1.1. The Gay and Lesbian Humanist Association (GALHA) provides a voice for the many non-religious in the lesbian and gay community in the United Kingdom and elsewhere and promotes a rational humanist approach to homosexuality and to lesbian, gay and bisexual rights as human rights. Founded in 1979, it is one of the longest established national membership organisations in the British lesbian and gay community.
1.2. GALHA inaugurated the arrangement of secular (non-religious) ceremonies of love and commitment for same-sex couples in 1987 as a service to the lesbian and gay community in the absence of any legal recognition of same-sex partnerships. Our associated charity, which took over the service in 1996, can now arrange it in most parts of the country and receives hundreds of requests every year. We therefore have a particular interest in the subject matter of this consultation.
2.1. We deplore the undue influence apparently exerted over Government policy by the Church of England and other religious lobbyists, as evidenced by the amendment of the Employment Equality (Sexual Orientation) Regulations 2003 following private representations after the close of public consultation earlier this year. This led to the insertion of new Regulation 7(3) permitting discrimination on grounds of sexual orientation in employment for the purposes of an organised religion, contrary to Article 4(2) of the European Union’s Council Directive EC/78/2000 of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. We hope that the present consultation will be open and transparent.
3.1. We welcome the Government’s broad commitment to the principle of equal treatment without discrimination on grounds of sexual orientation.
3.2. The proposals outlined in the consultation paper fail to satisfy this principle, as you acknowledge in paragraph 2.6:
“The creation of a new legal status that is open only to same-sex couples and not to opposite-sex couples would amount to a difference in treatment. However, the Government believes that this difference in treatment is justified because it would remedy an inequality that already exists between opposite-sex and same-sex couples.”
and again in Appendix B:
“Although restricting the availability of civil partnership registration to same-sex couples introduces a further difference in treatment between same-sex and opposite-sex couples, the Government believes that this difference is justified. Opposite-sex couples can marry and thereby obtain a formal legal status for their relationship.”
The proper way to remedy an inequality is to remove it, not to partially offset it by contraposing another inequality.
3.3. The simple, rational, and indeed only way to achieve full equality of treatment is to treat same-sex and mixed-sex partnerships equally in all respects with the exception of those few in which a person’s sex is genuinely a determining factor (for example, restrictions on consanguinity, or the presumption of paternity of a partner’s child).
3.4. The status of “registered partner” was first introduced by Denmark in 1989 as a means to grant partnership rights to same-sex couples at a time when no country in the world afforded legal recognition of any kind to same-sex partnerships. It was rightly hailed as a bold and innovative step at the time. Other countries followed suit, inventing new wheels of different shapes and sizes, leading to a proliferation of inconsistent partnership schemes. Even now, it remains unclear, for example, whether France and Germany will fully recognise the more comprehensive Scandinavian and Dutch partnership schemes.
3.5. The Netherlands opened marriage to same-sex partners with effect from 1 April 2001. Belgium opened marriage to same-sex partners with effect from 1 June 2003. The Canadian province of Ontario opened marriage to same-sex partners on 10 June 2003. The Canadian province of British Columbia opened marriage to same-sex partners on 8 July 2003. Canada as a whole is expected to follow suit in the near future. The European Parliament, in adopting the Report on the situation as regards fundamental rights in the European Union (2002) on 4 September 2003, has called on member states to “abolish all forms of discrimination – whether legislative or de facto – which are still suffered by homosexuals, in particular as regards the right to marry and adopt children”.
3.6. In the light of these developments, the majority of which have occurred since the preparation of the consultation document, the opening up of marriage can no longer be disregarded as being too radical. The creation of yet another makeshift “registered partnership” scheme as an alternative no longer serves any useful purpose.
3.7. There may be a case for “registered partnership” as a lightweight form of marriage for those who so choose, but only on the basis that it is equally available to same-sex and mixed-sex couples. Experience in the Netherlands, however, indicates that the take-up of this option is extremely low when the alternative of regular marriage is available.
3.8. The adoption of a separate status for same-sex and mixed-sex partnerships perpetuates anomalies and complications unnecessarily. For example, transgendered people are forced to convert their partnerships from one form to the other if they wish to maintain an existing relationship. Indeed, under the Government’s current proposals in the draft Gender Recognition Bill they would not even be able to do this but would have to dissolve their partnership and enter into a new one with the same partner, which is clearly unacceptable.
3.9. For these reasons, we believe that the principle of equality is best served by opening up marriage, with all its rights and responsibilities, to same-sex partners. The current proposals, welcome as they are in relieving some of the most obvious injustices, are only a step in that direction.
3.10. Accordingly we recommend that Section 11 of the Matrimonial Causes Act 1973 be amended to abolish the prohibition of same-sex marriage, and that all other legislation that makes a presumption against same-sex marriage be amended, or reinterpreted as the case may be, to provide equal treatment, except where a difference of treatment is justified on objective biological and not merely on social or religious grounds. The House of Lords has already declared (10 April 2003, in Bellinger (FC) (Appellant) v. Bellinger), in accordance with Section 4 of the Human Rights Act 1998, that Section 11(c) of the Matrimonial Causes Act 1973 is incompatible with Articles 8 and 12 of the Convention Rights.
3.11. We note that the Government has “no plans” (paragraph 1.3) to introduce same-sex marriage. It is significant that the consultation paper offers not a single argument or justification in support of this position.
3.12. We urge the Government nevertheless to continue to monitor international developments closely, and to bring forward plans to introduce same-sex marriage as soon as this is politically feasible.
3.13. We acknowledge that at the present time the Government is likely to persevere with the introduction of a registered partnership scheme regardless. We therefore comment on the specific proposals contained in the consultation paper on that basis. The following comments are to be read without prejudice to the points made above.
4.1. On grounds of equality, freedom of choice and legal certainty we support the proposal (paragraphs 2.1 to 2.3) that any partnership scheme should be an “opt-in” scheme.
4.2. On grounds of equality, we support the proposal (paragraph 3.2) that the minimum age for any partnership scheme should be the same as for marriage.
4.3. On grounds of equality, we support the proposal that partnership should be exclusive.
4.4. Paragraphs 3.4, 3.6 and 3.9, taken together, propose a mechanism to ensure that a civil partnership is void if entered into by a person who is already in a civil partnership or marriage. But there is no corresponding proposal to ensure that a marriage is void if entered into by a person who is already in a civil partnership, beyond the vague statement (paragraph 3.7) that “protections would be extended to the registered partner of a person who married while in a registered partnership”. The nature of these “protections” needs to be spelt out. Will candidates for marriage be required to declare that they are not in a registered partnership? Will the proposed new offences of perjury (paragraph 3.6) apply? In any case, in order for the partnership to remain exclusive, such a marriage must be void, and this must apply in Scotland and Northern Ireland as well as in England and Wales. If such a marriage were contracted lawfully in another country which does not recognise the existing partnership, it should be treated as bigamous for the purposes of English law.
4.5. Purely on grounds of equality, we support the proposal that the prohibited degrees of relationship should be the same as for marriage, although rationally there is a case for same-sex partnerships to be less restrictive.
4.6. We accept the proposal (paragraph 4.1) that registration should be formally independent of any ceremony a couple may choose to have. However, it is vital that the partners should have the option for the registration and ceremony to be performed on the same occasion at a suitable place of their own choosing. Hence registration should be allowed to take place at any venue where marriage is allowed to take place, not only at a register office.
4.7. We support the proposal (paragraphs 4.2 to 4.4) that any registration scheme should be administered by local registration officers.
4.8. We support the proposal for a set fee (paragraph 4.11) but suggest that a reduced fee should apply to partners who have registered their partnership under a recognised local authority scheme prior to the introduction of the new scheme, in partial compensation for the discrimination and additional costs they have suffered by having to register twice as a consequence of the deficiency of the existing law.
4.9. It should not be necessary (paragraph 4.12) to have to wait for the expiry of the 15-day compliance-checking period before setting a date for registration.
4.10. On grounds of equality and perceived legitimacy of partnerships, we must accept the proposal (paragraphs 4.15 and 4.16) that partnerships should be a matter of public record to the same extent that marriage is a matter of public record. At the same time it should be recognised that there are real and perceived dangers (and not only of assault as envisaged in paragraphs 4.13 and 4.14) which will dissuade many partners from registering their partnership under these conditions. Among other things, the Government should consider what steps can be taken to prevent the malicious publication of information obtained from the register by persons who wish to cause harassment or embarrassment to those whose names appear on the register.
4.11. On grounds of equality, we support the proposal (paragraphs 4.18 to 4.20) that the rights and responsibilities of registered partnership should apply in Scotland and Northern Ireland to the maximum extent compatible with devolved government and an equitable balance of rights versus responsibilities.
4.12. The civil partnership schemes of other countries should be recognised, not only in England and Wales (paragraph 4.21) but as far as possible also in Scotland and Northern Ireland, provided they satisfy comparable conditions of exclusivity, intended permanence, and dissolution only through a formal legal process. In addition, all same-sex marriages should as a minimum be recognised as equivalent to civil partnerships until same-sex marriage is fully recognised in the UK.
4.13. On grounds of freedom of choice, we support the proposal (paragraphs 4.23 to 4.25) that local authority partnership registrations should not automatically be converted (but note our earlier comment regarding fees).
4.14. The procedure and grounds for the dissolution of a registered partnership (paragraphs 5.1 to 5.7) and the circumstances in which a partnership is void or voidable (paragraphs 5.8 to 5.12) should as far as possible be the same as those applying to marriage. As noted above, the introduction of a separate status of registered partnership gives rise to a new condition in which a marriage must be deemed void.
4.15. We are greatly disappointed by the absence of any proposal to introduce greater fairness in taxation. This is one of the most important areas of discrimination that needs to be tackled. The undertaking merely to “consider the implications for the tax system of any scheme that is introduced following the outcome of this consultation” (paragraph 6.6) does not inspire confidence. It has been widely suggested in the media that the Government would introduce equal treatment in exemption from inheritance tax, and yet the consultation paper makes no mention of this. Any registered partnership scheme that is introduced should carry the same tax benefits and liabilities as marriage from the start, including equal treatment with regard to both inheritance tax and capital gains tax.
4.16. The immigration rules (paragraphs 7.1 to 7.3) should not discriminate between married partners and registered partners (including partners registered under a recognised scheme of another state). Nor should they discriminate between people intending to register a partnership and people intending to marry.
4.17. On grounds of equality, we support the proposal (paragraph 7.4) that all references in electoral legislation to spouses, whether explicit or implicit, should include registered partners. Furthermore, the same should apply to all legislation, except to the extent that the sex of the partners is genuinely relevant.
4.18. On grounds of equality, we support the proposals (paragraphs 7.5 to 7.12) that married partners and registered partners should have the same rights in relation to giving evidence in court, appointing an attorney, decision-making for incapacitated adults, prison visiting, and protection from domestic violence.
4.19. In ensuring that legal provisions relating to suitability to adopt a child “take account of the new status of registered civil partnership” (paragraph 7.14), the Government should ensure that they do so in a way that does not allow discrimination on grounds of sexual orientation.
4.20. We support the proposal (paragraph 7.16) that registered partners should be able to apply for parental responsibility in the same way as married partners. Again, the Government should take steps to ensure that the consideration of such applications does not discriminate on grounds of sexual orientation.
4.21. The very fact of widespread misconceptions relating to hospital visiting and medical treatment (paragraph 7.17) is a sign of the inadequacy of the law in this area. Same-sex partners can suffer the most appalling institutional discrimination at a time when they are already under great stress. The Government should consider what stronger action can be undertaken than merely “guidance given to medical staff” and hoping for a culture change in due course (paragraph 7.18).
4.22. On grounds of equality, we support the proposal (paragraphs 7.19 to 7.22) that registered partners should have the same rights and responsibilities as married partners in respect of income-related and other social security benefits.
4.23. There is no logic in deferring all state pension rights for same-sex partners until 2010 (paragraphs 7.28 and 7.29) simply on the basis that full equality between men and women will not be achieved until that date. Even partial rights are better than none at all. Transitional arrangements should be put in place immediately, converging on full equality by 2010.
4.24. On grounds of equality, we support the proposal (paragraph 7.30) that registered partners and married partners should have the same entitlement to life insurance.
4.25. The rights and responsibilities of partners on dissolution of a registered partnership (Chapter 8) should be the same as those of partners on dissolution of a marriage.
4.26. We support the proposals in Chapter 9 that a registered partner should have the same rights as a married partner in all respects following the death of their partner.
4.27. Automatic revocation of a will (Wills Act 1837, Section 18) should apply on registration of a partnership as it applies on marriage. Otherwise partners run the risk of disinheriting each other by forgetting, or failing to realise, that they should make new wills.
5.1. We welcome the Government’s broad commitment to the principle of equal treatment without discrimination on grounds of sexual orientation, but point out that this can be fully achieved only by opening marriage to all. Placing restrictions on the respective sex of the partners is as abhorrent as, say, placing restrictions on the respective race of the partners. Rapidly growing international acceptance of this principle means there is no longer any need to introduce yet another “registered partnership” scheme as an ersatz form of marriage.
5.2. In case a “registered partnership” scheme is nevertheless introduced, the rights and responsibilities attaching to such a scheme should be modelled as closely as possible on those of marriage, and we have commented on the specific proposals contained in the consultation document on that basis. A scheme of this kind can only be regarded as an interim measure until the climate of opinion has advanced sufficiently to accept true equality.