resident in England, Wales or Scotland.
(7) The Panel must reject the application if not required by subsection (2) to grant it.”
Evidence for granting applications on alternative grounds18 Section 3 (evidence): after subsection (8) insert—
“(9) This section does not apply to an application under section 1(1)(a) which states that it is an application for a certificate to be granted in accordance with section 3A.”
19 After section 3A (inserted by paragraph 17) insert—
“3B Evidence for granting applications on alternative grounds
(1) This section applies to an application under section 1(1)(a) which states that it is an application for a certificate to be granted in accordance with section 3A.
(2) The application must include either—
(a) a report made by a registered medical practitioner, or (b) a report made by a registered psychologist practising in the field of gender dysphoria.(3) If the application is based on the applicant having or having had gender dysphoria—
(a) the reference in subsection (2) to a registered medical practitioner is to one practising in the field of gender dysphoria, and(b) that subsection is not complied with unless the report includes details of the diagnosis of the applicant’s gender dysphoria. (4) Subsection (2) is not complied with in a case where—
(a) the applicant has undergone or is undergoing treatment for the purpose of modifying sexual characteristics, or(b) treatment for that purpose has been prescribed or planned for the applicant,unless the report required by that subsection includes details of it.(5) The application must also include a statutory declaration by the applicant that the applicant meets the conditions in section 3A(3) and (4).
(6) The application must include—
(a) a statutory declaration as to whether or not the applicant is married or a civil partner,(b) any other information or evidence required by an order made by the Secretary of State, and(c) any other information or evidence which the Panel which is to determine the application may require,and may include any other information or evidence which the applicant wishes to include.(7) If the applicant is married, the application must include a statutory declaration as to whether the marriage is a marriage under the law of England and Wales, of Scotland, of Northern Ireland, or of a country or territory outside the United Kingdom.
(8) If the applicant is married, and the marriage is a protected marriage, the application must also include—
(a) a statutory declaration of consent by the applicant’s spouse (if the spouse has made such a declaration), or(b) a statutory declaration by the applicant that the applicant’s spouse has not made a statutory declaration of consent (if that is the case).(9) If the application includes a statutory declaration of consent by the applicant’s spouse, the Panel must give the spouse notice that the application has been made.
(10) If the Panel which is to determine the application requires information or evidence under subsection (6)(c) it must give reasons for doing so.”.
Membership of Panels determining applications on alternative grounds20 Schedule 1 (Gender Recognition Panels), paragraph 4: after sub-paragraph (2) insert—
“(3) But a Panel need not include a medical member when determining an application under section 1(1)(a) for a certificate to be granted in accordance with section 3A.”.”
Amendments 87 to 89 agreed
90: After Clause 13, insert the following new Clause—
“Marriage according to the usages of belief organisations
(1) The Secretary of State must arrange for a review of—
(a) whether an order under subsection (4) should be made permitting marriages according to the usages of belief organisations to be solemnized on the authority of certificates of a superintendent registrar, and(b) if so, what provision should be included in the order.(2) The arrangements made by the Secretary of State under subsection (1) must provide for the review to include a full public consultation.
(3) The Secretary of State must arrange for a report on the outcome of the review to be produced and published before 1 January 2015.
(4) The Secretary of State may by order make provision for and in connection with permitting marriages according to the usages of belief organisations to be solemnized on the authority of certificates of a superintendent registrar.
(5) An order under subsection (4) may—
(a) amend any England and Wales legislation;(b) make provision for the charging of fees.(6) An order under subsection (4) must provide that no religious service may be used at a marriage which is solemnized in pursuance of the order.
(7) In this section “belief organisation” means an organisation whose principal or sole purpose is the advancement of a system of non-religious beliefs which relate to morality or ethics.”
Amendment 90 agreed.
Schedule 6 : Marriage overseas
91: Schedule 6, page 48, line 33, leave out sub-paragraph (2) and insert—
“(2) An Order in Council may, in particular, make provision—
(a) prohibiting the solemnization of such marriages according to particular religious rites or usages; or(b) permitting the solemnization of such marriages according to particular religious rites or usages.“(2A) Sub-paragraph (2)(b) is subject to sub-paragraphs (2B) and (2C).
(2B) An Order in Council may not make provision allowing the solemnization of forces marriages of same sex couples according to the rites of the Church of England or Church in Wales.
(2C) If an Order in Council makes provision allowing the solemnization of forces marriages of same sex couples according to particular religious rites or usages (other than those of the Church of England or Church in Wales), the Order in Council must also make provision to secure that such a marriage may not be solemnized according to those rites or usages unless the relevant governing authority has given written consent to marriages of same sex couples.
(2D) The person or persons who are the relevant governing body for that purpose are to be determined in accordance with provision made by an Order in Council under this Part of this Schedule.”
92: Schedule 6, page 48, line 41, at end insert—
“(4) If section 8 applies, the Lord Chancellor may, by order, make such relevant amending provision as the Lord Chancellor considers appropriate to allow for the solemnization of forces marriages of same sex couples according to the rites of the Church in Wales.
(5) For that purpose “relevant amending provision” means—
(a) provision amending sub-paragraphs (2B) and (2C) by omitting the words “or Church in Wales”;(b) provision amending any Order in Council made under this Part of this Schedule;(c) provision amending any other UK legislation (including legislation contained in this Part of this Schedule).(6) In making an order under sub-paragraph (4), the Lord Chancellor must have regard to the terms of the resolution of the Governing Body of the Church in Wales referred to in section 8(1).”
Amendments 91 and 92 agreed.
93: Schedule 6, page 50, line 8, leave out sub-paragraph (3)
My Lords, government Amendments 93 and 128 to 132 amend provisions in the Bill relating to marriage in consulates and on Armed Forces bases overseas to exclude their effect in relation to Northern Ireland. Clause 13 repeals the Foreign Marriage Act 1892 which applies UK-wide. Schedule 6 makes provision to replace that regime of consular and Armed Forces marriages overseas with a new regime providing for marriages of both opposite-sex and same-sex couples in consulates and on Armed Forces bases.
The legislative consent Motion concerning the Bill which the Northern Ireland Assembly agreed on 24 June does not cover Clause 13 or Schedule 6. In light of the terms of that legislative consent Motion, these amendments amend the extent provisions of the Bill so that the relevant provisions which would fall under the Northern Ireland Assembly’s legislative competence do not extend to Northern Ireland. The effect of these amendments is that opposite-sex and same-sex couples marrying under the law of England and Wales in consulates and on Armed Forces bases overseas will be married under new procedures to be introduced by an Order in Council to be made under Schedule 6. These new procedures will also apply to opposite-sex couples marrying under the law of Scotland, and in due course to same-sex couples as and when the law in Scotland is changed to allow them to marry.
However, couples marrying under the law of Northern Ireland will marry under the existing legislative framework; namely, the Foreign Marriage Act 1892. This will mean that those officiating in marriages overseas will have to operate two distinct systems when conducting marriages depending on whether they are marriages under the law of England, Wales or Scotland on the one hand, or the law of Northern Ireland on the other. While this will add to the complexity of the system, it is a consequence of the Northern Ireland Assembly not having given legislative consent to the relevant provisions in the Bill, and so to be consistent with the convention we must make amendments to reflect that.
Perhaps I may turn to government Amendment 106 in this group. It is a technical amendment which provides for the definition of “England and Wales legislation” used in the Bill also to be applied to the Marriage Act 1949. The amendment inserts an interpretation provision for the definition into that Act. Finally, government Amendment 125 is minor and technical. It adds the definition of “superintendent registrar” to the list of defined expressions already set out in Clause 17(2). This is necessary for completeness.
I commend these amendments as they will improve the Bill and I hope that your Lordships will feel able to support them.
Amendment 93 agreed.
Clause 14 : Review of civil partnership
94: Clause 14, page 13, line 13, at end insert—
“(1A) The review under subsection (1) must deal with the case for amending the criteria in the Civil Partnership Act 2004 which define the eligibility of people to register as civil partners.
(1B) The review must in particular consider—
(a) the case for extending such eligibility to—(i) unpaid carers and those they care for, and(ii) family members who share a house,provided that they have cohabitated for 5 years or more and are over the age of eighteen, and (b) the case for creating a new legal status that would confer all the benefits of civil partnerships upon those mentioned in paragraph (a) without amending the criteria for eligibility for civil partnership.”
My Lords, my noble and learned friend Lord Lloyd, the noble Baroness, Lady O’Cathain, and the noble Lord, Lord Cormack, have added their names to this amendment. I will not repeat the arguments that I made in Committee save to remind your Lordships that I am seizing this opportunity, which has presented itself in no other Bill or foreseeable Bill, to extend the hand of equality and a glimmer of hope of support to the thousands—mostly women; this could be a gender issue—of people who are siblings and have lived together for many years. I also want to help carers, who are often but not always family members, where the younger people have cared for the older ones for many years, but who then find themselves in a bad situation when the older ones die. We now have a chance to recognise and assist them through the study which the Government have already committed to carrying out in the context of civil partnerships.
It was admitted in the European court in Strasbourg that the situation is discriminatory, but it was held that the Government were justified in this discrimination because they had placed the advantages of marriage firmly in one area and nowhere else. The justification for the discrimination that exists against people living together in a co-dependent, supportive and loving arrangement has gone. The Berlin Wall of marriage has come tumbling down and there are others who are coming out who need our help and support in the name of equality.
This is not merely about money, albeit that a great deal of time has been spent on financial arrangements and pensions in the past few days. It is not just about money—it is about the advantages conferred by marriage and civil partnership and, shortly, same-sex marriage. That means the right to live in a home, pensions, medical consent, responsibilities and rights in relation to children and many other rights and obligations attaching to that status.
If noble Lords read the amendment carefully, they will see that I am not pressing for a change in the law in this Bill; I am merely asking that the Government study the situation when they undertake a review of civil partnerships, as they have pledged to do. I cannot imagine anyone hard-hearted enough to block this, although I gather that the Government are not sympathetic, and I fail to understand why. Certain objections to this amendment were voiced at Second Reading and in Committee. The opponents of same-sex marriage argued a while ago that its existence would undermine traditional marriage. This was stoutly denied by, inter alia, the noble Baronesses, Lady Royall and Lady Barker, and the noble Lords, Lord Marks and Lord Alli. Why, they said, should recognising the existence of one union have any impact, let alone an adverse one, on another, causing the older union to be less respected or more fragile? Their arguments were, and are, persuasive. If recognising same-sex marriage has no impact on heterosexual marriage, then recognising a union, contract or arrangement of some sort for siblings and carers likewise can have absolutely no impact on same-sex marriage.
I am not arguing for an exact same union—far from it. The amendment suggests that a formal contract or union could be established which in no way detracts from civil partnerships as they exist now and has no religious connotation or connection. For example, in France, a pacte civil de solidarité—known as “PACS”—exists for some heterosexual couples and same-sex couples; it has most of the advantages and status of marriage, but can be terminated very readily by a letter from one to the other or by a marriage entered into by one of the two. It is popular. It presents a model for adaptation.
The noble Lord, Lord Alli, argued in Committee that lending a helping hand to siblings and carers would devalue civil partnerships. I said then, and I repeat, “I do not get it”. Not only do I not understand the fears and what seems like protectionism of those able to succeed in achieving a same-sex marriage, I cannot understand the logic. There are no limitations on equality; it is not rationed. We can all have it. There is enough to go round. It is not a situation where equality for some means nothing whatever left for others. On the contrary, those who make the case for equality in unions, even with the very small differences that we have debated in the past few days, ought to be generous to others. This is simply a study, and to deny to others what they seek for themselves sets an unfortunate precedent.
Love and commitment come in many forms, not necessarily with sex, as has been pointed out. Ordinary people will recognise the love and care that some family members—if only there were more of them—give to each other and will find it incomprehensible to treat them as less deserving or inferior when the opportunity, which may come once in a generation, presents itself to study their situation in this Bill.
In Committee, the noble Baroness, Lady Farrington, was worried about incest. That is extraordinary. My amendment refers to people who have cohabited voluntarily for more than five years and are over 18. It cannot be seriously suggested that two sisters, or a father and daughter, who are already living together in a co-dependent household and taking care of each other, are guilty of incest—a punishable crime. The length of cohabitation referred to in my amendment also answers the argument that family members might be forced by others to enter a union. It will be their free choice, because what I am suggesting will come about only if those people had already been living together for a long time. In any case, duress vitiates contracts and marriage in English law.
As I said, if the Government study the situation and decide that these people need help, whatever they come up with need not be called a civil partnership—I am certain it would not be. It might be called a family contract, for example, and be terminable by letter or by the marriage of one of the two. There is nothing wrong with that. If one of two siblings or carers gets married, that is a very happy outcome and their rights and obligations will lie elsewhere.
If noble Lords support this amendment, it will show that we take equality, love and commitment seriously for all and do not confine it to groups which have attracted support. It will show that we all look out for each other, including for our citizens who are taking care of each other, and that we want to grant them all the equality that they need, as enshrined in the European Convention on Human Rights and our own Equality Act. Equality for one person in no way detracts from the equality of another. As I said, the Berlin Wall that once existed to separate marriage from all other unions has fallen. To mix my metaphors, those who are achieving equality should not pull up the ladder behind them when the opportunity presents itself, as it does today, to extend support—or at least to inquire into the need for support—to those others. The debates on the Bill have proved an epiphany. There is no ration of equality and no limit on respect. I beg to move.
My Lords, I have my name on this amendment and am delighted to support it by speaking briefly. The noble Baroness, Lady Deech, has spoken, as she did last time, very eloquently. All I wish to add and to say to your Lordships is that a review is to happen. If that commitment had not been made, it could have been argued that this amendment was an intrusion and that it was not appropriate or fitting to debate it during the course of this Bill. However, the Government gave this undertaking in another place and, if the Government are to have this review of civil partnerships and attendant matters, then it is surely right, as the noble Baroness has argued so forcefully, that these other relationships should be taken into account. In the name of equity and in the name of decency it is right that your Lordships’ House should say, “Please include these relationships in the review”. That is all that we are asking. We have no guarantee what those who conduct the review will finally determine, but to exclude this from their terms of reference would be entirely wrong and I beg your Lordships to support the very sensible and extremely modest suggestion that the noble Baroness has made.
My Lords, my name is also attached to this amendment. In my speech in Committee, I gave two examples within my own experience of couples whose cases ought to be considered in the forthcoming review. One was the former Bishop of Lewes, who shared a house with his sister for many years until his death; and the other was a man, living in our village, who was paralysed many years ago in a riding accident and has been looked after ever since by a young friend of his. My noble friend Lady Deech, in moving the amendment, made it clear that she was not asking for a change in the law now and not even asking for a new review. There is already going to be a review, as the noble Lord, Lord Cormack, has pointed out.
Under the Bill as drafted, Clause 14 states that the review can consider,
“other matters relating to civil partnership”.
It seems to me, therefore, that, on the ordinary meaning of those words, it is for those who oppose this amendment to say why those other matters should not include the two cases that I have mentioned, the case of the sibling and the case of the long-term carer, both of whom are covered by this amendment. The point that there is to be a review anyway was made by the right reverend Prelate the Bishop of Ripon and Leeds in Committee, and it was echoed by the noble Lord, Lord Pannick. Since other matters will be considered in that review relating to civil partnership, this seems to be the ideal occasion to consider the points which everybody agrees are worthy of consideration.
What are the objections to the amendment? I start with the objection raised by the noble Lord, Lord Marks, who I am sorry to see is not in his place. He said that accepting this amendment would,
“undermine the whole notion of civil partnerships, which are about loving relationships between people living together as couples”.—[Official Report, 24/6/13; col. 535.]
So far, no one could possibly disagree with that. However, he went on to say that such relationships must, to be within the meaning of civil partnership, be sexual relationships. Where does he get that from? As far as I know, nothing in the 2004 Act confines civil relationships to sexual relationships. Why should civil partnerships not include the sort of platonic relationship that the noble and learned Lord, Lord Mackay, referred to in the debate on Monday?
The noble Lord, Lord Elystan-Morgan, argued that non-sexual partnerships might not come within the Long Title of the Bill; but why not? It refers only to “civil partnerships”, not partnerships of a particular kind.
The noble Lord, Lord Alli, argued that to include carers would inhibit the further development of civil partnerships to a point where they might be blessed by the church. This, he said, would not be possible if civil partnerships included carers. Surely it would not be beyond the wit of the church to devise a method by which it would bless some civil partnerships but not others, so why should the whole notion of civil partnerships be devalued just because this amendment is accepted?
As the Minister said, the argument advanced by the noble Lord, Lord Alli, was just the sort of argument that should be considered when the review takes place, and I agree. I can understand why the noble Lord, Lord Alli, desires that civil partnership should continue to develop in the way in which he wants, but why should he stand in the way of civil partnership being developed in the way in which we want, which would include siblings and carers?
Finally, in objecting to the amendments, the noble and learned Lord, Lord Wallace, agreed with the argument of the noble Lord, Lord Marks, and I say no more about that. He said that it would undermine the current understanding of a civil partnership—but why? I hope he will explain that further. Secondly, he said it would be difficult to cover the case of the siblings because of the rule about consanguinity. It would lead to the legitimisation of relationships that are currently prohibited. I would give the same answer to the noble and learned Lord as he gave to the noble Lord, Lord Alli: that is just the sort of matter that should be considered when this review takes place.
As we know, the review is going to take place. I hope that the Minister will accept this amendment and allow these matters to be considered in that review.
My Lords, I, too, support the amendment. I will make two points, picking up on what the noble and learned Lord, Lord Lloyd of Berwick, has said.
First, if both spouses are in agreement, consummation is not a necessary part of marriage. You can perfectly well have a platonic marriage throughout the entire period of that marriage. Consequently, that point goes. Secondly, the Government have opened the door. Okay, it was a deal done in the House of Commons, but the door is actually open under Clause 14, which states that:
“The Secretary of State must arrange … for the operation and future of the Civil Partnership Act 2004 in England and Wales to be reviewed, and … for a report on the outcome of the review”,
“Subsection (1) does not prevent the review from also dealing with other matters relating to civil partnership”.
That absolutely opens the door for the amendment that the noble Baroness has put forward. I find it very difficult to understand why it cannot at least be considered.
My Lords, as an example of the category of person that the amendment is intended to cover, I support it.
Having lived for some 30 years in a shared household with my sister—a jointly owned home, with shared management and payment of household overheads, and the commitment of a happy family relationship, sharing everything but sex—it is therefore disappointing to find that the ties of blood and family love are less important than other bonds, and that the concept of equality does not cover this.
Sadly, my sister died three years ago so I gain nothing personally from this, but others can. I therefore fully support all that the noble Baroness has said in moving this amendment so clearly and helpfully, and I trust that your Lordships will give it very sympathetic consideration.
My Lords, I listened carefully in Committee to the arguments why sisters, brothers, fathers, sons, mothers and daughters should be allowed to have civil partnerships, and I will try to address some of the issues raised by the noble and learned Lord, Lord Lloyd of Berwick.
First, on the development of civil partnerships in terms of religious organisations, I set out in Committee why I believe that the gap between where we are today and same-sex marriage is too big for many churches to make in one step. I believe that I will see a day in the not too distant future when civil partnerships will be celebrated in churches. If we were to broaden civil partnerships beyond the scope that they have today, we will endanger that.
This amendment would also, via the civil partnership review, extend eligibility for civil partnerships to unpaid carers and those whom they care for. I am very confused about this. I do not understand what prevents that happening today. If you are a carer and are of the same sex, you can have a civil partnership today. If you are opposite-sex, you can have a civil marriage. We do not inquire into the nature of either of those institutions. All the benefits that the noble Baroness, Lady Deech, asked for, and all the benefits that the noble and learned Lord, Lord Lloyd of Berwick, wanted are available. So for unpaid carers, the notion being asked for exists and can happen today. The issue therefore boils down to brother, sister, father, son, mother and daughter.
I have the same answer for same-sex marriage and opposite-sex marriage. We do not ask that question; we just do not. We say that if you say you are married, you define the nature of your own marriage. The state intervenes only in the breakdown of that marriage, when you cite the grounds for your divorce and can choose adultery or unreasonable behaviour. It is the same for civil partnerships. However I understand that, like marriage, the majority of civil partnerships start with a sexual component. That must be broadly understood.
I have two principal objections to the proposition of the noble Baroness. The first is about the nature of the relationship in a civil partnership. The noble Baroness seeks to use the civil partnership to review the Government’s tax and inheritance law. That does not deal with the nature of civil partnerships as I understand it. They were devised and brought into being to recognise a loving and—I accept this point—in most cases, a sexual relationship, between two individuals of the same sex. It was devised to give those sexual relationships a status in law, but not exclusively sexual. In many cases, it gave them the same benefits as married couples. It specifically excluded relationships that were exempted from marriage, such as mothers, daughters, fathers and sons, brothers and sisters.
Because of my personal view of civil partnerships—which is probably the view of the majority of people in this country—the very notion of giving access to civil partnerships between family members is the same as giving access to marriage to a brother and a sister, a father and a son, and a mother and a daughter.
The fact is that there is to be a review. That is not in doubt. What possible exception can the noble Lord take to those who are conducting it looking at the relationships mentioned by the noble Baroness in her speech? As I said in my brief remarks, the review may come to the conclusion that they should not be included, but why does he want to stop these relationships being considered by the review?
I thought I was giving three reasons. My first was about trying to get the churches to take a step and view civil partnerships as part of that transition, where they can recognise the stunning relationships between a man and a man and a woman and a woman without having to cross the line into marriage. The second, which I believe the noble Lord seeks, already exists for unpaid carers. They can enter a civil partnership in which they are the same sex. They can enter civil marriage and get those benefits. The third is that—
The third component is the one I was coming to, about the nature of the relationships in civil partnerships. I do not view civil partnerships as a financial transaction between two people. As I said, they are based, initially but not exclusively, on a sexual relationship between two same-sex people. That sexual relationship, which often mirrors marriage, forms the basis of it. I know—actually I do not know—that your Lordships do not like talking about sex but sex is part of the foundation of marriage as it is the foundation of civil partnerships. For that reason, for me, civil partnerships are akin to marriage. The thought that a father could marry a son, a mother marry a daughter or two sisters or two brothers marry—substitute the phrase “civil partner”—is what makes it feel wrong. Civil partnerships make it feel like a relationship that should not be allowed. I do not question the sincerity of the noble Baroness, Lady Deech. I believe she sees this as a piece of paper that brings a financial benefit.
This amendment is one part of a process. It should be up to the Government of the day to decide on their inheritance tax policy. The Chancellor and the Treasury set out and have a well documented process for consultation. I said in Committee—and in 2004 to the noble Baroness, Lady O’Cathain—that I, like many, think the current inheritance tax is unfair, particularly when it comes to family homes. I would be in favour of inheritance tax being paid on the death of the second or third survivor so the Treasury would suffer only a deferral of inheritance tax. But that is not a discussion for this Bill. It is a conversation to be had with government. I assure the noble Baroness that I will write to the leader of my party and advocate a change in policy to reflect that. I hope the noble Baroness understands why I do not support the amendment. We debated it in 2004 and the arguments have not much changed. However, the experience of civil partnerships might have helped the noble Baroness understand why this amendment could be seen as hurtful to those people who value their civil partnerships in a different way.
Finally, I risk the groans of the House by saying that in the intervening years since 2004 I have not noticed a single amendment tabled to another Bill to push this very point. Plenty of other Bills going through the House could have addressed it, including the Care Bill going through the House as I speak. I hope the noble Baroness and those who support this amendment will forgive me if I see it and the intervening nine years and ask: why now and not at any time over the past nine years? Whatever the reason, this is neither the time nor the place for civil partnerships to be used as a means of dealing with inheritance tax. I hope that the noble Baroness can recognise that and will withdraw her amendment.
I am sorry to interrupt the noble Lord. He said that the noble Baroness moving the amendment is to some extent motivated by the need to provide the financial benefits. That is not my reason at all. Of course, there will be financial benefits, but my reason lies far deeper than that. Civil partnerships should be available to the people covered by this amendment.
I understand that. However, the noble and learned Lord is trying to break the notion of civil partnership as we understand it. I say to him that the issue of the churches being able to bless civil partnerships should be taken on board when considering the labour laws.
My Lords, the noble Lord, Lord Alli, raises the standard of debate on this issue. We on these Benches have enjoyed his contributions and deeply appreciate his commitment and share many of the things that he wants to achieve. However, just as he sometimes disagrees with me, I am going to have to slightly disagree with him over this. I do not know what the Church of England will do about services of dedication or blessing in relation to same-sex marriages. It is not entirely clear to me that extending civil partnerships to other dependent relationships might not actually increase the likelihood that the church would be able to move in this area. It is arguable both ways. Indeed, if you have two people whose lives are intertwined in a sort of covenantal way, as the amendment of the noble Baroness, Lady Deech, indicates, they may well want some sort of blessing or dedication upon that interdependence, without the sexual relationship.
The issue for me is partly that when civil partnerships were introduced, they mirrored marriage too much. Many people on these Benches were in favour of legal arrangements to support and protect in every way people whose lives were interdependent. We had a problem precisely because it was all narrowed down too much, to same-sex couples. There has, however, always been support from these Benches for a proper legal arrangement to support people whose lives, for one reason and another, are interdependent.
Moving on, we have not heard the word “justice” mentioned much, although the noble Lord referred to the situation as being “unfair”. There is a deep issue of justice here, across our society, which, given what the equal marriage Bill is trying to achieve we ought at least to acknowledge.
Another issue has not been mentioned at all so far. In our society we now have an increasingly diverse range of family structures and patterns. Allowing some form of legal support between people who find themselves not in marriage, and not wanting to be civil partners in that sense, would have a deep civilising effect upon society. We have a lot of single parents now. Maybe a single mother is bringing up one child, and that child may not marry. They may find themselves sharing a home as they have done since that child was a baby. We have increasingly diverse patterns of family life. Something ought to be there to provide support and, indeed, blessing in every sense for those who find themselves in that situation.
I hope that the review of civil partnerships will be able to look at the issues which are specified in the amendment. Certainly, I, in those terms, would be delighted to support the amendment.
My Lords, the noble Baroness, Lady Deech, referred to me by name. The issues that various noble Lords have raised, particularly those just raised by the right reverend Prelate, are incredibly important: the diversity of family patterns and the circumstances in which people find themselves. Personally, I would like to debate and look in particular at the role of carers—the relationships they form with other members of the family or, in the example given by the noble and learned Lord, Lord Lloyd, someone for whom they assume a responsibility because of the way they feel about that person. I would be delighted to debate that issue, not even in a review, but now. I have waited for a long time, because during the civil partnerships debate in your Lordships’ Chamber the issue was raised quite frequently. However, I do not believe that this is the vehicle for doing that.
The noble Baroness, Lady Deech, referred to “cohabiting”. If you ask the average person in the street the meaning of that word, you will get a variety of responses. If you ask a councillor, they would think of somebody who is claiming that their benefit in the past has been withdrawn because of the nature of their relationship with somebody in the house. These are complex issues. They need seriously to be developed, in the right way and at the right time. I fear that this is exactly the wrong time. If you ask anyone outside your Lordships’ House, including a boy of 12 to whom I spoke, this is about marriage and for people who wish to get married because they love each other in a particular way. I hope that all noble Lords will resist the temptation to tackle the subject of this amendment at the wrong time and in the wrong place.
We are not seeking to determine it this afternoon. We are merely asking that those experts, presumably dispassionate, and in whom we can all have confidence, should look at this and make the review a little more comprehensive than is at present envisaged. That is all we are asking.
My Lords, the noble Lord, in speaking in support of this amendment, has got exactly the right wagon but is seeking to attach it to the wrong train, which is going to the wrong place. I absolutely agree that this issue must be dealt with. However, I do not believe that noble Lords who have spoken are actually saying that they think the Bill is about anything other than same-sex marriage. Therefore, I hope that noble Lords will find another vehicle to attach their wagon to, in which case I, too, as my noble friend Lord Alli said, will be their supporter.
My Lords, as somebody who once drove teams of horses with wagons behind them at a competitive level, may I be allowed to make a very small interjection? Although my name is not on the Marshalled List, as there was no room for it, I support my noble friend Lady Deech. I cannot add anything to the power of her argument or to the impeccable logic that she showed when she advanced the amendment.
The words “equity” and “decency” have already been used in support of this amendment. I would add “generosity”, “compassion” and certainly “appropriateness”. As she has already said, this amendment seeks to correct a prior-acknowledged discrimination. It asks the Government only to consider this within the terms of a review—not to change the Bill but simply to cause the review panel, the review body, to look at this issue. I was not in your Lordships’ House when the matter was debated eight or nine years ago. However, I have been told by many noble Lords whom I respect that there have been many attempts to try to couple this issue on to the appropriate wagon or stagecoach, and it has not been found. Here is an opportunity for us to do that. It will not get in the way of the current Bill. I certainly do not intend to do that, and I am quite sure that my noble friend does not, either. The time is right for a review, and if my noble friend presses her amendment, I will vote in favour of it.
My Lords, when discussing previous amendments in Committee and on Report, much was said about teachers being required to teach the law of the land. I do not envy their task, as the law regarding different personal relationships has become rather complex. That was best exhibited by the exchange just now between the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Alli, about whether civil partnerships are a sexual union. I have friends in civil partnerships who, when they went to the register office, were separated and asked questions to ensure that their relationship was sexual. Although these matters need clarifying, I shall state my understanding of the situation.
Opposite-sex marriage is understood to be a sexual relationship because it can be ended by annulment and by divorce on the grounds of adultery with a member of the opposite sex. Civil partnerships are same-sex and, for the reason I outlined, treated as sexual, but there is no annulment. Platonic friends can marry if they are of opposite sexes or of the same sex, but the lack of annulment for same-sex marriage may lead the institution to develop very differently. I agree with the right reverend Prelate, who stated what the position is in modern Britain. The demographics of our country are changing rapidly. In the 2011 census, 29% of UK households were single-person—not single-parent—households. The fact that two people can live more cheaply than one is becoming increasingly important with rising living costs, poor returns on private pensions, and high housing costs.
We could end up seeing someone who wants to say to their best friend, with whom they share a house, “You can depend on me. I am your first port of call”. The commitment would be not merely financial, or about inheritance tax, or being one household for the purpose of benefits. With an ageing population, the Government should be pleased if this kind of development occurred under the same-sex marriage Bill.
Of course, that analysis means that carers, as outlined in the amendment, can already marry and gain the financial benefits outlined. If we were to see such a cultural development, the injustice to family members would be even more apparent. One might even see deeply religious people of the same sex who currently oppose the Bill getting married, if same-sex marriage develops in our culture in the way I outlined. That kind of development might even make it easier for marriage to be used mischievously for immigration purposes. We just do not know.
The amendment would give clarity and direction to this review. The review would give the Government time, which they have not had with such a speedy legislative process, to look at the whole legal relationship landscape.
I noted the comment of the noble Lord, Lord Alli, that it feels wrong to him. It was a very subjective, post-modern comment. It feels wrong to me to close down the area of discussion that a review would enable. If it was so wrong to put this wagon or coach on these horses, the amendment would not have been allowed on to the Marshalled List.
I support the amendment, because it would be unjust if everyone—and I mean everyone—except family members would be able under our law to promise a lifelong, non-sexual commitment or dependency.
My Lords, I oppose the amendments in this group. It is disingenuous of those who tabled and support them to suggest that those who do not see the purpose of them are being hard-hearted. I was shocked to hear lawyers who have spent their lives in the law not recognising the implications of extending a law that is essentially about marriage, or a commitment to a sexual relationship—that is what it is about—and imagining that a civil partnership between a father and daughter, or a brother and a sister, should be blessed, as was even suggested, and that it may come to that because of the great multiplicity of relationships that there are. I cannot believe that I heard senior lawyers endorse this. I can only believe that they did so because they want to dilute the purposes of civil partnerships.
The point of my opposing the suggestion that that should even be considered in the review is that we know that it will continue the debate that has taken place in this House over the past weeks, and because it is intended to undermine the Bill, the purpose of which is to end discrimination against gay people. The Bill is about civil rights. The right reverend Prelate on the Bishops’ Benches suggested that this would all be about recognising important relationships that are somehow on a par with a couple who choose to be with each other because of their sexual attraction to each other, their love for each other and their desire to stay together. I cannot imagine that the church would think that that was a good thing.
I cannot imagine it because we know that this is about choosing a partner whom you intend to be with. It is about the yearning among human beings to choose someone as your love, to be with your beloved and to share your life with them. That is very different from the relationships between brothers and sisters, and fathers and daughters. We should think of the implications of a civil partnership being extended to a father and daughter. Are we going to put an age limit on it? Is the father going to be able to enter into such a civil partnership with his 22 year-old daughter, or his 18 year-old daughter? We have to be conscious that this is yet another way of trying to scupper the Bill. The intention is to continue the debate and the argument long after the Bill has passed. Therefore, I urge everybody who cares about making sure that there is an end to discrimination towards gay people in this nation to vote with those who are against the amendment.
As my noble friend pointed out earlier in the day, we are on Report, so the only basis on which we are allowed to speak twice is if we are asking a specific question of the person who is speaking. The right reverend Prelate has already spoken.
The guideline is that a Member is allowed to explain himself on an important point. That is what the guidelines say, and that is all I wish to do. I want to make it clear that I do not wish to extend civil partnerships as they are now to the sorts of relationships that are in the amendment. Clearly, if family relationships and carer relationships came into civil partnership, it could change the nature of civil partnership. I understand that that would be within the terms of the review.
I will respond very briefly to the right reverend Prelate. Over the weeks I have listened to people of strong religious faith saying that extending marriage would undermine a social institution. What could undermine the social institution of committed sexual relationships more than the idea of fathers and daughters entering into a contractual partnership? If we care about social institutions, we should recognise that that would be a good way of undermining them.
My noble friend is coming to the view that a review will come to a certain conclusion. We do not know what conclusion that review will come to. The question is surely that we know that under Clause 13—and this was a fairly late addition by the Government—there will be a review of civil partnership. We also know, under Clause 2, that it does not prevent the review also dealing with other matters relating to civil partnership. Are those who are against the amendment suggesting that the review should be stopped from dealing with those matters?
Part of our problem as politicians—or Members of this House, who may not consider themselves politicians —is that we face this disconnect between what we are doing here and public opinion. In my own judgment, having served 30 years in the other place, public opinion would consider this an important matter. When faced with the sort of examples given by the noble and learned Lord, Lord Lloyd, and the noble Baroness, Lady Hooper, they would say that there is a certain injustice in this matter. We remove ourselves from this view of justice coming from public opinion if we say that it cannot be included in the review, which, if it was able to look at this, might say that it was not properly within its terms. I do not know what the Government consider to be the specific terms of the review, or whether they will define what the review can or cannot do. On the face of it, the review will be able to deal with such matters, and may reject them. But public opinion and most of us would say that these are important matters, which deserve to be dealt with and may be dealt with by the review, which may say that it is not properly within its purview or that it is not something that should be dealt with at all.
In my view, it is proper for the review to deal with that matter, under the terms of the clause, and I look to the Minister to say in terms whether the Government recognise that this is a problem. Do the Government recognise that the examples given by the noble and learned Lord, Lord Lloyd, and others refer to something that is considered unjust by a great number of people in this country? If so, even if the Government try to remove this from the review, will they deal with it in some other appropriate way?
I have listened to and taken parts in these debates ever since the noble Baroness, Lady O’Cathain, first raised them during her then opposition to civil partnership. There remains one point that is fundamental to this discussion and which has never been answered properly by those people who have advanced them, such as the noble Baroness, Lady Deech.
The rights and responsibilities of adults who voluntarily enter into relationships with other people are wholly different from the rights and responsibilities of family members—people born into the same family. If we were to treat them in the same way, as is achieved in the noble Baroness’s amendment, it is wholly possible that a member of a family could find themselves under an obligation to a family member to enter into a relationship, in particular to preserve the right of the family to property. That sets up some potentially damaging and ugly relationships within families, which is a consequence of what she proposes which she would really not like to see come to pass.
To answer the noble Lord, Lord Cormack, I do not think that that potential should enter into law and I do not think that it should form even part of any review. Therefore, I wish today to make that statement as strongly as I possibly can; I shall vote against this amendment and do so in the knowledge that there are people who will support me in supporting carers in a whole variety of different ways, which are wholly appropriate and far better than this.
My Lords, I find this a much more difficult issue than all noble Lords who have spoken so far. There are very strong arguments on both sides of the case and I very much hope that noble Lords on each side would recognise that.
My reason for speaking is that I spoke in Committee in favour of this amendment, and I am in a very unusual position in that the debates that we had in Committee on this issue have actually caused me to change my mind. The reason I have changed my mind is because I think that there is a very real injustice done to the people for whom the noble Baroness, Lady Deech, has spoken, but I am not persuaded that this is an appropriate vehicle by which this injustice should be addressed. The noble and learned Lord, Lord Lloyd of Berwick, says, sotto voce, “Why not”—and I will tell him. The purpose of the review is very simple; it is to assess whether the existing civil partnership regime, which is part of the law of the land, continues to serve a useful purpose now that we will have same-sex marriage. That is a very narrow purpose, and I do not think that it is appropriate that a review should consider whether a civil partnership should be used as a means to address a very real injustice which, if it is to be addressed, should be addressed through the taxation system and other means. That is why I have changed my mind and why I much regret that I cannot support the noble Baroness, Lady Deech.
My Lords, this amendment would seek to extend the civil partnership review to include unpaid carers and family members who live together. I am just going to read the amendment, because of the discussion that took place between my noble friend Lady Kennedy and the right reverend Prelate. It refers to,
“unpaid carers and those they care for, and … family members who share a house … provided that they have cohabitated for 5 years or more and are over the age of eighteen”.
If that does not mean fathers, daughters, sisters and brothers, I am not quite sure what it means. So I think that my noble friend had a point in her indignation about that matter.
The problem before the House has been very adequately explained by various noble Lords. This is an issue about legitimate support for carers and the protection of people, sisters and brothers, growing old together and sharing a home, who require a new regime that protects their interests in their home and all the other things. That is to do with carers, tax and inheritance, and it is to do with compassion and the other issues that noble Lords have mentioned. But it is not appropriate to use those words—in terms of pulling up ladders, and so on—in this Bill.
This review is about civil partnerships, as explained by the noble Lord, Lord Pannick. I am not going to read out my note, because he said it much more eloquently than I could.
It is proposed by the noble Baroness, Lady Deech, that the review should deal with,
“the case for amending the criteria in the Civil Partnership Act 2004”.
Is my noble friend suggesting that the criteria themselves should not be amended in any way? What would she suggest should be the criteria employed by the review? Will we seek to limit what it can review?
The noble Lord, Lord Pannick, very adequately, concisely and accurately explained exactly what the review is about.
The point is that the claims that the noble Baroness has explained to us are legitimate. As my noble friend Lord Alli said, the last time I heard the noble Baroness speak with such passion about these issues, apart from in Committee on this Bill, was during the passage of the Civil Partnership Bill.
In the mean time I can recall at least two carers Acts put forward by my own Government. There was the free personal care Bill, and there have been numerous discussions about finances and inheritance tax. Although we may not necessarily discuss those matters in this House to conclusion, certainly there are plenty of Members of Parliament in the other place who can and could put down amendments. I would be more sympathetic, perhaps, if I thought those things had happened, but they have not. My noble friend Lady Kennedy is right when she says that you have to question the purpose of this amendment when all those opportunities have been missed. We ask the noble Baroness not to press this amendment but if she does I will be voting against it.
My Lords, I thank the noble Baroness, Lady Deech, for moving the amendment and the other noble Lords who have put their names to it. It would amend Clause 14, under which the Secretary of State will arrange for the operation and the future of the Civil Partnership Act 2004 in England and Wales to be reviewed. The amendment requires the terms of the review to be extended to consider first, the case for enabling carers and family members who live together to register civil partnerships and secondly the case for creating a new legal institution to give carers and family members the same benefits as couples in a civil partnership.
I recognise, as we did in Committee, that many views have been expressed very passionately. I listened in particular to my noble friend Lady Hooper, who made an important contribution to this debate arising from her own circumstances. I agree with the noble Baroness, Lady Thornton, that, in many respects, the issues that have been raised about inheritance or the rights to have a say, for example, about funeral arrangements or related matters are issues in their own right. I will say more later about whether there has been a clamour for them, but my principal position is that this is not appropriate for a review of civil partnerships.
First, there is the issue of the nature and purpose of civil partnerships. They were designed to provide rights and responsibilities akin, to use the word of the noble Lord, Lord Alli, to those of marriage for same-sex couples. I note that the right reverend Prelate the Bishop of Chester thought that they possibly mirrored marriage too much. I think he said that was the view when they were brought in. These rights and responsibilities were provided because under the Civil Partnership Act people were unable to marry because they were the same sex. As civil partnerships are akin to marriage they have a formal means of entry and exit. They have imported the prohibited degrees of affinity parallel to those in marriage law. They have similar rules governing deathbed civil partnerships and financial and property arrangements.
I believe that seeking the extension of civil partnerships to family members is tantamount to seeking to allow marriage between close family members within the prohibited degrees of affinity. We have decided as a society that it is undesirable for close family members, such as siblings or a parent and child, to marry. I accept, as the noble and learned Baroness, Lady Butler-Sloss, said, that the issue of procreation does not always arise, such as in a marriage between a man and a woman who are both pensioners. Nevertheless, they can still bring great companionship to each other. No one questions that that devalues that marriage or the concept of marriage in any way. However, we would not think it right for even a brother and sister over the age of 60 to marry as over generations our society has said that is not appropriate and not right. Even where procreation is impossible, that is not something that should happen.
My noble friend Lady Berridge said that she had heard of situations where couples had been separated and questioned about a possible sexual relationship. I suspect that couples being separated before they can marry is in certain cases intended for the prevention of sham civil partnerships. A couple have to have a face-to-face meeting with a registrar where the registrar takes notice of the marriage and needs to assure him or herself that they are indeed a genuine couple who actually know each other and that it is not a sham civil partnership for immigration purposes. It is not to ensure that there is a sexual relationship between them.
Regarding carers and those they care for, there is, as the noble Lord, Lord Alli, pointed out, nothing in general to prevent them marrying or entering into a civil partnership at present. The noble and learned Lord, Lord Lloyd of Berwick, referred again to the man who was paralysed after a riding accident and his younger carer. I am sure that, in personal terms, that is a very real relationship. As I understand it—I think that it was said in an earlier debate—the younger carer was male as well. There is nothing in the law as it stands at present as to why they cannot enter into a civil partnership. It would be wholly wrong and inappropriate to speculate why they have not. There may be many cases of carers up and down the country where a civil partnership has not proceeded because they do not feel that that is right because of the way in which civil partnerships have developed or the origins of them.
As was discussed in Committee, the change would mean that couples would have to dissolve the civil partnership if either party wanted to marry or enter into a civil partnership with someone else from outwith their family whom they loved, with all the financial implications and legal and practical difficulties involved in a dissolution. That is why I believe that shoehorning such relationships into the existing regime of civil partnerships will not work. I listened carefully to the noble Baroness, Lady Deech, and she said that perhaps it could be ended by a letter or simply by someone going off and marrying someone else. That fails to understand what Parliament legislated for when it established the institution of civil partnership. It was an institution with a very formal means of entering into it and a very formal means of leaving it. I understand where the noble Baroness was coming from and why she was arguing that case, but what she was actually arguing for was not a civil partnership at all. Again, that is why we do not believe that this should take place in the review of the nature that we propose.
I accept, too, that not as much has been said in this debate about the financial benefits of inheritance tax. I salute those who argued the case for the extension of the review in Committee and quite openly and frankly talked about inheritance tax. It was commendable frankness. However, I do not think that treating civil partnerships as a vehicle for gaining tax or property benefits is appropriate. Indeed, it is disrespectful for those who enter into civil partnerships because of a mutual love, be it sexual or a desire for companionship. The noble Baroness, Lady Kennedy of The Shaws, put it very starkly about fathers and daughters, but as the noble Baroness, Lady Thornton, pointed out in terms of this amendment, that would indeed be possible in civil partnerships. However, there are other possible situations which could arise that underline that civil partnerships are not really intended for families. What do you do with two siblings caring for a mother—which of the two would form a civil partnership with the mother? What about two sisters and a brother living together? Who would form a civil partnership with whom? Imagine the contentiousness of the choice and the sense of rejection if one sibling were preferred to the other. Who would an elderly father living with two sons choose to form a civil partnership with? These examples illustrate that it is not appropriate.
The other issue is whether benefits equivalent to those enjoyed by civil partnerships should be made available to carers and other family members. The noble Lord, Lord Anderson, asked whether there was a clamour for this. There is no correspondence filling up the in-trays of my ministerial colleagues on this issue, and I rather suspect from the comments made by the noble Baroness, Lady Thornton, that the same was true for those who were in ministerial office before the present Administration. Since 2004, as far as we are aware, this issue has been raised only once during debates on the Finance Bill in the other place. I appreciate that in this House we cannot raise amendments to the Finance Bill. However, my information is that there has been only one such amendment, to the 2008-09 Finance Bill, tabled by the right honourable Member for Birkenhead, Mr Frank Field. Other than that, the issue has not been raised in an amendment. Carers UK—in a parliamentary briefing which I understand it did not circulate to parliamentarians but which I am happy to make available and put in the Library—said:
“In 2004 we reviewed an amendment to the Civil Partnerships Act”—
Bill, as it was then—
“as it was passing through the House of Lords, that carers should also be able to form a civil partnership. At that time, we foresaw a number of complex and difficult problems with this approach and did not feel it was the right way to solve the challenges that carers face. Our view remains the same in 2013”.
As my noble friend Lady Barker said, there are a host of other issues with regard to carers, some of which we are addressing in the Care Bill currently before your Lordships’ House, but I do not believe the way to tackle them is as proposed in this amendment.
The issue is whether these matters should properly be included in the civil partnership review. The argument was made—I say, prima facie, with some logic—that if we are going to have a review, this matter should be included. However, as I have said before, what is proposed is a fundamental change which is very different from civil partnerships as they were established and as they have developed. That point was well made by the noble Lord, Lord Pannick, who said that the review will examine the consequences of the Bill for the existing civil partnership regime—indeed, whether there is a need for the institution of civil partnerships following this Bill or whether they should be extended to opposite-sex couples. That is the proper remit of the review. I accept that other issues arise which have been very properly aired and which can be followed up in other pieces of legislation with regard to specific rights and responsibilities. However, it is not the purpose of the review to seek to transform civil partnerships from a legal union of a committed and loving couple into something which is very different in nature and has been described as simply a contract which you can get out of by writing a letter or marrying someone else. Therefore, although it was important to have this debate, I ask the noble Baroness to withdraw the amendment.
My Lords, the comments made by some noble Lords have revealed misunderstandings on their part. I did not have the privilege of being a Member of this House in 2004, but at that time the House passed an amendment that would have included siblings and carers within civil partnership. Having checked my iPad, I see that I raised the matter in 2008, 2009 and 2012, and in some of those years more than once. However, having studied the Care Bill, I did not see a hook on which to hang it. The amendment that your Lordships passed in 2004 was rejected in the other place and complications arose at that time. That is why an inquiry would be so apt. Civil partnerships were invented in 2004 and another form of union could be invented now.
It is not right to jump to the conclusion, as some noble Lords have, that this means that family members will marry each other or have a civil partnership. That is not the case at all. I seek an inquiry. There is, of course, no question of incest and, anyway, there is no prohibition now on siblings living together. I do not believe that the police go knocking on their door to see whether incest is taking place. Some carers do get married. We have all read of elderly gentlemen marrying much younger ladies who care for them, often to the dismay of family members who are worried about inheritance. Inventing a new covenant or contract would probably be much more acceptable. However, it would, of course, be a question of choice. We are not talking about marriage, civil partnership or incest but about an inquiry given that civil partnership is to be examined. The wording is broad enough to allow for this.
No matter what hopes may be expressed by the noble Lord, Lord Alli, on religious marriage in the future or on the future of civil partnerships, I cannot find it in my heart to stand in the way of a study of equality. Just because something else may happen in the future, how can we stand in the way of an inquiry into equality? As the noble Lord, Lord Pannick, knows, as he was counsel in the relevant case, the Strasbourg court said that the treatment of the sisters was discriminatory but could be accepted because in this country there was this rigid division between marriage and all other unions, which no longer exists. Therefore, the review is discriminatory. How can we say that this is not the right vehicle in which to examine the issue? That is not the way that this House normally treats questions of equality and justice.
It is not just an issue of finance or of money-grubbing; I listed many of the other advantages of marriage and civil partnership, only a few of which are financial. Moreover, same-sex marriage is likely to come about long before the proposed inquiry reaches any sort of conclusion. Therefore, the two will not impact on each other. We need a debate on this, as the noble Baroness, Lady Farrington, said, and here is the very vehicle for it.
The noble and learned Lord, Lord Wallace, assumed that there would be no choice in the matter and that people would be forced into these unions. That is not the case at all. I keep repeating this because it seems to be misunderstood: I seek an inquiry into an existing discriminatory situation. That is all the amendment calls for. The people I am discussing do not all have to be treated in the same way. One is not suggesting that an inquiry, even if it went the way that I would hope, would end up saying that sisters, fathers and children should be treated as if they were civil partners. That is something to be decided in the future. Although, as I say, this is not just about finance or property, let us not overlook the fact that many a marriage, certainly in the past, was most definitely about property, but I am not suggesting that that is the case today, or that this is about money. As learned Members of this House well know, various other statutes deal with tax and inheritance for people who live together.
I do not think that a matter of justice is ever inappropriate. We have talked about carers for years and years since I have been here. This is a chance to do something for them in an inquiry. I am getting letters from sisters. I do not know what to write back to them if this House rejects this opportunity, which may not come up again for years. How can I write to them and say, “The House was presented with your situation but decided that it was not appropriate even to look into it”? If this House sees discrimination, it should allow it to be looked at in an inquiry. That is all I am asking for. Therefore, I wish to test the opinion of the House.
Consideration on Report adjourned until not before 8.12 pm.
With your Lordships’ permission, I propose to repeat a Statement made in another place by my right honourable friend the Secretary of State for Business, Innovation and Skills. The Statement is as follows.
“Today, I have laid a report in Parliament announcing that the Government have decided to proceed with a flotation of Royal Mail shares on the London Stock Exchange via an initial public offering.
A sale will initiate the final stage of the Government’s postal sector reforms. The overarching objective of these is to secure the universal postal service—the six-days-a-week service, at uniform and affordable prices to all 29 million addresses in the UK, which is vital to the UK economy.
Over four years ago, the independent review of the postal sector led by Richard Hooper concluded that the universal service was under threat. The previous Government accepted the review’s package of three main recommendations but the Bill to implement them, which would have permitted a minority sale of Royal Mail shares, was withdrawn. In 2010, Richard Hooper’s updated report confirmed his initial findings and that a package of measures was needed to secure the universal service. Through the Postal Services Act 2011, we have implemented two elements of that package by establishing Ofcom as the postal regulator and taking on Royal Mail’s historic pension deficit.
As set out in today’s report, we will now implement the third and final element of the Hooper recommendations by selling shares through an IPO in this financial year. We will retain flexibility around the size of stake to be sold, as this will be influenced by market conditions, investor demand and our objective to ensure overall value for money for the taxpayer. It is our intention to dispose of a majority stake, taking into account shares sold and those allocated to employees. The IPO will include a retail offer to enable members of the public to buy shares on the same terms as the big institutional investors.
At the time of the IPO, the Government will allocate 10% of the shares to an employee share scheme. These shares will be free to eligible employees, recognising that many might otherwise find them unaffordable, and I want to strengthen employee engagement by ensuring that employees own a real stake in the business. Employees must retain their shares for at least three years, giving longevity to the scheme. Our scheme will be the biggest employee share scheme of any major privatisation for nearly 30 years. Eligible employees will also receive priority in allocation if they purchase shares in the retail offer. I would like to reassure employees that ownership change does not trigger any change in their terms and conditions. The CWU will continue to be their recognised representative, and employees’ pensions will continue to be governed by the trustees. As part of a three-year agreement, Royal Mail is also prepared to give assurances on the continuation of a predominantly full-time workforce, a commitment to provide and enhance existing services to customers using the current workforce with no change to the current structure of the company in relation to these services, and no additional outsourcing of services
Royal Mail is now profitable and its overall financial position has improved. This is partly due to the Government’s action so far. But considerable credit is due to the management and the workforce who have implemented a modernisation plan. The challenge now is to maintain this positive momentum. In recent history, Royal Mail’s core UK mail business has swung between profit and loss. In the 12 years since 2001, it suffered losses in five of those years and over 50,000 jobs have been lost. Resting on the current level of progress is not enough.
Under public ownership, there is simply not the freedom to raise capital in the markets. A share sale will not only give Royal Mail commercial disciplines, it will also give Royal Mail future access to private capital, enabling the company to continue modernising and to take advantage of market opportunities such as the growth in online shopping, building on its success in parcels and logistics. Recent estimates indicate that this market is worth £76 billion in the UK.
There are various myths that need to be rebutted. Contrary to what is being claimed, Royal Mail, after a sale, will still be the UK’s universal service provider. This includes services to urban and rural areas and free services for the blind. Only an affirmative resolution in Parliament can change these minimum requirements. Free services for the Armed Forces are entirely independent of ownership, and Royal Mail is fully reimbursed for these services by the Ministry of Defence.
Ofcom’s primary duty is to secure the provision of the universal service. It also has duties to promote competition where that benefits consumers. However—and let me make this absolutely clear—should the two duties be in conflict, it is the universal service that takes precedence. In March, Ofcom published a statement on its approach to end-to-end competition, making it clear that should a threat to the universal service arise from such competition it has the powers to take any necessary action. While Ofcom is clearly the most appropriate body to assess and react to such threats to the universal service, the Government, as a safeguard, have retained powers to direct Ofcom with respect to certain regulatory levers such as reviewing the financial burden of the universal service and taking mitigating action to ensure that the universal service is maintained.
I confirm also that Post Office Limited will remain publicly owned, although we will continue to explore mutualisation. This Government have made a commitment that there will be no further closure programme. Royal Mail and Post Office Limited signed a 10-year commercial agreement in 2012 to ensure that they continue to be strong business partners.
The Government's decision on a sale is the practical, logical and commercial decision, that is designed to put Royal Mail's future onto a long-term sustainable basis. It is consistent with European developments, where privatised operators in Austria, Germany and Belgium have profit margins far higher than Royal Mail, and have continued to provide high-quality services.
Now the time has come for the Government to step back from Royal Mail and allow its management to focus wholeheartedly on growing the business and planning for the future. It is now time for employees to hold a stake in the company and share in its success. This Government will give Royal Mail the real commercial freedom that it has needed for a long time, and I commend this Statement to the House”.
My Lords, that concludes the Statement.
My Lords, I thank the Minister for repeating the Statement. I should declare an interest as a former joint general secretary of the Communication Workers Union and, many moons ago, an apprentice in Royal Mail when it was called the GPO.
We opposed the Government’s privatisation of Royal Mail during the passage of the Postal Services Act 2011, and we oppose it today. Maintaining Royal Mail in public ownership gives the taxpayer an ongoing direct interest in the maintenance of universal postal services in this country; helps to safeguard Royal Mail’s vital link with the Post Office; and ensures that the taxpayer can share in the upside of modernisation and the increased profits that Royal Mail delivers. Despite that, the Government have pressed on regardless with this sale and they have failed adequately to justify why they must sell now.
On one side, there is an unusual coalition against this move: the Opposition; the Conservative-supporting Bow Group, which described this move as “poisonous”; the Royal Mail's employees, who are represented by the CWU; and the National Federation of SubPostmasters. The right honourable Michael Fallon, Member for Sevenoaks and Minister for Business and Enterprise, wrote to a constituent in 2009 saying that he, too, was opposed.
On the other side, there is the Government, which now includes the Minister of State. The Government are ignoring the huge changes that they acknowledge have taken place since the passage of the Act. Chief among them is the more than doubling of Royal Mail's profits to £403 million and the significant progress on the modernisation programme, which calls into question the assertions that there is no prospect of Royal Mail being self-financing in the future.
I noted carefully the Minister’s reference to the package that Hooper recommended; it is true that Ofcom and the pensions arrangements were part of that package. However, he did not recommend full-scale privatisation, but an injection of private capital.
We have a number of concerns. The Government are rushing to sell the business without making the case as to why the sale of shares in Royal Mail, through an initial public offering, must be carried out now; nor have they illustrated how a sale will deliver maximum value for the taxpayer. They have failed to show that the climate for an IPO now is a good one or how much capital would be injected into the Royal Mail business as a result. Instead, they are pressing ahead with a fire sale this financial year in a desperate attempt to cover the gaping hole in George Osborne’s failed economic plans.
There are further points that the Government have failed to address. First, there is the timing of the sale. No evidence has been provided to demonstrate that the Government will secure best value for money for the taxpayer from a sale at this point in the Parliament. Additional years of profitability may well increase the sale value in future years.
Secondly, there are unresolved competition issues. Legitimate questions regarding the fairness of competition posed to Royal Mail by other postal operators—given that other postal service operators are not subject by the regulator to the same high performance and service quality standards as the Royal Mail—have not been resolved. The different services required of Royal Mail by the regulator arguably put Royal Mail at a disadvantage compared to its competitors.
Thirdly, there are the funding needs of the business. To what extent will Royal Mail be able to raise capital from other sources to meet its funding needs if it enters into private ownership?
Fourthly, there is the impact on the Post Office network. In January 2012, a 10-year deal was entered into between Royal Mail and the Post Office under which Royal Mail would continue to use the Post Office to deliver a range of Royal Mail services. However, there are no guarantees that this arrangement will continue on expiry of the agreement.
Fifthly, there is the impact on consumers and businesses. Royal Mail assets could be sold off, generating large, short-term profits for the private company: for example, high-value urban centres could be sold off to be replaced by distant depots, making it worse for the consumer. What assurances can be given that regulation will be sufficient to protect consumers from being ripped off in the same way that they were after transport and energy privatisations?
Sixthly, there is the issue of postcode access for businesses. As part of the proposed sale, it has been reported that the Royal Mail maintenance of post-office codes is up for sale, with a wider negative impact on business. I would welcome the Minister’s response on that point.
Finally, in relation to employee ownership, we welcome the giving of 10% of the shares in the business to its employees. However, if that is such a good idea, and given that the Government are proposing fully to mutualise the Post Office, why is the share being given to Royal Mail employees not larger?
In conclusion, I have the following questions for the Minister. First, Royal Mail faces competition from other postal service operators which are not, as I have said, subject to the same high performance and service quality standards as Royal Mail, putting it at a competitive disadvantage. How will that not depress the sale price, and what will the Minister do about it?
Secondly, this cannot be allowed to put the Post Office at risk. What guarantees can the Minister give that a privately owned Royal Mail will renew the agreement under which the Post Office provides Royal Mail products, which is essential to the Post Office’s future?
The Minister said that the universal service obligation is fully protected; that it will take precedence; and that if things start to go wrong, Ofcom will renew the financial burden. What exactly does he mean by “renew the financial burden”?
We believe that this is an ill-thought-out process that will not benefit the taxpayer, the consumer or the employees, and believe that the Government should think again.
My Lords, I am sorry that the noble Lord, Lord Young of Norwood Green, takes such a negative view of the privatisation programme with Royal Mail. I agreed with hardly any of the points that he made and I will attempt to address them as best I can.
On the rationale for the sale, I reiterate that the Government’s overarching objective is to protect the universal postal service; that is one of the key aims of this privatisation. To do that Royal Mail needs future access to private capital and commercial disciplines to be able to continue its modernisation programme and seize the opportunities for growth. It is important, as I mentioned earlier, to focus on the market for online shopping. For example, it is vital that the Royal Mail is able to upgrade its sorting technology, improve the way in which the tracking of parcels gets through the system and update its methods of delivery—there are 40,000 Royal Mail vehicles, for instance. There are many good reasons, therefore, why it is necessary to raise this particular money.
In terms of doing that through a private sale, as opposed to finding funds from public money, if Royal Mail remained in public ownership, there would be competition with the education and health services in fighting for limited resources. There is a good reason for the move to private funds.
On the so-called “fire sale”, as my right honourable friend the Secretary of State for Business, Innovation and Skills said today in the other place, it must be the longest fire sale in history. At this stage, I pay tribute to the previous Government and to the noble Lord, Lord Mandelson, who is in his place, for what he did in the privatisation of Royal Mail. It was a process that he started and we are completing it.
It is not a fire sale; rather, it has been long in the planning. The announcement today follows more than two years of preparation since Parliament passed the Postal Services Act 2011. It is a commercial transaction, and the Government will follow normal commercial practices in setting the share price and delivering value for money. A further point to make is one that I mentioned earlier. Deutsche Post and Österreichische Post have enjoyed good profits as a result of their successful privatisation programmes, and we do not want to be behind the curve. That is another good reason for moving to privatisation.
On employee ownership, I am delighted to confirm once again that employees will be given 10% of the shares for free, while on top of that through the special allocation process they will have the opportunity to purchase further shares. We believe that that is a very good deal for the employees. The objective is to tie employees in and align them to the strategy of the company. Overall, as I have said, I do not agree with the noble Lord, Lord Young, in terms of all his queries. I believe that we are on the right track.
My Lords, my noble friend referred to this as being the biggest employee share scheme following privatisation for almost 30 years. The last one was that of the National Freight Corporation, which I handled myself. Perhaps I may remind my noble friend that the reaction on the Labour Benches and of the unions was exactly the same on the NFC as it is today to the Post Office, although I do not think that anyone would now remotely argue against the NFC.
Although I congratulate the Government on this decision, does my noble friend not feel that it is a great pity that it was not taken 25 or 30 years ago? Does he realise that if it had been, at this point, Royal Mail might have been leading in the international carriage of parcels rather than leaving it to the German post office to take that advantage? It is an enormous lesson for us, so perhaps I urge my noble friend that privatisation should come back on to the Government’s agenda. A number of other companies could be privatised—here I am thinking in particular of BBC Worldwide. That would be to the benefit of the public and of the people who are working for it.
I thank my noble friend for that comment. In harking back 25 years, he makes an extremely good point; hindsight is very nice. I cannot remember exactly where we were with Royal Mail 25 years ago, but I am delighted that we are where we are at the moment. I believe that the conditions are right to privatise. The chief executive of Royal Mail has done an excellent job in turning the business around, with profits of over £400 million. The climate and the time are right, and I believe that there is an appetite, but let us see what investors think about it.
My Lords, some of us on this side of the House who supported a minority shareholding did so because we wanted an improvement in the quality of the management. Frankly, we had despaired of that ever happening. That is because it takes particular skill for a manager to run a monopoly in a capitalist system at a loss, but that is what the managers of the Post Office succeeded in doing for a number of years. Circumstances have changed because the nettle of parcels has been grasped by the Post Office in a quite spectacular way. However, at the same time we now have day-by-day diminution in the volume of postal mail that requires to be delivered. The fact is that the length of the walk, the final mile that postmen have to go, is exactly the same regardless of the number of letters they have to carry. That is the most vulnerable part of the operation. It is not the parcels that will be the problem; it will be the cost of delivering letters. Frankly, the assurance that the Minister has given us this evening does not in any way give us comfort. All we can see is a weakening of the universal postal service when it becomes too expensive to subsidise under the economics of this flawed scheme.
The noble Lord may not be surprised to hear that I do not agree with his assessment. It is true, however, that since 2006, the fall in letter volumes has been as much as 25%. The market is changing and we need to keep ahead of it. I would remind the House again that Germany and Belgium are ahead of the game. The injection of private capital into Royal Mail will help with the change, but there is a double benefit in that, through legislation, the universal offering remains strong. It is set in stone, which is a very important point to make.
My Lords, as the noble Viscount will be aware, we on the Liberal Democrat Benches are very much in support of this. Indeed, the Liberal Democrat element in the coalition, starting with Ed Davey who was the responsible Minister in the early days of the coalition, are absolutely delighted to see this culmination now. As the noble Viscount rightly said, it is very nice to see the noble Lord, Lord Mandelson, in his place because it was he who started this process many years ago despite considerable opposition from his own side, which appears to continue.
Perhaps I may put three questions to the Minister. The noble Lord, Lord Young, raised a perfectly valid point when he asked whether the Government are satisfied—have they had advice from whoever is running the IPO for them, who presumably will have been taking soundings from the institutional shareholders who they are expecting to invest—that those shareholders will be prepared to put up the necessary capital to invest in Royal Mail, which was the whole purpose of the privatisation exercise in the first place? Are the Government satisfied that this structure will provide the necessary capital to continue the modernisation process in Royal Mail that we all know lies behind the whole privatisation drive?
Secondly—this is an important point—the Government have chosen to take the IPO route, which I must say was slightly surprising to some of us. We had assumed that the more likely result would be either some form of trade sale or a private sale. Can the Minister confirm that if the IPO was to fail for whatever reason—particularly listening to the noises that are coming from the trade union movement at the moment—the Government will continue the process of selling off shares in Royal Mail? If that happens, it is probable that the buyers would be a private equity group, who are less likely to be sympathetic to the interests of the trade union movement than would be the case under an IPO.
Thirdly, perhaps I may reflect for a moment on the 10% of shares that are going to the employees. As the noble Viscount will know, the Liberal Democrat element of the coalition has pressed for this strongly right from the start. Can he confirm the numbers that have appeared in the newspapers recently of the value of this to the employees of Royal Mail? The numbers that I have seen show that the average Royal Mail employee is being paid approximately £19,500 per annum, and on the likely price of an IPO, every employee will receive shares worth about £1,900 to £2,000. If those numbers are correct, that is clearly a significant sum to be put into the hands of the well deserving employees of Royal Mail.
In answer to my noble friend’s first question about the appetite of shareholders, the indications are that there is clear interest in purchasing shares in Royal Mail. I would not want to go further, because it is not my role to speak on behalf of investors, but my noble friend makes a very good point. The most important thing for Royal Mail is to have flexible access to capital to allow it to innovate and capture market opportunities, such as the strong growth in the parcel market driven by online shopping, as I mentioned earlier. That is what an IPO will deliver for Royal Mail. It should not have to come cap in hand to Government and compete with schools and hospitals when it needs to innovate or commit to future investment.
The second question concerns the IPO route as opposed to other methods. It is true to say that, having got to this point over a good number of years, the IPO route was clearly the preferred route. I am certain that other options were looked at. My noble friend’s question was, if the IPO route were to fail, would other methods be used? I do not wish to be drawn on that or to speculate, only to say that it is our firm belief that the IPO route is the right route and that is the route that we will be following.
The final question concerned employees. I am delighted to hear that my noble friend is very much in favour of giving 10% of shares free to employees. I will not be drawn on the actual valuation, because a prospectus will be produced in due course, which will set out the terms of the IPO. The valuation will, of course, depend on investor demand and market conditions at the time. What my noble friend has read in the papers, as he will probably know, is pure speculation.
My Lords, I think that the Minister will agree that many of those who retired from the Royal Mail worked very hard to get it into the very good shape that it is in just now. Has any consideration been given to allowing those who are in receipt of a Royal Mail pension—in other words, former sorting staff and postmen and postwomen—to buy shares? My thoughts go to the fact that in my previous constituency—although it is known as Glasgow North East, it was known as Springburn at one time—we have a lovely sorting office, which I pass every week when I come to the House of Lords. It is known as the St Rollox sorting facility. Several hundred people work there. They have changed their hours, adjusted to the new situation and worked very hard. I would be deeply saddened if any organisation took over and vacated the site at St Rollox and went somewhere else, which would mean that the loyal men and women—some of whom I am related to—who perhaps get up at four or five in the morning and walk to their work in the Springburn area, would lose their jobs. Some of the newer delivery companies, such as TNT and FedEx, tend to go into great industrial estates, but the only way to get to these facilities is by private transport and not public transport. Has any consideration been given to securing jobs in the communities in which they already exist?
I thank the noble Lord for those two points. His first question was whether it might be considered that shares be given to those who have worked for a long time for Royal Mail and that their hard work might be rewarded. It is fair to say that the employee share scheme is designed to secure the future success of Royal Mail and the universal service and we therefore consider it appropriate to include only the current workforce, who deliver the universal service and can influence and benefit from the future success of the company. Share awards will be made only to those employees who have been in employment for the relevant qualifying period, which happens to be a number of months. I listened carefully to the noble Lord’s second point; I know Springburn, so it is familiar to me. I am sorry to hear that there has clearly been some disruption to individual lives regarding the transfer of the sorting office. My only response to that is that it is very much up to the Royal Mail management to—
It is useful to have the clarification from the noble Lord. In that case, my point is still the same. It is very much up to the Royal Mail management to look very sensitively at those personnel issues. I have no doubt that they will do that if there is a particular move in that way. Change, as we know, is always difficult and it affects individuals. The noble Lord makes a very good point.
My Lords, I welcome the affirmation in the Statement—the Minister has repeated the affirmation twice—that the Royal Mail will still be the UK’s universal service provider and that this will include services to urban and rural areas alike. However, may we be assured that not only will there be universal coverage but there will continue to be uniform pricing? Too often the residents of rural areas, especially remote and sparsely populated areas, face higher costs for public services. Can the Minister affirm unequivocally that a privatised Royal Mail will be required to maintain a universal pricing structure and that residents, whether of Westminster or of west Devon, will continue to pay the same price for the service that is offered?
In answer to the right reverend Prelate, through the Postal Services Act, Ofcom has the primary duty of securing the provision of a universal service. I can confirm that this will be secure in the hands of the privatised Royal Mail. What is protected is not only the six-days-a-week letter service to every address in the UK and free services to the blind, which I mentioned earlier, but also affordable prices, which are monitored by Ofcom. On the specific question, Royal Mail stamp prices for the universal postal service will continue to be regulated by Ofcom, which has a duty to ensure that they remain affordable. For example, Ofcom has put in place a safeguard cap on second-class letters and parcels to ensure that the service remains affordable for all users. I hope that that reassures the right reverend Prelate.
I am grateful to my noble friend for the Statement, which I very much welcome. Has he had an opportunity to read Richard Hooper’s report, which was commissioned by the previous Government and paves the way for today’s announcement? It identified some major hurdles to Royal Mail achieving its competitive position: the elimination of restrictive labour practices; increased levels of automation; and a culture change towards customers. Will he advise us on what progress has been made towards that? Will he also reflect on the point made by IMRG that parcel deliveries are going to increase by 70% over the next four years due to the growth in online sales, providing a real opportunity for a revitalised Royal Mail in the private sector, if it can sort out those inherent problems?
My noble friend’s questions allow me to say that there is tremendous market opportunity for Royal Mail when it is privatised. On the automation programme and the changes that the chief executive has brought about with the rest of the board of Royal Mail, there is extremely good progress to report. I am glad that my noble friend has endorsed that. As to the market itself, we know that there is a tremendous opportunity in terms of future online shopping opportunities, but it will be up to the Royal Mail board following privatisation to use the flexibility of private capital to look at the market and to take even greater advantage of the opportunities for the company.
I thank the noble Viscount for the Statement and fully applaud this decision, which is belated in the extreme. It is clear that one of the great rationales for this privatisation is the increasing competition and the threats from technology that the Royal Mail faces. The idea that a state-owned operation of this kind cannot face those challenges in the nimble way that is required in business today seems to be unarguable and I absolutely applaud the decision. However, I have two quick questions. I am not asking the Minister to name it, but is there a price at which the Government would not sell? Secondly, are there any considerations about potential foreign takeovers in due course?
My noble friend would probably be surprised if I gave an accurate answer to the first question, so I will pass on that one. In terms of the price, as I mentioned, the prospectus will be produced at some point between now and April 2014, which is the period during which we anticipate the sale will take place. Market conditions and investor demand will also be part of that aspect.
I raised a number of questions that the Minister did not answer and, before he sits down, I request that he addresses those in writing. I do not have time to reiterate them all. I also could not help but observe that the right reverend Prelate did not get an absolutely explicit answer on the uniform tariff and the universal service obligation. Maybe I missed something.
Government Archives and Official Histories
Question for Short Debate
My Lords, as noble Lords will have recognised, the title, or description, of this debate is a reprise. In a short debate on 5 February 2008, I expressed my concern about two separate but related issues. One was the way in which ministerial and other papers are kept when they leave departments but are not destroyed or sent to the National Archives at Kew. The other was the need to continue the long-standing series of official histories and how best to choose, organise and publish the books.
As I explained in my debate in 2008, my interest in the first issue arose from the fate of government papers when I was seeking documents from my time as Secretary of State for Transport. After six months of fruitless exchanges between me and the department, I finally abandoned hope of anything substantial. The departmental records officer where the papers were stored in Hastings apologised for—in his words—“an unsatisfactory situation”. He recognised quite openly how this had arisen. The essential discipline—these are my words—had been lacking to ensure that they were properly catalogued, remained in the correct files or changed their names appropriately and to ensure that they were returned when they had been borrowed.
In the end, I wrote to the then Cabinet Secretary on the general question of government records and their condition. I said that some departments took great care of their archives but others did not, especially when departments were chopped and changed. I understood that his predecessors had reminded Permanent Secretaries that they were obliged to keep accurate records and to keep them in good condition. I received a helpful reply. Eventually, he said that within a year or so he would again remind Permanent Secretaries of their duty in this respect.
Since the previous debate, most, if not all, Permanent Secretaries have retired or gone elsewhere. Some departments have adopted new names and policy areas have been changed. So where are the papers now and has today’s Cabinet Secretary reminded new Permanent Secretaries of their responsibilities in keeping records? Or is it now the head of the Civil Service, Sir Bob Kerslake, who keeps Permanent Secretaries up to the mark? Put simply, can the Minister reassure me that government papers as I have described them are now in good order?
I turn to official histories. On the previous occasion, five years ago, I mentioned Problems of Social Policy by RM Titmuss, published in 1950—a seminal study of poverty and deprivation in wartime—as the first official history I had read. Another I mentioned was SOE in France by MRD Foot, which I was required to read out of ministerial interest at that time. I then referred to Churchill’s Man of Mystery: Desmond Morton and the World of Intelligence, an unusual choice even among the eclectic selection of titles in the current series. It was this book about Desmond Morton that focused my mind on some wider policy questions about the official history programme: the timetable, the shape of the programme, the publisher, the contracts with authors and the marketing of the books. The Desmond Morton book seemed to be a one-off, as it had a well designed jacket and told a fascinating story. It should have sold well, been serialised in newspapers and been considered for a television programme. I asked how many copies had been sold—at £49, about twice the usual price—and whether the book had been reviewed in magazines and journals. In replying to the debate, the Minister was full of good will but no figures or substantial response.
However, after the debate, things began to move. Before the end of that year the Cabinet Office said that it was commissioning “a fundamental review” and that Sir Joe Pilling, a retired civil servant, would undertake it. He took evidence quickly and widely, and his report was completed by April 2009. A second, associated report was written by Bill Hamilton, a literary agent, about the publishing arrangements. These were internal classified reports but, two years later, when the noble Lord, Lord Hennessy, intervened with the Cabinet Secretary, it was decided to make them publicly available on the Cabinet Office website. I welcomed this step although I was bothered that some key paragraphs in the Hamilton report had been removed as they were “commercially sensitive”.
The principal terms of reference for the Pilling report were to review the official history programme and consider whether it should continue. Sir Joe Pilling’s recommendation was strongly positive. He said that,
“the overwhelming weight of evidence supported the continuation of the programme”.
He then went on to make detailed suggestions to ensure that the programme was,
“better, stronger and more useful”.
I should say that in 1997, the Prime Minister nominated three Privy Counsellors—the noble Lord, Lord Healey, the noble and learned Lord, Lord Howe of Aberavon, and me—to be asked whether they were content with the subject and the author for each proposed book in advance of the Prime Minister’s formal approval. This led to my interest in the whole official histories programme and how it was put together and published. In this respect, I have much exceeded my proper and limited role.
However, I have kept in touch with the noble and learned Lord, Lord Howe, from time to time. At the beginning of my inquiries he shared my view that the programme appeared to fall “not short of chaos”. Later, he wrote directly to the Cabinet Secretary expressing his concern. Then, in a letter to me on 25 August 2010, copied to the noble and learned Lord, Lord Howe, and the noble Lord, Lord Healey, Sir Gus O’Donnell—now the noble Lord, Lord O’Donnell—said that, since the current programme of official histories was coming to an end:
“Given the current challenging economic climate, I am sure that there is likely to be a hiatus in commissioning new titles”.
That is where things stand. There is now a hiatus and a gap in the official histories. The last volume of the existing programme was commissioned five years ago, so the break in the sequence is already lengthening.
I am grateful to members of the official histories team at the Cabinet Office for their helpful responses to my persistent inquiries over a long period. However, I do not know who decided that there should be a hiatus. Was there a ministerial decision, and, if so, by whom and when? If a new programme either marks time or goes ahead, what are the financial consequences? Is stopping official histories because of the “challenging economic climate” really justified? As I said earlier, given the deletions in the Hamilton report, there are no relevant figures and costs, but they must be peanuts against public expenditure.
I think the latest book published in the existing programme is the second volume of The Official History of Britain and the European Community by Sir Stephen Wall. It is outstanding and wholly relevant to the possibility of a new referendum in the next Parliament. I remain disturbed about the publishing and marketing arrangements for official histories, given that this book is priced at £70—a ridiculous figure.
History never stops, and the Secretary of State for Education is very anxious that Britain’s own story is recorded and studied. To stop official histories is short-sighted. Although the Minister cannot announce today a reversal of this unhappy situation, I hope that the Government will make an early decision to resume the publishing programme.
My Lords, I congratulate the noble Lord, Lord Rodgers, on raising the matter of government archives and records. I was a bit unsure whether my experience, which I wish to relate to the House, fitted into this, but in his first few words he made clear the kind of chaos that is associated with records and archives. That has been exactly my experience in the past two years, although it does not go back as far as that of the noble Lord, Lord Rodgers.
I need to set the background as to why I needed access to the records. The background came from the dirty tricks department in the Department for Communities and Local Government led by the Secretary of State, Mr Pickles, who decided to go back to my record of expenditures in the department in 2004-06. There was clearly a political reason. He spelt out all the expenditures that were done with government procurement cards in my name. That meant, of course, that the information was given to the press. There were PQs here and in the Commons. There were stories of me running around everywhere, eating in the best restaurants and so on. They were just not true but they were put out, and they were politically inspired. My concern was how to get access to the information and challenge it.
In 2011, I wrote to the then Cabinet Secretary, Sir Gus O’Donnell—now the noble Lord, Lord O’Donnell—saying that I was very concerned about the allegations because they were not true. He wrote two letters to me, which I have here, and I spoke to him about these. In his first letter, dated 18 November, he said that there had been some fraudulent expenditures, that the person had been caught and disciplined and that I should have been told before this information was released—that is supposed to be the normal courtesy, although it normally does not apply to me. Five days later, I received another letter from him contradicting his earlier letter. This one had his name stamped on it but was without a signature. I ended up with two letters from the Cabinet Secretary. The essential difference between the two letters was that both the information about finding the criminal, the person responsible, and the comment about my not being told had been deleted from the second letter. Clearly, I got a little concerned about who signed what where. I then asked Sir Gus O’Donnell, who said that he had signed only one letter and knew nothing about the second one. He was still in that early stage before his retirement. I clearly wanted to know, so I asked the department, but it would not give me the information.
I then applied to the Information Commissioner under the Freedom of Information Act. He looked at the matter and said that he backed the Secretary of State. I went to another appeal but again he backed the Secretary of State. What was he backing? He was backing the view, under Section 36 of the Freedom of Information Act, that if it is in the public interest not to tell you, he can deny you access to that information. The Cabinet Secretary and the Information Commissioner made it clear that they knew who the person was who gave the instruction. Since they will not give me the information, I suspect that we are back to the old SPADs—Mr Shapps was the Minister at the time, and Mr Pickles was Secretary of State. Somebody directed the Cabinet Office over the weekend to change the letter. They did not say to Sir Gus O’Donnell, “We’re changing your letter. Is that all right?”. It was a political intervention to take out two important bits of information and therefore certainly relevant to what I was concerned about.
The Information Commissioner confirmed that the information was available but said that it was not in the public interest to tell me because it was a high-profile public case. I am not sure that is a sufficient answer. Why is it a high-profile case? It is because they released the information to the press about my expenditures. That is what has made it high-profile. That then becomes the justification for the Information Commissioner not to tell me why it is not in the public interest. Telling you what is happening could have a “chilling effect” on civil servants. We are talking about political intervention here, not civil servants. One civil servant does not do this. This was a direct intervention on essential information by somebody in the Department for Communities and Local Government and with the Cabinet Office over the weekend.
My concern, therefore, is how do I get that information? I cannot get it through the Information Commission, who confirms the decision by the Secretary of State, Mr Pickles. What can you do about that? I know that it is difficult when you are up against the Information Commissioner who takes that view, but I am still concerned about this political intervention. There are many expenditures in that department and they are all listed. According to the department, I must have eaten myself around the ruddy world, and in all the best restaurants, of course. Therefore, I wonder whether I can get access to my diaries. One expenditure of more than £1,000 was spent in a hotel on Christmas Eve. Your Lordships will not be surprised to learn that I was not in London having a do; I was at home. I need the diary to be able to prove that these allegations against me are just wrong.
I then went to the Cabinet Office to ask for the information, but remember that the Information Commissioner says that I must appeal if I want to go to the final body for appeal, and I have to do it within 28 days. So I wrote to the Cabinet Office and I rang them there. I said that I wanted the information from my diaries. They told me that they were very difficult to find. In the end, I got a letter this morning telling me that they had found them—this is weeks later. The trouble is that the appeal has gone. Is that the normal service that one can expect? I know that if you are a privy counsellor you are supposed to get some privilege. I am not one now, but I was one then, so I should still have access to the information on the fast track—I expect the slow track from now on. However, the circumstances are such that I could not get the diaries. I needed the diaries to show where I was on what dates and perhaps throw doubt on all the expenditures involved. To that extent, I am frustrated. I did not think that I could bring the matter up until I heard the noble Lord, Lord Rodgers, talk about delay in access to information, which Ministers have passed. If the Government can get it—and they have, in my case—and so can the Ministers, why not I, the man whom they are attacking? That is what I call political dirty tricks. I hope that they will read this speech. I just felt there was frustration and there was a chance in the debate of the noble Lord, Lord Rodgers, to put my point of view before the eminent people who will follow and who have direct experience of what happens in the Cabinet Office.
My Lords, I am left breathless, but I will try. I thank the noble Lord, Lord Rodgers of Quarry Bank, for giving us the opportunity to debate this important theme. I declare an interest as president of the Friends of The National Archives and as a teacher of contemporary British history at Queen Mary, University of London.
I will concentrate on a special oeuvre within the genre of official histories: those dealing with the secret services. Two very fine ones have appeared since the noble Lord, Lord Rodgers, last enabled your Lordships’ House to discuss official histories: first, The Defence of the Realm: the Authorized History of MI5, spanning the years 1909 to 2009, by Professor Christopher Andrew, which was published in 2009; secondly, the following year saw the publication of Professor Keith Jeffery’s MI6: The History of the Secret Intelligence Service 1909 to 1949.
Both books brim with their own special mixtures of analysis, swash and buckle, operations and organisation. Both studies kindle that fascination to which we Brits are so susceptible when reading about the King’s or the Queen’s most secret servants in either fictional or non-fictional form. It is here in that strange, twilit terrain between the facts of Professor Andrew and Professor Jeffery and the imaginations of the spy novelists that one finds the real utility of intelligence history. Spying and counterspying are activities that uniquely lend themselves to fantasy and conspiracy theory. The meticulous, careful reconstructions and assessments filtered through the minds and pens of Chris Andrew and Keith Jeffery are the best antidote we have to what one astute critic called the “snobbery with violence” practised by Commander Bond on both page and screen.
Part of the special utility of secret service official histories and historians is that they possess another virtue, a Heineken lager quality, for they can reach those parts of the secret state that others cannot reach because of the stratospheric classification levels of many of the documents on which they draw and the care needed to avoid blowing both human and technological techniques, the sources and methods of the craft that remain of enduring value.
The paper product of our secret agencies does not flow that easily into the public domain on the tide of the 30-year—soon to be 20-year—rule. But the appearance of the official histories of the Security Service and the Secret Intelligence Service has provided a scholarly bonus —a Keynesian multiplier effect—which I had not anticipated. Once the volumes had been published, a proportion of the retained files on which Professors Andrew and Jeffery had drawn could be prepared for declassification at the National Archives, and indeed were.
At Kew last May the Foreign Office, the Cabinet Office and the National Archives mounted what can only be called a cornucopian release, drawing on two of the most secret collections the British state has ever created. The FCO batch covered the Foreign Office’s dealings with the SIS—the province of what the FCO euphemistically calls the Permanent Under-Secretary’s Department—covering the years 1903 to 1951 and shedding much new light on how the secret state coped with successive threats from the Kaiser, Hitler and Stalin. The second tranche flowed from what I call the Cabinet Secretaries’ “too hot to handle” cupboard, formally known as the Cabinet Secretary’s Miscellaneous Papers. This batch covered the years 1936 to 1951 and contained material which, in my judgment, is of continuing value to today’s guardians of national security in the secret agencies and in Whitehall.
I particularly have in mind the report prepared for Mr Attlee and a small group of Ministers in 1951 on The Secret Intelligence and Security Services. Written by that great technician of state, Sir Norman Brook, the Cabinet Secretary to four Prime Ministers, it painted for Ministers a vivid and unsparing portrait of how the secret world had fared and was faring against the toughest target British intelligence had ever faced: Stalin’s Russia.
I hope that the current heads of service and the Cabinet Secretary will read the Brook report. Not only is it an exemplar of concision and penetration and the jargon-free language at which Whitehall excelled before departments sought the assistance of management consultants, it is a model for how such a review might be commissioned today; for example, if the Prime Minister wished to review the workings of the secret world as a whole with now more than three years’ experience available of his National Security Council as the taskmaster and pacemaker of the agencies.
I profoundly hope that the current austerity will not dam the flow of official histories for the foreseeable future, not least those dealing with the secret world. It would be hugely beneficial, for example, if Cheltenham could authorise an official historian to start work on a volume designed for the general reader, embracing as much as can safely be divulged about the Government Communications Headquarters and its predecessor institutions to complete the secret agency set, as it were, and make it three.
I like to think that in this House we have a keen sense of history across all our Benches; in fact, I know we do. I know, for example, that the noble Lord, Lord Cormack, would have added his wisdom to our deliberations this evening had he not been involved with our other business today. I will finish by giving my thanks to all those across the departments and agencies who provide us with such a rich paper trail—although regrettably not to the noble Lord, Lord Prescott—and those who care for the documentary product permanently at the National Archives. We are truly in their debt.
My Lords, I, too, am grateful to the noble Lord, Lord Rodgers, for initiating this debate—at least I was until I heard the speech of the noble Lord, Lord Prescott. I am tempted to say that things must have gone downhill since my day but actually I think I can solve his problem for him. Unless things have very much changed, he does not have to go to the Information Commissioner to get the papers either about his diary or about his restaurant bills. Certainly it always was the case—I believe it still is—that any former Minister can consult the papers which he himself dealt with. My advice to the noble Lord, Lord Prescott, if he finds himself being traduced again, is to go directly to the department and ask to see them and not to bother with the Information Commissioner.
I think the noble Lord should have gone to his own department.
I very much endorse what the noble Lords, Lord Hennessy and Lord Rodgers, said about the value of both the official histories and the National Archives, and the importance of good record-keeping in government, not just for the benefit of academic historians but because of their relevance to current decision-making. When the Government make decisions when they are not fully aware of the history of the subjects they are discussing, they are like a driver who goes out into the traffic without having taken the trouble to check in his rear mirror before taking action on the road. In that respect, both the files and the official histories are very valuable.
However, files and official histories are not enough. We need something else to exploit the lessons of history for policy decisions. If, when a crisis arises, there is no official history on the subject—certainly, if there is, it ought to be consulted; but it will be a monumental work that does not cover all areas of government policy—it is too late to go back to the archives. We need to ask what else is needed to exploit the lessons of history when they are necessary for informing policy decisions.
Of course, it would be impossibly expensive to employ enough historians in government to cover the vast span of each department’s responsibilities. But it is not too expensive for each department to have a historical adviser who would not necessarily be able to give advice on all major issues but who would have sufficient tendrils into the academic world to know where such advice could be obtained. It is not sufficient for this advice simply to be fed into the department. A historical adviser must be present at the table when major decisions are taken.
Of course, there were many in the Foreign Office and State Department who were fully aware of the complexities of both Iraq and Afghanistan when policy decisions were being taken on those countries. The question is whether they had the opportunity to make themselves fully heard by the decision-makers. In this respect, I admired the practice of Margaret Thatcher as Prime Minister, whose first step when taking a major decision was to hold a seminar of experts. The seminar she held when facing the unification of Germany has become well known. It did not necessarily overcome her prejudices but it was certainly a counterweight to them. It said that under the pressure of economies, all departments, with the notable exception of the Foreign Office, had disbanded their historical sections. If that is so, it is a grave disadvantage to the operation of government.
Will the Minister tell me, either in replying to the debate tonight or by writing to me, whether it is true that all departments except the Foreign Office no longer have historical sections? If that is untrue, which departments still have them? I also invite his comment on whether, even if departments cannot afford historical sections, they should at least have a historical adviser. Without such, government decisions will be taken blindly.
My Lords, I, too, welcome the debate initiated tonight by the noble Lord, Lord Rodgers. I want to make one simple point very strongly in favour of official history and about wanting to make official history more contemporary, not less. I believe that history is vital to people when facing difficult decisions. In the years that I spent as an adviser in government, one thing that struck me a great deal was the lack of institutional memory in government departments. Even in a long-serving Government such as the Labour Government from 1997 to 2010, Ministers changed jobs frequently and, except in one or two cases, it was very unusual to have Ministers who had a long period of office in one department.
Apart from the ministerial merry-go-round, there were frequent changes in the Civil Service. For instance, one of the most striking things in the book by my noble friend Lord Adonis on education is that, in the case of the academy programme, eight different people were in charge of it in the Department for Education in nine years when he was the relevant person at No. 10 and a junior Minister in the department. There is far too much changing around and as a result there is a lack of institutional memory. I remember when my noble friend Lord Mandelson came back from Brussels and went to BERR, I think it was called, and started to think about industrial policy, there was very little available that one could turn to that analysed the strengths and weaknesses, from the perspective of government records, of government policies in the past.
More history and more contemporary history would be good for us. The most recent official history that I have read is Sir Stephen Wall’s excellent book on Britain and the European Community from 1963 to 1975. It made me reassess what was probably a rather too jaundiced view of Harold Wilson. Stephen has given us the benefit of the minute books of the Cabinet Secretaries, so you know what each Minister said in Cabinet meetings, and you come to admire Wilson’s skill in handling questions such as the Common Market at Cabinet. The lessons for what we are currently going through—the renegotiation that the current Prime Minister proposes—come out of that book extremely strongly.
Taking the Europe example again, the reason why I would like some more contemporary examination of the records is that many of the issues that will be raised if there is a renegotiation in the next Parliament were raised during the European convention in the period from 2000 to 2003. Many of these issues about competences, repatriation of powers and the legitimacy and accountability of European institutions were thoroughly gone through then, yet I suspect that there has been no proper examination of the lessons of that experience by officials internally and certainly none by historians externally. So let us have more official history, and let us make it more contemporary.
My Lords, I, too, thank the noble Lord, Lord Rodgers of Quarry Bank, for securing this debate and, indeed, for opening up this whole question with his debate five years ago. I must declare an interest, as secretary to the All-Party Group on Archives and History and, like my noble friend Lord Hennessy, as a working professor of history in Queen’s University Belfast. One of the effects of the important debate introduced by the noble Lord, Lord Rodgers, five years ago was the production of the Pilling report. The noble Lord referred to it tonight. There is a striking sentence by Sir Joe Pilling at the heart of his report endorsing the project of official histories. He said that he had come to see the work of publishing official histories as,
“the gold standard of accountability to the country from those who have been privileged to hold senior office”.
It is for that reason that Sir Joe Pilling advocates essentially an improvement and an increase in the production of official histories.
I recall that five years ago I referred to the history of MI6—which my noble friend Lord Hennessy mentioned tonight—by my colleague Keith Jeffery. It was then basically something that existed on Keith’s desk, but now it shows how these things can sell. One of the many points that are so important about that book is that it has sold hundreds of thousands of copies across the world. It may be because the Chinese copy actually has a gun smoking on the cover, but none the less it is an indication that no definite economic death follows the production of official histories. It is important to understand that the work of producing official histories is of great significance.
However, there is a darker side to Sir Joe Pilling’s report. If you read between the lines, he was aware as a member of the Dacre committee with Sir David Cannadine that it was likely that we would move from a 30-year rule. Actually, the Dacre committee recommended moving to 15 years, but in practice it is now a 20-year rule. Sir Joe is also clearly aware that this will become an argument for the state to say that it does not need these official histories any longer. He clearly tacitly acknowledges that that argument is just around the corner. It is the argument that is related to the hiatus that has been announced in the context of austerity. I can completely understand it, there is a forceful logic to it, but there is another hiatus, if I might put it like this. It would be forcefully true when the 20-year rule comes into effect and will be much truer in five, seven or eight years from now insofar as it has truth today. We still have a pressing need in public areas for a certain type of work in an official history programme.
Let me explain what I mean and take the case of the history of the Northern Ireland Office. If you want to look at the volume of official publications on Northern Ireland on the shelf of our Library, you will find a shelf of official publications including the report on Bloody Sunday and the Finucane report. There are hundreds of thousands of pages, mostly dealing with matters of that sort, occasions when the state has been seen to behave not very well. I have no objection to that; I was the historical adviser to the Bloody Sunday tribunal report. However, it is somewhat ridiculous that there is no account of the work of those officials on the British side who struggled to bring about a peace process. It is astonishing that we are silent on the more creative, positive, though no doubt deeply flawed aspects of the work of our state officials while we are so loud in announcing some of the rather bad things that went on. That seems an astonishing way to proceed.
The same point can be made about how aspects of Foreign and Commonwealth Office history in the 1940s and 1950s have been dealt with in recent times. We now seem to think that the way to educate the public about what happened in the past is to apologise or to have a large and expensive inquiry about something very bad. That may well be necessary, but this is the case for a proper, official history programme. With the hiatus that still now exists, particularly in the Northern Ireland Office, the many arguments there have been about legacy in Northern Ireland, the sense there that the past has not been properly dealt with and the small sums involved, there is a case for the Government to reconsider their approach of austerity.
There is a further point made in Sir Joe Pilling’s report that is worth drawing attention to. He says that the internet now allows you to publish a lengthy set of footnotes and a lengthier text—the full scholarly history—but a 200-page shorter version as the book. That seems another way for government to avoid unnecessary expense. In other words, I am arguing that this can be done quite cheaply. I would like to see the Government reconsider the force of the Pilling report of 2009.
Forgive me for speaking in the gap. I agree very strongly with the arguments of my noble friend Lord Butler for a historical adviser to many government departments. I had the privilege of accompanying the noble Lord, Lord Carrington, on a visit he made in 1981 to South America. It was not at all clear what I was doing, but I accompanied him as a historian of the Spanish world. When we got to Brazil, an official of the Brazilian Foreign Minister asked me what my mission was. I said, “I am Lord Carrington’s historical adviser”. He had not appointed me; I appointed myself. The Brazilian official said, “What a good idea —we must have one too”.