House of Lords
Inheritance (Cohabitants) Bill [HL]
(11 years, 7 months ago)
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Lord Lester of Herne Hill
My Lords, in 2008 I introduced the Cohabitation Bill to give legal rights to financial provision for those in cohabiting relationships in the event of separation or death. It won wide support but was strongly opposed by the noble Baroness, Lady Deech, who, I am delighted to say, will take part in this debate. The Labour Government were sympathetic but awaited the outcome of the experience in Scotland, where the law is already in place. I am hopeful that my previous Bill, or a similar Bill, will be reintroduced in the near future.
Like many other countries, the Republic of Ireland gives legal protection to so-called common law marriages. It may surprise some that our law is well behind that of the Irish Republic. The Republic has a redress scheme for cohabiting couples under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, which came into force on 1 January 2011. I hope that my noble friend Lord Marks of Henley-on-Thames will be able to introduce a Bill of his own to give effect to the Law Commission’s proposals on that wider issue of cohabitation rights. I can tell the House that this Bill has the support of the noble and learned Baroness, Lady Butler-Sloss, and my noble friend Lady Hamwee, neither of whom can be present today.
The present Bill is much more limited than the previous Bill but it is of real practical importance. It was drafted by the Law Commission for England and Wales—not by me—following its consultation on intestacy and family provision claims on death. For anyone who is interested, copies of the Law Commission’s rather long but important and well informed report can be obtained from the Printed Paper Office. The report sets out the Law Commission’s proposals to improve and clarify the law on intestacy and family provision. Those measures of law reform will particularly benefit women and children, and relieve the taxpayer of unnecessary burdens.
There is a special procedure for Law Commission Bills on non-controversial subjects, and the commission considers that most of its proposals can be dealt with in a non-contentious way. The Government have until the end of the year to respond to its report and I hope that they will be able to do so positively.
Meanwhile, the Law Commission considered—in paragraphs 1.100 to 1.105—that, because it is controversial to enhance the rights of cohabiting couples, it would be necessary to deal with that subject by means of a separate measure. It therefore drafted this Bill, which I have taken up in the hope that it will be given a Second Reading and, in due course, perhaps enacted together with a non-contentious Bill, as the two are part of each other.
When the Law Commission reviewed the law on intestacy more than 20 years ago, it rejected reform of the intestacy rules to take account of cohabitants. However, it recommended the inclusion of cohabitants as a separate category of applicant under the Inheritance (Provision for Family and Dependants) Act 1975. That recommendation was enacted in 1995 and took effect from 1 January 1996. Since then, a person living in the same household as the deceased, and as the husband or wife of the deceased for a continuous period of two years before the death, has been entitled to make a claim for family provision from the estate. That right has since been extended to same-sex couples—see paragraph 8.7 of the report.
Meanwhile, the prevalence of cohabitation has increased enormously. As the Law Commission noted in paragraph 8.21 of its report:
“Cohabitation is no longer an insignificant minority choice, nor a socially unacceptable lifestyle”.
In 2006, of those aged under 60 and unmarried, 24% of men and 25% of women were cohabiting in Britain. By 2010, around 7.5 million people were living in cohabiting families, representing more than 15% of all families. The Office for National Statistics indicates that the number of cohabiting couples in England and Wales will increase from 4.7 million in 2008 to 7.6 million in 2033. Cohabitation is widespread and will become more so.
The Law Commission’s research shows that cohabitants are among the people least likely to have a will and so most likely to die intestate. The National Consumer Council found that only 17% of cohabitants had made a will. The Law Commission’s research showed that court awards to cohabitants under the 1975 Act can result in the award of significant sums that make long-term provision for the applicant and recognise the lifestyle that the couple enjoyed. However, awards are limited to provision for the applicant’s maintenance, rather than being on the more generous basis used to make awards for spouses. Crucially, a cohabitant’s only route to a share of their deceased partner’s estate on intestacy is through litigation, or the threat of it, under the 1975 Act. The Law Commission comments that that can create significant hardship for cohabitants. That was shown by personal responses to its consultation.
The Law Commission’s research indicated that some cohabitants choose simply to move out of the family home rather than go through the costs and stress of litigation and that in other cases the cohabitant may not be aware of the right to claim at all under the 1975 Act. Where the cohabitant is caring for children from her or his relationship with the deceased, any claim will be against those children’s entitlement under the intestacy rules. Litigation is therefore likely to involve the added expense and emotional turmoil of having the children involved, and being separately represented, in proceedings essentially aimed at reorganising the estate to make the family finances workable.
The hardship of the current situation is caused mostly by ignorance of the law. Specifically, cohabitants believe themselves to be common-law spouses after a certain period of time, with all the rights of married or civil-partnered couples, and discover that this is not the case only when their partner dies. The report covers this in paragraphs 8.9, 8.17, 8.24 and 8.25.
The Law Commission’s report notes those who were opposed to change. It deals with all the consultation responses very fairly by explaining both sides. Among those in favour were professional groups such as Resolution, representing most family law solicitors, the Family Law Bar Association, the Law Society and the Office of the Official Solicitor. However, some professional groups oppose the change that would be accomplished by the Bill. Among them were judges of the Family Division and the Chancery Division of the High Court, and the City of Westminster Law Society. The Law Commission used the Nuffield survey on attitudes to will-making and succession for statistically significant evidence of public opinion.
The ability to inherit rests on commitment and financial interdependence. It is the financial interdependency that has practical implications for the cohabitant’s future after bereavement. Sharing a household and bringing up children increases interdependence, which only deepens over time. When that interdependency is terminated by death, hardship results. The report covers this in paragraph 8.18. The Law Commission found strong support for cohabitants to have an entitlement on intestacy, but it recognised that indicators of commitment were essential. The report covers this in paragraph 8.40.
Since I tabled the Bill, my office has received letters and e-mails of support from those whom the Bill is designed to help. These are people who, having cohabited for decades and shared their finances and the upbringing of their children, are passed over by the law in favour of other relations with whom the deceased had no or little contact prior to death. They face long, costly litigation, as well as the stress of uncertainty at a time when they are already suffering from grief.
The Law Commission recommended that certain “qualifying cohabitants” should be included in the list of those who benefit by default under the intestacy rules. The report covers this in paragraph 8.42. This is the change that the Bill accomplishes. The report explains its recommendation.
Clause 1 of the Bill amends the Administration of Estates Act 1925 to place a “qualifying cohabitant” in the same position as a spouse or civil partner. Clause 1(5) introduces the two conditions of being a “qualifying cohabitant”, only one of which needs to be met. This is similar to the Irish Act that I mentioned and also to the Scottish, Canadian, Australian and New Zealand legislation on similar themes. Clause 1(5) states:
“The first condition is that during the whole of the period of five years ending immediately before the intestate’s death the person was living as the intestate’s spouse or civil partner and in the same household as the intestate”.
The five-year period was arrived at because a shorter period would risk catching unawares some elderly cohabitants and overriding a positive decision to remain unmarried and so avoid incurring legal responsibilities. A longer period would exclude many of the people the Bill seeks to help. The report covers this in paragraph 8.85.
The second alternative condition is that the cohabitant lived as the intestate’s spouse or civil partner in the same household as the intestate for the whole of the period of two years ending immediately before the intestate’s death; and is the other parent of a child of the intestate who was born on or before the date of the intestate’s death; and at that date the child was living in the same household as that person and the intestate. In other words, two years with child, five years without.
The two-year period where the couple have children was arrived at in view of the existing legislation which takes two years as the threshold for making a claim against an intestate’s estate and because it demonstrates a relationship of some permanence. When combined with the fact of sharing children, indicating financial interdependence, seriousness and commitment, the two-year period is sufficient to justify entitlement but prevents the cohabitant from picking up an inappropriate entitlement where the presence of children is an unreliable indicator of commitment and interdependence. Those people who do not satisfy the two-year period but have children with the deceased will, under Clause 3, be able to apply for family provision under the 1975 Act. The report covers this in paragraphs 8.96 to 8.101.
Clause 2 extends to a qualifying cohabitant the current law that, under certain conditions, a surviving spouse or civil partner may use the value of any inheritance from the deceased’s estate and, if necessary, any additional funds to acquire the deceased’s interest in the family home in which the spouse or civil partner lives.
The Bill closes an important gap in the rights and needs of cohabitants and their children. Whereas spouses and civil partners whose partners die intestate are not placed in additional hardship because of the intestacy regime, cohabitants and their children are at risk. The Bill removes the necessity and expense of litigation to individuals and the taxpayer by facilitating inheritance in the event of the death of an intestate cohabitant. It remedies part of a greater injustice and will make some people’s lives a little easier following a bereavement.
I believe in marriage, which may seem old-fashioned, but the Bill does not undermine marriage. It respects the choices made by unmarried cohabiting couples, or the lack of choice through ignorance, and gives some protection to them and their children in the event of death. I hope it will lead to necessary law reform. I beg to move.
Baroness Kennedy of The Shaws
My Lords, I pay tribute to the noble Lord, Lord Lester, for introducing the Bill. This House often groans when lawyers seem to dominate debates and I often hear the proud declaration being made by non-lawyers when they stand to speak that they are untainted by law and that they come as sensible lay persons. However, I believe that occasionally a lawyer has something to contribute, and if there is one lawyer who should be marked out for his seminal role in legal reform from the 1960s to this day it is the noble Lord, Lord Lester. He has been at the heart of almost every great legal reform towards a fairer and more decent society, where discrimination is jettisoned and compassionate and just outcomes are sought. Women particularly have gained considerably from his efforts.
The Bill echoes many of the campaigns and arguments the noble Lord has made over time for legal reform. Indeed, he made a similar argument, which I supported, in 2004 when the law was reformed to create civil partnerships for gay couples. We argued then, as now, that there are miserable consequences for committed unmarried heterosexual couples when one of them dies. Losing the home they have shared and in which they have brought up their children is often a consequence of the death duties they are required to pay under our current intestacy and tax regimes.
I see the Bill as part of the slow progress towards equal justice. The resistance to change has always been about preserving marriage, based on the notion that cohabiting couples have a remedy—to get married. Indeed, I know couples who have lived together for many years and when they have turned 50, and suddenly felt the hints of mortality, they have rushed off to the registry office.
I want the House to understand the misconceptions that exist within our wider society. People think that living together as common-law man and wife, as they describe it, provides them with protections that in law do not exist. That is a common misperception and much of the research in this field shows that such views are widely held. The law has to reflect changing social reality, and many couples in the United Kingdom, as the noble Lord, Lord Lester, said, live together as a family unit and bring up their children like any other couple. The predicament they face on death, particularly early death, is unjust.
Yes, as the noble Lord, Lord Lester, described, they can make a case under the 1975 legislation and they can apply to the estate for maintenance, but I remind the House about the changes that have been made to legal aid and the kind of stress and emotional turmoil that is created for families if they have to take that route.
I say to opponents that Members of this House, for the most part, have enjoyed longevity—we are usually much older than the people who might make use of the Bill—and it may be that over our lifetimes we can see the purposes of marriage and the reasons for preserving it. A powerful argument is that a public statement of commitment is important. Whether it is in the eyes of God or only in the eyes of your community it provides an anchor in the challenging business of sustaining relationships. That is the argument to make for the importance of marriage, not the finding of mechanisms around the laws of intestacy, which work so powerfully against the interests of, particularly, women and children.
The loss to the Treasury, which may be in some people’s minds, is not as significant as the savings to the state in many other ways. Families who are left unable to continue living in the family home, for example, end up having to be provided for by the state because they are in extremis and unable to function in the way that they once did.
I hope the Government and the House will support the Bill. To argue that this is somehow an attack upon marriage is to misunderstand the purposes of this effort to change the law.
Baroness Deech
My Lords, I speak to express the strongest opposition to the passage of a Bill that, in a nutshell, will mean a further disinheritance of the children of the many marriages in this country that have ended in divorce, or who were born into unmarried and later broken relationships. It would also, if enacted, amount to an intrusion into private informal relationships—one might even say a denial of the human rights of privacy and respect for family life. There will be no avoiding the long reach of the law and lawyers, even for those who have chosen to live in a way that suits them but not the frameworks of the system. The Bill would transfer wealth from the children of the deceased to his or her cohabiting partner
In its report on intestacy in 2011, the Law Commission recognised the controversial nature of this proposal, which is why it separated it from the rest of its recommendations on intestacy in a separate Bill. It said that its proposal to change the law to give preference to cohabitants’ survivors recognised the vulnerability, intimacy and interdependence of the deceased’s relationships and the impact of bereavement on the partner. But what about the vulnerability and interdependence of the deceased’s surviving children, and the impact of bereavement on them? If enacted, the Bill would simply reverse the burden of challenge on intestacy away from the cohabitant—which is where it is now—on to the family. Cohabiting partners of the deceased already have a way to seek provision from the estate on intestacy, or from a will, under the Inheritance (Provision for Family and Dependants) Act 1975. The Act’s terms were relaxed in recent legislation. The Law Reform (Succession) Act 1995 enables a cohabitant of two years’ standing to make a claim without the need to prove dependency, which had been a former requirement. The judges who responded to the Law Commission consultation on intestacy in 2009 pointed out that in such circumstances the matter is better settled by judicial discretion, in rearranging the estate to accommodate the cohabitant if necessary, than by a fixed share which takes most of it away from the children.
Under the existing law, most such claims by cohabitants versus family settle before hearing. Now that there is an official family law arbitration service, claims need not cost as much as they do in court. It is notorious that intestacy claims can be so bitterly litigated that they eat up the disputed assets and the lawyers are the only beneficiaries. In Scots law, the Family Law (Scotland) Act 2006 does not take this Bill’s approach. The cohabitant’s claims against the deceased’s estate are a matter of discretion, with an upper limit of what a spouse would have received. In doing the calculations in Scotland, the court can take into account the pension of the deceased that may well have been paid to the cohabitant because the deceased hereto can nominate her. In this nation too, the pension can be nominated in favour of the cohabitant and the tenancy will probably automatically pass to her on death; so will the house, if in joint tenancy. The cohabitant might be married or living with someone else too, but that is no bar to a claim. We are not talking of utter deprivation.
To summarise the reasons for opposing this Bill—in addition to children’s rights and human rights arguments—the existing judicial family provision regime is the most appropriate way to decide these issues. It is quite possible that the deceased person did not want his cohabitant to inherit; there will be increased litigation by the blood family against a claimant cohabitant; and many people who know the law want their autonomy, as I will show shortly. Those who do not should be made aware of the situation. There is no more unpleasant and protracted litigation than that between a first wife and children on one side, and on the other the second partner of the deceased man. Although the case of Sherrington—which I know about because the deceased was a friend of mine—was about marriage not cohabitation, the deceased, Richard Sherrington, left everything to his second wife of a short marriage and nothing to his first wife and three adult children. The litigation went on for six years and cost nearly £1 million. It involved minute descriptions of the relationship with the second wife. This would happen in cases more often, and similarly unpleasantly, were this Bill to become law, when of necessity there would be disputes about the duration and nature of the cohabiting relationship.
The Bill is particularly insensitive at this time when there is much consideration of same-sex marriage. If these proposals were to go ahead, we would have a society containing separate regimes for heterosexual and, maybe in future, same-sex marriage, civil partnerships and cohabitation, and family members living together, all with different rights and duties. We need a complete, unified appraisal of all such relationships and no more piecemeal tinkering with legal rights deriving from different forms of sexual relationships that attract attention at any time. The Bill provides that if two people live together for five years, or two years with their child still with them, the surviving cohabitant should take the spousal share of the estate of the intestate cohabitant, provided he was not married to someone else or in a civil partnership. Under the current law that sum is £250,000, with the rest of the estate divided between the partner and the children. If there are no children, then the figure would be £450,000. Since the estates of most of those who do not make wills is smaller than this, in effect the cohabitant survivor would take everything. It is not clear from the Bill whether the exemption from inheritance tax that applies to the married would also apply here.
More than half the population do not have a will. Those who are in possession of significant sums are much more likely to make one than those who do not. So if passed this Bill would in general affect the less well-off. Of the married population, 45% make a will, but only 17% of cohabitants; presumably because they have no belief in any legal consequences of their living styles, whereas the married do. Moreover, cohabitants are more likely to be young, have fewer assets and be less settled. The median age for making a will is 69 for men, 73 for women. In response to the Law Commission’s consultation on cohabitants and intestacy, on which this Bill is based, 40 out of 79 respondents clearly opposed reform. That is hardly an overwhelming consensus in favour of reform. Those respondents who were in favour were in the main the organisations that have a professional interest in this topic, mostly lawyers: Resolution, the Chancery Bar Association, district judges, the Society of Trust and Estate Practitioners, the Law Society, the Family Law Bar Association, the Family Justice Council and the Official Solicitor. Those who were opposed to the proposals were the judges of the Family Division and the Chancery Division, and individuals. The Law Commission seemed to weight more heavily the responses that favoured regulation.
In another survey, by Williams, Potter and Douglas, it was discovered that younger respondents were less likely to favour cohabitants’ shares than the older. This may be because the young are more likely to cohabit—it peaks in the 20s—and are more aware of the transient, experimental nature of many such relationships. The Law Commission’s main reasoning was that people who live together are ignorant of what their rights might be. This is not an argument that prevails elsewhere in the law; nor does it appreciate quite how well informed the public are in their way, as I shall show. The Law Commission’s consultation paper on this topic did not pay sufficient attention to the crucial question of the deceased’s children by another woman, as distinct from whether he had no children or children by the cohabitant. The proposal that someone who has not committed himself or herself by marriage, or even by making a will, should leave all his or her property to the cohabitant, not his children, makes no sense.
The reported cases of cohabitants’ claims are about childless estates. At most, a life interest in a small share for the cohabitant is all that could be regarded as fair in the circumstances, so that if necessary the cohabitant avoids being in need but does not disinherit the children on her death. The National Centre for Social Research, whose 2010 survey was relied on by the Law Commission, put to people scenarios about intestacy to check their response. It posited a woman dying intestate, which is rather different from the situation most of us think about when we are concerned with this. Even so, less than half the surveyed people would give all of the estate, or priority, to the partner, even after a 25-year cohabitation. With a baby on the scene in the hypothetical short partnership, less than half would give all or priority to the partner, and the majority would give all or some to the baby. In a long childless union of, say, 10 years, only 53% of those surveyed preferred the partner over the deceased’s parents as beneficiaries. There was a strong feeling that the children should not be disinherited and that the partner should get something, but not the lion’s share. As I have said, a life interest in a maximum of 25% would be fair enough.
However, one should not just listen to the professional organisations, as the Law Commission did, without listening to ordinary members of the public who are not being fed possibly leading questions. Whenever I have lectured on this, I have received hundreds of letters opposing more law for cohabitants, but I will not personalise this. I shall quote from the many blogs that have appeared in the Guardian—not the Telegraph:
“I have no intention of allowing my daughter’s inheritance to be diluted by my new or former partner”.
“This is a ridiculous idea. One of the main points of marriage is to show commitment”.
“I knew I didn’t want to marry her, but we stayed and lived together for over a year, so sometimes you live together but aren’t sure”.
“If these proposals are accepted, then the state will effectively marry people whether they like it or not, after a certain number of years. I strongly object to this. The decision for a person to marry should be for them to make and them alone. If accepted, this proposal will effectively strip individuals of the right to live no-strings-attached”.
“I am not for it because some people who cohabit do not believe at all in marriage and all it entails. Cohabitation is a trial run. I am sick to the back teeth about these calls for cohabitee rights. Why should I be denied the right to live with a partner on my own terms because for some bizarre reason some people who wish to live as married do so without actually marrying or setting out their affairs to protect themselves? This proposal is illiberal, complicated and impractical ... it is important to have a clear distinction between marriage and cohabitation so that people know where they are”.
“When is the state going to recognise that cohabiting couples are adults who choose to live their lives that way precisely because they don’t wish busybodies—either religious or state sponsored—poking into their personal affairs”.
“The idea of being treated like a married person when I’m not is just ghastly”.
“This is a very regressive suggestion. It’s also classic nanny state. Want a share in your partner’s money, then ask for it (by marriage)”.
“I was really hoping that this stupid proposal for a new law would go away”.
“The blood sucking lawyers would love the opportunity to leech off a group of people who have either arranged things to suit themselves thus not needing the assistance of the legal profession or simply do not want the law butting into their lives … who in their right mind will live with anybody again unless very committed to the relationship … (they will usually get married anyway)”.
“Totally, totally illogical. It’s marriage by default, folks! Can’t you people see that?”
“People have a legal right to be single and that is that”.
“Extending quasi marital rights to those who have not chosen to enter into a legally binding agreement is not fair at all”.
I could go on because I have pages of these quotes, but to spare noble Lords, the final quote is:
“They move the goalposts so that despite not being married, you can still get your wallet nicked”.
So it is the principled issue of legal recognition of cohabitation that the public is looking at. I will not go into the details of how the definition of cohabitation is dealt with in this Bill, save to make the following general comments on the difficulty of recognising it. In the absence of any legal ceremony or document, how are all those who get involved in probate and death, the family and the officials, to know that there was a cohabitation? Even being together for five years does not necessarily signal permanent commitment of the sort that would attract the legal effect of extending beyond the grave for all time to come at the expense of the family. The fact of sharing a household for two years with a child does not obviously mean that the survivor should get the first £250,000. Who is to know whether the relationship was a sexual one, for even marriages are not always sexually defined? If one person shares a home with another who dies, what is to stop the first falsely claiming that their relationship was intimate?
One has to question, as I have done before, why property transfer applies only to couples in what was presumably a sexual relationship that has ended, and not sisters. Once marriage is abandoned as the clear blue line for legal responsibilities, then logically all relationships—sibling, incestuous, polygamous or whatever—should be treated equally. It is hard to see why it is the sexual element that elevates certain relationships for financial reward, even though they are no more or less co-dependent than others. The result, if this Bill is passed, might be forensic investigation to see whether the relationship that is alleged did actually exist, and more pressure on resources at the time of death, adding to the administrative difficulties that exist at that time anyway; and maybe it would give rise to a new breed of serial cohabitants who stay for one year and 51 weeks if there is a child or four years and 51 weeks if not.
At the time of death, it has been predicted by probate genealogists in relation to this Bill’s effects that much time would have to be expended on searching electoral rolls, tenancy agreements, utility bills and interviewing family members to establish the situation if there might be a cohabitant survivor. It will be hard to know if the person who steps forward to obtain the grant of representation is really the cohabitant, for it would be their task to obtain the grant, not the family members or children. There could be delays of years in settling some estates while this goes on and pressure to settle even where there is no real claim.
Lord Lester of Herne Hill
I am grateful to the noble Baroness. Has she looked at jurisdictions in other countries where there is similar legislation that works perfectly well?
Baroness Deech
My Lords, family law in this country does not always follow other countries; sometimes we learn from them. Indeed, sometimes I wish we had followed Scotland when it comes to dividing up proceeds on divorce, but that is another issue.
What about the unregistered Muslim marriage with several surviving legally unmarried “wives”—are they to share?
We come down to the most fundamental issues in death and life—human rights and care for one’s children. We have heard the views of some members of the public. There is a human right to live privately that risks being breached here. Some older divorced and widowed people want companionship, rather than to live on their own, but do not marry again precisely in order to preserve their estate for the children of an earlier marriage. Private adult choices should be respected. There should be no imposition of legal regulation on those who actively choose not to marry and who refrain from making a will, maybe in the belief that their existing family would thereby be protected. If there is hardship for a surviving cohabitant, we have judicial discretion under existing law to remedy it without this shift away from the family that the Bill would bring about. Many say that marriage is just a piece of paper, a lifestyle no superior to cohabitation, and that cohabitants are as committed as any others. So why do those same people want to attach heavy legal significance to cohabitation, mimicking marriage?
I have great sympathy for the younger generation today, who face tuition fees and mortgage burdens vastly heavier than was the case for my age group. If any generation needs care on the death of a father or grandfather it is the young, not the peer group. To deprive them of their inheritance could make all the difference to accessing higher education or buying a house. The cohabitant who might be entitled to the estate under this Bill could well be married to someone else at the time of the deceased’s death, or enter a future marriage or relationship carrying with her the inheritance, gone forever from the deceased’s blood family, to her new family. I see no reason to downgrade the family members in favour of a partner when the deceased did not actively choose to do so. It is not fair to remove maintenance from the children when we have a high divorce rate and widespread failure by men to support their children in their lifetimes. The children who stand to be disinherited by the provisions of this Bill may be the same ones whose support was neglected by their father during his lifetime. The children will have to incur the expense of challenging the intestacy provision rather than the partner: that is the real import of this Bill.
In their responses to the Law Commission, judges said that the child should take priority. Children have no choice in the matter, but the cohabitant survivor may move on to another life and other methods of support. I urge the House to express its principled arguments against this Bill.
The Lord Bishop of Manchester
My Lords, the Bill introduced by the noble Lord, Lord Lester of Herne Hill, provides a valuable opportunity to consider issues that are of considerable and increasing importance for a large number of people in our society. Reference has already been made to the Law Commission’s 2007 report in which proposals were made for addressing the financial hardship suffered by cohabitants or their children on the termination of their relationship by separation or death. That report followed an extensive consultation exercise by the Law Commission in which the Church of England was pleased to participate.
Our starting point was, and is, that marriage is central to the stability and health of human society, in particular, the faithful, committed, loving, permanent and legally sanctioned relationship between a man and a woman which marriage affords and which continues to provide the best context for the raising of children. For that reason, it warrants a special position within the social and legislative framework of our society. Since marriage contributes to the common good, there is a very strong case for pursuing public policies that promote and encourage it. The other side of that coin is that there is an equally strong case against legislating in a way that makes marriage simply one of a number of choices on a consumerist model.
Nevertheless, as the General Synod affirmed in 2004, the Church of England recognises that there are some issues of hardship and vulnerability for people whose relationships are not based on marriage and that they need to be addressed by the creation of new legal rights. The question for the church is how Parliament, working for the common good, can make proper provision for those who face such hardship and vulnerability while recognising the overarching gift and blessing that marriage provides not only for a couple themselves but also for the wider community.
Adequate steps should be taken to prevent manifest injustice for those who do not bring themselves within the legally recognised institution of marriage or indeed civil partnership. While there are some couples who make an informed decision not to do so, injustice can arise where there is inequality in the respective financial positions of cohabiting parties—I speak here from close family experience. The less financially secure partner might well wish to formalise the relationship, but the other partner may seek to avoid the responsibility that goes with that and decline to do so. The partner in the weaker financial position is then vulnerable as a result and may face hardship if the couple separate or if the other partner dies without having made proper financial provision for the survivor. This sort of hardship can be particularly acute in cases where the couple have a child or children which one of them is then left to look after.
On the face it, therefore, the guiding principle behind the Bill—to alleviate hardship and injustice, especially where one partner dies without making adequate financial provision for the survivor—ought to be welcomed. I do, though, have some concerns about whether the measures set out within this Bill provide the best or the right way to go about addressing what clearly is a real problem.
First, the Bill limits itself to matters of inheritance. That is, of course, an important aspect of the wider set of issues concerned with financial provision for cohabitants, but is it a good idea to address this particular aspect in isolation? If we do, will we not end up with a piecemeal approach to the wider problem? For, at some point, we will need to address the equally important question of what provision should be made for cohabitating couples who separate. The issues of hardship can be equally acute in those circumstances, as I know. Would it not be better for the Government to bring forward proposals that addressed the wider issue, so that a consistent and principled approach could be decided on and applied across the various aspects of financial provision for cohabitants?
Secondly, and perhaps more significantly, the Bill would put a “qualifying cohabitant” in precisely the same position as a surviving spouse or civil partner for the purposes of the legislation that deals with inheritance and intestacy. It would also put a qualifying cohabitant in the position of a spouse or civil partner in cases where the deceased partner had made a will but where it was argued that the provision made in the will did not amount to reasonable financial provision. In conceptual terms, that is of course very neat: it simply assimilates the surviving cohabitant to the position of a surviving spouse or civil partner.
But is that necessarily the right principle? Taking marriage vows or registering a civil partnership is a particular step that a couple choose to make. They make it in the knowledge that it has consequences in terms both of the personal relationship between the partners and of their legal rights and responsibilities towards each other. Cohabitants have clearly not taken that step. It is therefore far from clear that they should be treated for the purposes of the law of inheritance as if they had. The partners would in effect acquire a de facto legal status simply on the basis of things that they had done—living together, becoming parents—but without having made any particular formal commitment to one another and without voluntarily taking a particular status upon themselves. That seems to be a questionable approach for the law to take to people’s relationships.
Some would doubtless argue that, instead of going down this route, government attention and resource might be better focused on ensuring that those in cohabiting relationships more fully understand their legal rights and entitlements and that they be encouraged to take responsibility for making proper legal provision for the other if their relationship status did not automatically confer it.
An alternative approach that the church advocated in its response to the Law Commission consultation is one that I believe still merits serious consideration. The focus would not be on imposing a legal status on couples who had not chosen to enter into marriage or civil partnership; rather it would be based on alleviating hardship in particular cases. It is not obvious that the fact of cohabitation for a minimum period, the length of which would necessarily be arbitrary, should of itself give rise to legal rights. The alternative approach would be legislating to enable financial provision to be ordered where it could be shown that a cohabitant would otherwise suffer manifest injustice as a result of the relationship coming to an end. Financial provision, therefore, would not be automatic; it would be directed to the alleviation of particular instances of injustice, which could include making provision for children of the relationship. That broad, principled approach could be applied equally to the situation where a relationship between cohabitants had ended by separation or indeed by death.
Although I do not think that the Bill here gets things quite right, I am very grateful to the noble Lord, Lord Lester, for introducing it and thereby enabling this debate. This is a subject that we need to address, not least to protect the vulnerable and to prevent injustice, while also affirming, as the noble Lord has done, the huge importance of marriage. We on these Benches would welcome a more comprehensive set of proposals from the Government than I am afraid this Bill, at this moment, appears to offer.
Baroness O'Cathain
My Lords, I oppose the Bill because I believe in the importance of marriage. Before continuing, I have to say that we have had very thoughtful contributions from all speakers. Most have been clear, but there have been some legal situations that I, as a non-legal person, cannot really put my head round. I will, however, make some conclusions at the end of my speech. My first concern is that the Bill would undermine the special place of marriage in our society. Marriage is already under sustained attack from our Government, as shown by the plans for the redefinition of marriage currently being pushed forward. It would be further devalued by the Bill.
In his proposals, my noble friend Lord Lester effectively equates marriage and cohabitation in law. Marriage and cohabitation are not, and should not be, regarded as equivalent. Marriage is defined by law as a life-long, exclusive commitment; a commitment publicly made by both husband and wife from the outset. In stark contrast, cohabitation is not a commitment. It is a transient relationship whose defining characteristic is that the man and woman have chosen not to marry, or to have a life-long commitment.
Studies have consistently shown that there are substantial differences in the stability of the relationship and the impact on children between married couples and those who cohabit. The 2000 British Household Panel survey involving 10,000 adults concluded that,
“cohabiting unions last only a short time before being converted into marriage or dissolving: their median length is about two years”.
These findings were later endorsed by the Scottish Government in Family Matters: Improving Family Law in Scotland in 2004. According to the Centre for Social Justice, fewer than 10% of married couples split up by the time of their child’s fifth birthday, compared to 33% for cohabiting couples. The centre also pointed out that 97% of couples who stay together until their children reach adulthood are married.
By equating the rights of married couples and those who cohabit, we are effectively saying that they are equal. I cannot understand why, in the name of equality, we constantly seek to iron out fundamental distinctions between relationships. Marriage is not a private arrangement between a man and woman: it brings together not just two people, but two families. In bringing together families, marriages build the communities on which everyday life is based. Married families form the bedrock of local communities and assist in tackling social problems such as loneliness and isolation which are so widespread. The right reverend Prelate the Bishop of Manchester referred to many more positive values brought to society by marriage.
We should therefore promote and protect marriage. The Bill typifies a narrow, blinkered approach which, while purporting to help individuals, actually serves to harm everyone by undermining the cornerstone of society. To give cohabitants the same legal protection as that which married couples receive at the death of one spouse fosters the impression that it does not matter whether you marry or cohabit. In giving cohabiting partners and married couples the same legal safeguards, public perception of marriage will be further weakened. In effect, it would send the message that commitment is of no consequence. Is that what we really want to do?
My second concern is that the Bill appears to be unnecessary. Cohabiting couples anxious about what should happen when one of them dies have two perfectly viable options open to them: they can get married, thereby receiving the benefits and protections currently provided, or they can plan carefully by making wills to ensure that provision is made for their cohabiting partner upon death. Here, we really ought to do something to ensure that every adult makes a will. So many people die intestate. That is great for lawyers but not for family members, such as children, husbands and cohabiting parties. I know of many supposedly intelligent people who will not even bother making a will. They say, “I am only 50; I am going to last to the age of 86”, or whatever. It is ridiculous. Why do we not make a bigger point of that?
In listening to the debate, one clear issue has come to the fore—namely, ignorance, as my noble friend Lord Lester called it, that there is no such thing as automatic provision on death to the surviving cohabitant. In other words, there is no such thing in legal rights as a common-law wife or husband. It was only relatively recently, within the last 10 years or so, that I realised that there were no legal rights there. There is a widespread perception that there is such a thing as a common-law wife or husband. That there is not should be stated time and again until there is universal knowledge of the situation—although the noble Baroness, Lady Deech, thinks that the belief is pretty universal. She shocked us with those quotes. I wholly support the comments of the right reverend Prelate the Bishop of Manchester on the issue.
As an aside—the noble Baroness, Lady Deech, referred to it but my noble friend Lord Lester’s Bill does not make this point—married couples have the benefit of inheritance tax relief whereas cohabiting couples do not. Currently, the taxation system recognises those who have made a commitment. Are we to downgrade commitment? The inheritance rights afforded to married couples are available to cohabiting couples—they have just rejected them by not getting married. There is clear evidence, as noted by the noble Baroness, Lady Deech, that many cohabiting couples do not want these rights. They have chosen not to marry because they do not want the legal ties involved. The Bill may be presented as not much more than a tidying-up exercise. It is a lot more than that and should be opposed in principle.
Lord Grantchester
My Lords, I am aware that I have no experience and little knowledge on this subject so it is with trepidation that I make my few remarks. I approach the Bill in general agreement with the sentiments behind it. After all, it seems very benign. It is always important to recognise the current reality of more and more people’s lives. As I have been asked to act as a trustee for friends’ and relations’ trust settlements, I thought I should look at the Bill to see whether it had relevance to that. It was then that I began to have reservations. I am concerned that I have not seen any thought given to how it may affect the wills and settlements of others. My anxiety stems from the definition of “cohabitant”. In the Bill, it seems to ape marriage and civil partnership, applying to those in a relationship without a marriage or partner certificate.
The primary reason behind the Bill seems to be to save the surviving cohabitant the trouble of making a claim when, after all, the cohabitant did not want to go to the trouble of formalising their relationship. I make this rather provocative remark as I understand that more and more awards are being made against claims coming forward under the 1975 Act. Why not consider other cohabitants who would also be valid, such as friends sharing a property together who could equally claim to be disadvantaged on the death of one of them intestate? The surviving cohabitant may end up losing his or her home.
I have learnt that stringency has been further relaxed in that there is no longer recognition of dependency. However, there is no recognition either that this new provision in giving advantage to one must necessarily disadvantage another. Are these the only considerations? Could the Bill actually do harm? I thought I had better look at the Law Commission report, Intestacy and Family Provision Claims on Death. It was then that I understood why the definition of cohabitant has been so drawn up. It appears that the Law Commission has drawn it up so that cohabitants will be able, at some time in the future, to make claims in any relationship breakdown.
The Bill’s definition makes way for that extension; it is consistent with that objective and would serve as a first step on the path. Paragraph 8.78 on page 167 states,
“we had in mind the Cohabitation Report, in which we recommended that cohabitants who have children together should have an entitlement to financial remedies on separation, and that there be a minimum duration requirement of between two and five years for eligibility for those who do not have children”.
That is very contentious. The report mentions the increase in cohabiting over the past 10 to 20 years. However, trust provisions have a long lifespan and may well have been drawn up with a different outlook than pervades today. I am sure that the noble Lord, Lord Lester, will know far better than me the difficulties, hurdles and complexities in making amendments to settlements which have been silent on cohabitation. What advice would he give a settler who did not intend the desire to help descendants to result in provision being dissipated among cohabitants?
Has the Law Commission undertaken research into cohabitants, in the number and circumstance a person today may have? Your Lordships will recognise that it is barely a year since prenuptial agreements have been recognised in court, which was not a unanimous decision. Presumably, we should also be anxious that people have pre-cohabitation agreements. The objection may be raised that that is irrelevant to the Bill; I contend that that is naive. In reading the Law Commission’s report, I was also struck by the consultation undertaken on the issue. Paragraph 8.36, on page 160, states:
“There is no overwhelming consensus in favour of reform”.
I am concerned that the Bill is premature and needs to be examined for all its implications before proceeding.
Lord Browne of Belmont
My Lords, while I recognise that the Bill is motivated by the best of intentions to ensure that injustices do not occur with respect to cohabitation and intestacy, I believe that its net contribution would be negative. There has been far too much legislation in recent years, and the Bill will add to the complexity of family law without increasing its fairness.
The underlying premise of the noble Lord’s Bill seems to be that because the automatically available protections for the surviving partner, with respect to the estate of the deceased partner, are so limited, the law surrounding cohabitation should be changed. That ignores two facts. First, if a couple want to access protections, they have the option of marriage. Secondly, if they do not wish to marry but to avail themselves of protections, they can. The primary available remedy to them is found in the writing of a will, providing for what will happen on death and avoiding either intestacy or diminishing disputed claims by family relatives against the surviving cohabitant. Other available remedies include letters of wishes, nominations and assignments of pension and life policies, a simple deed of trust, a cohabitation contract and powers of attorney.
I am aware that some may respond, “Yes, that is true but we still need to change the law because so many couples do not avail themselves of these protections”. I struggle with that argument, which seems to me profoundly illiberal. Changing the law so that cohabitees who have been together for more than two years and have children, and cohabitees who have been together for more than five years and do not have children, become effectively, in some real sense, married seems profoundly anti-choice. It offends the choice of those who wish to cohabit but not marry and have not chosen to avail themselves of any of the additional protective mechanisms that are available to them in law. It also offends the choice of those who are prepared to make the very significant—but very worth while, I might add—sacrifice that marriage involves. When a couple marry, they make a public “Till death us do part” commitment that is recognised in law and so it consequently seems logical that the level of protection surrounding their relationship should be more robust than that for those who have not made that commitment.
The truth is that we live in a culture that is increasingly nervous about commitment. If people can get automatic protections without anything remotely resembling the level of the marriage commitment, the rationale for marriage is eroded to some not insignificant degree. The truth is that society badly needs conscious, explicit and deliberate public commitment. We should be encouraging commitment, not creating a new legal framework that makes it less necessary. That is why the Prime Minister is exactly right to seek to encourage commitment by promoting the policy of recognising marriage in the tax system.
That point is very relevant to today’s debate. As the Secretary of State for Work and Pensions pointed out in February 2011, it is particularly striking that, despite the current fear of commitment, 90% of young people still aspire to marry. Why then do they not? It seems very likely that it is partly because the operational public policy context is such that it makes marriage too difficult.
The truth is that for the year 2010, the tax burden in the UK on a one-earner married couple with two children on average wage was a staggering 52% greater than the OECD average. Of particular interest to me is the fact that the tax burden on such a family as a proportion of that placed on a single person on the same wage was 74.5%, while the OECD average was just 51.4%. That differential highlights the extraordinary fiscal individualism of our tax and benefit arrangements compared with other developed countries—the vast majority of which recognise marriage in the tax system—which makes commitment so much harder here than elsewhere.
Those findings are hugely important, because the social science evidence is so clear that marriage is beneficial for society, helping both adult and child well-being. In particular, marriage is a far more stable environment than cohabitation. That is crucial for children, whose development is much stronger, on average, in a stable two-parent rather than a one-parent family. Moreover, as the Minister, the noble Lord, Lord Hill, pointed out in your Lordships’ House on 10 February 2011 at col. 389, this benefit is not actually a function of standard of living. The poorest 20% of married couples are more stable than all but the richest 20% of cohabiting couples.
Mindful of those considerations, it seems to me that rather than striving to make the option of cohabitating, commitment-light relationship easier, we should prioritise making the expression of the public, lifelong, “Till death us do part” commitment that is marriage no more difficult in the UK than in comparable developed countries.
Finally, although current law is in some cases unsatisfactory, rather than introduce a dramatic change in the law, especially equivalence to marriage, it would be better to acquaint and educate cohabitants with their lack of legal protection and make them aware of the existing remedies available.
Lord Harries of Pentregarth
My Lords, for a variety of reasons, spiritual human and societal, I, too, am a strong supporter of the institution of marriage, but I recognise that there are other kinds of relationship which give rise to responsibilities and rights for which it may be appropriate that legal provision be made. One of them is the situation which the Bill is intended to address.
Unlike some of your Lordships, I do not believe that making appropriate legal arrangements to safeguard the position of a surviving cohabitee and, where present, any children, in any way undermines or weakens the institution of marriage. Marriage is too robust for that, and I am sceptical of the idea that making the actual provision for a surviving cohabitee lessens the incentive for people to get married in the first place. I do not believe that people get married for financial motives. I have no difficulty in imagining and understanding the situation of someone dying intestate. Let us say that the couple are in their 30s, they have lived together for two years and have just had a child. The idea of making a will was the last thing on their minds. Then the main earner gets killed in a car accident. In such a situation, it is entirely reasonable that the law should make it as straightforward as possible for the surviving cohabitee to claim what money is available for the support of themselves and the child.
The Centre for Social Justice has produced a very useful briefing paper, raising a number of doubts about this Bill. It seems to raise two questions in particular that are very important for us to address. The first concerns the position of any other children who the deceased might have. Do not they have first call on any available money? This has of course been raised very powerfully by the noble Baroness, Lady Deech. However, as that paper sums it up succinctly:
“Children from the intestate’s previous relationships would be in a particularly vulnerable position, since the surviving cohabitant would have no obligation towards them. Such children would be able to bring a claim against the surviving cohabitant under the 1975 Act to claim an interest in their deceased parent’s estate, but this would simply reverse the current situation where a cohabitant has to claim against the children. The bitterness and difficulty of litigation is likely to be unchanged”.
I entirely agree that children from any previous relationships have a claim but the question is whose is prior: those children’s or that of the surviving cohabitee and any children of that relationship?
It is reasonable to assume that the relationship the person was in at the time of death is the one to which the deceased would have given priority. After all, at the time of death that is where they were physically committed. We cannot speculate on what was going on in their mind but we know for a fact that they were living together, had done for some time and may have had a child together. I agree that under this Bill there will continue to be the possibility of legal dispute if there are any other children who claim under the 1975 Act. However, it seems that either way, whether we go with this Bill or some alternative that gives a prior assumption to a claim of the children of previous relationships, there is always the likelihood or the real possibility of litigation. It seems there is no escaping that. The question is where the first claim on the estate should lie. I suggest that it should lie, as this Bill assumes, with the surviving cohabitee and any children of that relationship.
The noble Baroness, Lady Deech, raised the particular question of the children from a previous relationship who might, for instance, be expecting some help for their university education—an understandable situation. However, let us suppose that the first marriage had ended in divorce after 20 years and that the children are now perhaps 17 or 18 and waiting to go to university. In that situation, it seems highly likely that the couple will already have made a will. If the new relationship had lasted for five years, again, there would have been plenty of time during that period for the previous wife and husband and their children to have negotiated the financial aspects of the will. While that is a very real issue to consider, it is perhaps not as pressing as the situation that I mentioned before.
The second point that I wish to address from the briefing paper concerns the situation of the deceased cohabitee still being married or in a civil partnership with someone else; at least, they were before they died. In such a situation the Bill makes it clear that the surviving partner would not be the immediate beneficiary, and it is right that they should not be. If a marriage or civil partnership still legally exists—however broken in reality—that is where the priority for the estate rightly lies. The briefing paper comments:
“If the aim is to protect those who were living with the intestate and dependent upon him or her, then there seems no reason to exclude cases where the intestate was married or in a civil partnership”.
However, as I have suggested, those cases should be excluded. It is therefore true that the Bill will not give total protection to the surviving cohabitee but the point is whether it will give as much protection as possible, given all other legal considerations. Other legal obligations quite rightly have to be taken into account: in this case, the existence of a previous marriage or civil partnership. The issue is not whether it gives protection in all possible circumstances but whether it gives the maximum possible, taking other legal obligations into account.
The right reverend Prelate raised doubts about giving some kind of legal status to cohabitation and prefers an alternate system where an order might be made if the person is in need. However, it seems that the advantage of this Bill is that if a person dies suddenly, at least there will not be a protracted period before such an order is made. They will have some sense of financial security almost at the moment that they learn of the death and what the legal situation is.
I am happy to support this Bill, which may not affect vast numbers of people but will enable some to be more financially secure than they are at the moment. I think of the person who suddenly loses the person they have been making their life with, while expecting that life to go on, and it therefore never crossing the mind of either of them that they ought to make a will. They may have been imprudent but that is not the point; the law can make provision for them and I believe that it should.
Baroness O'Loan
My Lords, the issue of what happens to cohabitants of long standing who are left behind when their partner dies is one which has caused problems for thousands of people over the years. The Law Commission undoubtedly recognised that in its 2011 report. The noble Lord, Lord Lester, does a public service in introducing this Bill, which is carefully worded by the Law Commission to provide limited protection for surviving cohabitants and their children and recognises the rights of surviving spouses and civil partners and any children. I am pleased to support the principles articulated in this Bill. This is not a new matter and there has been speculation in the public domain for many years about whether any Government would ever have the courage to tackle this issue. The Bill is concise and carefully drafted so as to give effect only to the recommendations made by the commission.
There can be little doubt that there are now many people for whom cohabitation is the preferred choice of living arrangements. The 2011 Office for National Statistics report states that the number of cohabiting couples rose by 34%, some 292,000, and that the number of partners in marriage or civil partnership with dependent children fell by 319,000. The evidence shows that, for many people, living together is not just a temporary trial-run situation but rather that there are people for whom this is a life choice. Some 2.9 million couples have made this decision, according to figures released in 2012. In 2011, 38 per cent of cohabiting couples were parents—the same percentage as married couples with children—and 31 per cent of live births in 2010 were to women cohabiting with but not married to their partner, up from 25 per cent since 2001. The choices made by such people have consequences, which may be way outside their comprehension or expectation and which will affect not only those in the cohabiting relationship but the children of such relationships. Our social structures are clearly changing.
We also have some 7.6 million marriages or civil partnerships without children. Not all marital relationships have children and not all cohabitees have previously been married. Intestacy could simply result in an estate reverting to the state because there is no surviving spouse or children or others entitled to inherit under intestacy. It is a wider issue than the children of an existing marriage. We talk loosely of common law marriage and, as noble Lords have said, there are assumptions that rights exist in this context. Yet for intestacy purposes there is no such category as common law marriage. If one partner in a cohabiting relationship dies intestate, his estate will be dealt with in accordance with the law, and the law makes no current provision for cohabiting partners or the children of such relationships. They have no inheritance rights and probably will not know that they have the right to make an application to the court under the Inheritance (Provision for Family and Dependants) Act 1975 for an order varying the distribution under the intestacy rules or indeed, if there is a will, under that will. As has been said, they may well be reluctant to pursue such an application, given the inevitable public disclosure of their situation, the costs, the familial and other unpleasantness that may ensue and the uncertainties of any such action.
All those difficulties will be compounded by recent changes to legal aid. Those who have married will no longer have legal aid support when the marriage that was for life proves not to have been so and to have broken down. As a consequence, there are many situations that will leave more people in the situation where they cannot effectively leave their marriage, and they will be left with no option other than cohabitation. What will happen at present in most cases where there is intestacy is that those people will have to leave the house that has been their common home, often for decades. They will be left without any inheritance where the deceased has not made a will to indicate how he or she intends to dispose of his or her assets. That will almost inevitably lead to significant hardship. The reality is that the majority of people in this country do not leave more than £250,000 when they die, and that significant hardship may well not have been what the deceased would have wished to see.
The Bill introduced by the noble Lord, Lord Lester, proposes not that all cohabitants should have a right to inherit but rather that only qualifying cohabitants should be so entitled. The definition of “qualifying partners” is tightly drawn to include those who have lived together for a period of five years or a couple who have lived together for two years and have a child or children born on or before the date of death of the deceased partner who was living with the deceased at the time of death, so there are many conditions that must be satisfied.
The periods involved are relatively short, given that the effect of the Bill may be to deprive those who under the current law would be entitled to inherit any estate. It is important to recognise that effect. There will be cases, however, where those who are entitled under current law to inherit have no knowledge of the existence of the cohabiting spouse and the children who would now become entitled to inherit. That is a profoundly difficult situation. However, this is about securing a balance in competing rights in order to bring greater equity to the situation.
I accept all the evidence that shows that marriages last longer than cohabiting relationships, but there are cases where, for a variety of reasons, people who have previously been married are unable to secure a divorce for very long periods and, as a consequence, may be forced into cohabitation. People are making choices that leave them vulnerable and, very often, significantly disadvantaged. On death, it may emerge that a couple whom everyone thought were married had in fact been cohabiting for decades. The surviving cohabitee will face a change in their life situation that will go far beyond the loss of their partner.
The Bill simply seeks to treat cohabiting partners in the same way as those who are married or in civil partnerships for the purposes of intestacy, provided that they satisfy the conditions, and to extend the range of individuals entitled to claim under the Inheritance (Provision for Family and Dependants) Act 1975. In the interests of consistency, it would be desirable that the proposed rights under Clause 1(7) extended not only to cohabiting partners but also to the issue of such relationships in the same way as new subsection (1C) of the Inheritance (Provision for Family and Dependants) Act to enable all the parents of children to benefit, including those children who were en ventre sa mere at the time of death.
I am a passionate supporter of marriage; I have been married for 37 years, and I worked for about 16 years preparing young couples for marriage. The Bill seeks to provide necessary protection. If the Bill is not the route, then I submit that there are very serious issues that require to be addressed in this context.
Lord Marks of Henley-on-Thames
My Lords, I am grateful to the House for permitting me to speak in the gap. I had not put my name down to speak because I was not clear that I could be here for the whole of the debate. I strongly support the Bill because it addresses a serious and important injustice, which is that under the present law cohabitants, on the death of their cohabiting partners, are left entirely without means of support.
I have listened carefully to the arguments against the Bill, particularly those put by the noble Baroness, Lady Deech. She argues, supported by a number of quotes, that there are many who choose to cohabit rather than marry, and many who would not wish their cohabiting partner to inherit. Such people can of course make a will, making it clear that they do not wish their cohabiting partners to inherit. What we are dealing with here, though, is the default position. Under the present law, a right of challenge or a right to apply for provision is available to people under the 1975 Act, and that will remain the position. However, when one is looking at what the default position should be, I entirely agree with the noble and right reverend Lord, Lord Harries of Pentregarth, that for most intestates, and for society in general, the first priority should normally be given to the relationship in which the deceased was living at the time of his or her death. The Bill, with its modest but important proposals, addresses that priority and gets it right.
I entirely accept the point made by the right reverend Prelate the Bishop of Manchester in suggesting that attention needs to be given to the needs of separating couples who cohabit. I accept that that needs to be answered, and indeed have made that position clear in this House before. I hope to introduce a Bill in due course that will give effect to the proposal of the Law Commission that there should be limited provision for cohabiting couples who separate in those circumstances. However, that is not the Bill before the House. This Bill addresses a limited but important proposal made by the Law Commission, and I urge the House to give it our support.
Baroness Thornton
My Lords, I thank the noble Lord, Lord Lester, for his able, comprehensive and indeed brief introduction to the Bill. I am not going to speak for long because most of the things that need to be said on this issue have already been said. However, I want to say that these Benches support the Bill; we did in Government and we do so now. Indeed, I agree with Professor Elizabeth Cooke, the commissioner who led the review, when she said:
“When a family member dies the process of grieving and of adjustment to change can be made far worse by uncertainty and anxiety about money or belongings. It is vital that the law remains relevant and up to date, reflecting the reality of modern society and reasonable expectations of those who have been bereaved”.
The words of my noble friend Lady Kennedy, the noble and right reverend Lord, Lord Harries, and the noble Lord, Lord Marks, are the right, compassionate and fair way to look at this issue.
It would be amazing if there were agreement in your Lordships’ House about such an issue, and I respect the fact that noble Lords have concerns, which they have expressed today. However, I confess that I was saddened by the tone and content of the remarks by the noble Baroness, Lady Deech, which seemed to unnecessarily overstate the effect and exaggerate the malign purpose of this, I think, rather modest Bill; I agree with the noble Lord, Lord Marks.
The first thing that needs to be said on the whole issue is that we have to emphasise the importance of people drawing up wills. I think that the whole House would agree with that, and it is important that we do everything that we can to encourage people to do that. We do not oppose the extension of the qualification to cohabitants under intestacy. I thank the noble Lord, Lord Lester, for introducing the Bill, and we wish it well.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, I am grateful to the noble Baroness, Lady Thornton, for that response indicating the attitude of the official Opposition to the Bill. I do not follow her entirely on the subject of the contribution of the noble Baroness, Lady Deech—or, indeed, any of the contributions. This has been a robust but courteous debate. Indeed, it brought to mind when the Communist Party of the Soviet Union had its secret conclaves: it always used to issue a statement saying that a meeting had taken place and, “a full and frank discussion had been conducted in a comradely atmosphere”. I felt that that was exactly what we did today. It was a good example of the House dealing with a subject where there are strong feelings and passions on both sides but both sides, while putting their views robustly, also listen courteously. That was helpful to the Government in addressing this and helpful in promoting the broader debate that we would like to see on this issue. Of course, it also helps, as the noble Baroness, Lady Thornton, said, if the fact of this debate gets home to people two sensible pieces of advice: first, make a will; and, secondly, common law protections do not exist.
The noble Baroness, Lady O’Cathain, said that it was only recently that she became aware that the urban myth of the protection of common law marriages was non-existent and I came to that knowledge similarly late in life. I grew up with the understanding that there was such a thing as common law marriage with in-built protections. The introduction of the Bill is extremely important, timely and useful in a process that is under way. We got the right mix between the lawyers and those to whom the noble Baroness, Lady Kennedy, referred as “untainted by law”.
The tenor of the discussion has been about protections for cohabitants, protections for the institution of marriage and a desire to get clarity and understanding in a way that, as the noble Lord, Lord Browne, said, does not add to the complexities of the legal system. My position, almost instinctively, is to want to support proposals by the Law Commission. I am a greater support of its work, and of the new fast-track approach in this House to Law Commission reports. I am equally deferential to any ideas put forward by my noble friend Lord Lester. His track record is such, as the noble Baroness, Lady Kennedy, pointed out, that if he makes a proposal, one should take into account the firm consideration, good research and fierce commitment behind it.
I should, however, make it clear that the Government have concerns about the Bill, and explain why. It is interesting that we had 10 speakers and, if a Division had been called, we would have had a dead heat: there were five speakers on either side. That gives a sense of why the Government are a little cautious, as well the fact that a number of speakers said that perhaps this subject should be part of a more comprehensive and considered approach to these issues.
The Bill addresses two questions. First, what should a cohabitant be entitled to inherit on the death, intestate, of his or her partner? Secondly, when should such a cohabitant be entitled to bring a claim against the estate of his or her deceased partner for financial provision under the Inheritance (Provision for Family and Dependents) Act 1975? Under the law, there may be provisions made for a cohabitant under a will, but there is no provision for cohabitants under the intestacy rule. In many cases, the allocation of property under the will or the intestacy rules will be the end of the matter but, in some circumstances, the surviving cohabitant may be able to make an application to the court for reasonable financial provision under the Inheritance (Provision for Family and Dependents) Act 1975. If this application for family provision, as it is generally known, is successful, the resulting court order overrides the terms of a valid will, if there is one, and similarly overrides the intestacy rules where they apply.
My noble friend’s Inheritance (Cohabitants) Bill would equate the position of some habitants with that of spouse and civil partners under the intestacy rules and improve their position under the 1975 Act. Certain cohabitants would therefore be promoted above blood relations on intestacy. These proposals follow the recommendation of the Law Commission in its 2011 report. The Law Commission explained that it has taken the unusual step of including two Bills in its report, because reform of the intestacy rule in favour of cohabitants is rather different from the rest of the recommendations in that report, which relate to the law of intestacy and family provisions more generally.
The commission said that what is now the subject matter of my noble friend’s Bill is more contentious and more likely to be subject to more intense levels of debate than the remainder of the recommendations. This morning’s debate demonstrates the wisdom of that. The commission also commented that,
“this issue has the potential to be divisive and contentious”.
Again, I think that it got that right.
I am not going to try to pre-empt the Government’s decision in relation to the Law Commission recommendations this morning, but it is clear from the nature and contents of, and issues raised in, the debate that there are significant discussions and examinations about this issue still to go on. The Bill would promote the interests of the surviving cohabitants over those of the children of the deceased on intestacy. A number of noble Lords have raised the issue of the problems that that causes. Putting certain cohabitants on the same footing as spouses and civil partners in relation to intestacy would significantly shift the boundaries of what the average person is deemed to be likely to want to happen with his or her estate.
The Law Commission published its report, Cohabitation: The Financial Consequences of Relationship Breakdown in July 2007. In that report, the commission recommended a statutory scheme to create, as a default position, certain legal rights and obligations for living couples who meet the relevant criteria. The Government announced in September 2011 that they did not intend to take forward the Law Commission recommendations for reform of cohabitation laws in this parliamentary term. Proceeding with the present Bill would separate out the law relating to the ending of a cohabiting relationship during life and on death. This is not to suggest that the law in these situations is perfectly aligned at present, but it will be considerably less so if this Bill is enacted. I am not certain that this will be a good development.
In saying this, I acknowledge the arguments of my noble friend and the Law Commission that the reform relating to the property rights of the cohabitants where a relationship is ended by death are distinct from that and should be considered independently of the commission’s recommendations for the reform of the law relating to the property rights of cohabitants where a relationship is ended by separation. However, there is a reasonable view that the rules relating to the end of a cohabiting relationship by death and by separation should be considered together.
I am second to none in my admiration and support, as I have said, for the Law Commission and my noble friend Lord Lester’s work on these and other issues over the years. I have supported his approach to proposals on many occasions in the past and I am absolutely sure that I will do so in the future. I know that my noble friend and the Law Commission would not propose reforms that are anything other than carefully thought-out and technically correct, and supported by a large body of opinion. I acknowledge that there are cases under the present law where the intestacy rules and the family provision rules may operate harshly against people who would under this Bill be qualifying cohabitants.
However, the reforms we are considering in the Inheritance (Cohabitants) Bill are the legal stuff of everyday life. They would affect a large number of people over many years. Such reforms should be carried forward by as broad a consensus as possible of all reasonably minded people. I am not certain that such a consensus yet exists. Indeed, I think that today’s debate underlines the lack of such a consensus.
I am also mindful that while there are arguments to distinguish between the law’s treatment of living and dead cohabitants, there is at least some merit in viewing the living and the dead as part of a continuum that should be dealt with consistently as a whole, rather than piecemeal, which again was a point made by a number of noble Lords in their contributions. The urgency of the case for reform must surely be diminished by the ease with which cohabitants of all kinds can make provision for one another on death by the relatively simple expedient of making a will.
The Government will reply to the Law Commission’s recommendation in due course and in the usual way, and I am not prejudging that decision today. However, I must make clear at this stage that, while the Government obviously will not oppose Second Reading, we have strong reservations. However, I want to say to my noble friend that, as so often, by raising a debate through a Private Member’s Bill and by attracting the kind of contributions that have been made today, he has taken the debate forward in a very constructive way.
I am in a happy position, which is not always the case when one is summing up and has to look through 27 questions asked of the Minister during the debate. But I kept full notes, which, along with the Hansard record of this debate, will be part of the background against which the Government will ultimately make their decisions on this matter. We obviously will not oppose Second Reading and I look forward to my noble friend’s response.
Lord Lester of Herne Hill
My Lords, I am very grateful to everyone who has spoken in this debate. The House will be glad to know that I shall not seek to reply to 23 questions in what I am about to say. I am especially grateful to those who have spoken against my opinions. I always like to hear the other point of view and I remember that the spirit of liberty is the spirit that is not too sure that it is right. I am not sure that everyone always remembers those wise words, once spoken to me by my noble and learned friend Lord Howe of Aberavon.
This is of course a controversial Bill, which is why it was separated from the larger Bill. In her very full speech, the noble Baroness, Lady Deech, said things about the Law Commission with which I do not agree and I would respectfully remind her that the chair of the Law Commission is none other than Lord Justice Munby, an extremely experienced chancery and family law judge. Professor Elizabeth Cooke is the great authority in this area. Of course, the Law Commission is not immune from criticism but I thought that some of the criticisms were not fair.
As the noble Baroness, Lady Deech, said, it is true that the Bill would largely affect the less well off, which is its purpose. The tone of what was said was a bit scornful about cohabiting couples and their children—probably inadvertently. I also think that it is important to look at what other countries have done, including the Irish Republic, which is at least as committed to marriage and to religion as are the people of this country.
Of all the speeches I listened to, the one I found the most important from my point of view was that of the right reverend Prelate the Bishop of Manchester. The thrust of what he said was that piecemeal reform is all very well but one needs to think about more comprehensive reform. I agree with that, which is why in 2008 I introduced my Cohabitation Bill, based on the Law Commission’s proposals, to try to do something broader. That was only four years ago. It took 30 years to get the Human Rights Act, 13 years to get the Equality Act and four years to get the Civil Partnership Act. I hope that we do not have to wait until there is a Labour Government before we can get that kind of comprehensive reform, because it may take a very long time indeed. I hope that although we are in a coalition Government, both partners to the coalition may come to see the wisdom in dealing with the injustices faced by cohabiting couples, the lack of legal protection and how it is the taxpayer above all who has to pick up the pieces because of the inability of successive Governments to tackle the problem.
I was very grateful to the noble Baroness, Lady Thornton, on behalf of the Opposition, for indicating her support in such warm and generous terms. That is a very important statement. The previous Government almost did the right thing. In 2008, they wanted to do the right thing but it came very late; so they said, “Let’s wait and see what the Scots have done”. The Scots have dealt with the problem and the evidence is clear.
I should deal with one point raised by the noble Lord, Lord Grantchester. He asked, “What about other than cohabitants? How are they to be dealt with?”. The answer to that is that the Government have to respond to the wider recommendations of the Law Commission, I think, by Christmas on the general regime of intestate succession and family provision. We are dealing here only with this little Bill.
If the House gives a Second Reading to this Bill, as I hope it will, I propose to do nothing until the Government have responded, as they must, to the main Law Commission report. I want the Government to have the opportunity to think carefully not only in relation to that broader Bill but also to this Bill as it might fit in. I have enormous confidence in the persuasive powers of my noble friend Lord McNally in being able to convince some of his colleagues that perhaps agnosticism is not good enough and that on this subject we need a bit of action. In fact, we need more than a bit of action: we have waited too long with successive Governments doing nothing at all. The victims are the children and the bereaved in partnerships, especially among the poor and the not so rich. I agree with those who said that the withdrawal of legal aid has aggravated that position greatly. Therefore, there is all the more need for clarity in our law and for a safety net. I will not say more at this stage. I know that a very important debate is about to happen. On that basis, I beg to move.
Arrangement of Business
(11 years, 7 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Stowell of Beeston
My Lords, the next business is the Second Reading of a Private Member’s Bill. As was the case with the previous Bill, Second Readings do not carry any speaking time limits and I do not want to suggest anything different to that today. However, as we are starting this Bill at noon, noble Lords might welcome some guidance on speaking times if we are to rise at three o’clock, which is the usual convention on Fridays. Apart from the noble Baroness, Lady Cox, and those noble Lords speaking from the Front Benches, if Back-Benchers were to speak for about nine minutes we should rise at about 3 o’clock in the normal way. However, as I say, I will not try to police that or intervene in any way.
Arbitration and Mediation Services (Equality) Bill [HL]
Baroness Cox
My Lords, I am most grateful to all noble Lords speaking in this debate and to many other noble Lords, too many to mention by name, who have expressed their support for the Bill but are unable to be here today. The Bill seeks to address two interrelated issues: the suffering of women oppressed by religiously sanctioned gender discrimination in this country; and a rapidly developing alternative quasi-legal system which undermines the fundamental principle of one law for all. The Bill is strongly supported by many Muslims and by Muslim women’s organisations such as Inspire, as well as by the Iranian and Kurdish Women’s Rights Organisation, the Henna Foundation, Karma Nirvana, British Muslims for Secular Democracy and the National Secular Society. I am grateful to them all for their support.
Awareness of the need for the Bill arose from mounting evidence of serious problems affecting some women in this country from the application of Sharia law. I immediately reassure your Lordships that I am not anti-Muslim. Indeed, I am deeply concerned that Muslim women enjoy their full legal and civil rights under the law of this land. If women from other faiths experience comparable problems of systematic discrimination, the provisions of this Bill would also be available for them as it does not name any religion.
The problems I will highlight often arise because many women believe that Sharia courts are real courts and do not know that they have other rights under English law or they are pressured by their family or community not to seek those rights outside their community. I give two examples of the kinds of problems afflicting women in this country. I have met these women and witnessed their distress. One suffered such severe domestic violence that she was hospitalised. She was pressured by her family not to seek help from the police as this would bring “shame” on the community. She went to the local Sharia court or council and was told to return to her husband. She did so and suffered more domestic violence. Then her husband divorced her, went back to his country of origin and returned with a second wife. As a devout Muslim, she wanted a religious divorce to allow her to remarry in accordance with her faith but the Sharia court demanded her marriage certificate which her husband’s family kept. Attempts to retrieve it resulted in violence in the name of “honour”, as she was blamed for bringing shame on the family by seeking a divorce. Seven years later this devout and desperately lonely Muslim lady is still unable to obtain her divorce and remarry.
Secondly, a Muslim widow wanted to remarry but was told by the Sharia council or court that she must obtain the permission of a male relative. She had no male relative in this country so she had to travel to Jordan to obtain the written permission of a seven year-old boy relative in order to be able to remarry in this country. It is not surprising that another young woman complained, “I feel betrayed by Britain. I came to this country to get away from all this but the situation is worse here than in my country of origin”.
Other examples concern children. Under Sharia law a father who divorces his wife can claim custody of his children once they reach the age of seven. This gender discrimination violates the fundamental legal principle in this country that custody should be determined according to the best interests of the child. These examples are just the tip of an iceberg as many women live in fear, so intimidated by family and community that they dare not speak out or ask for help. A lady came to see me in my home. I shall never forget seeing her hide behind a tree because she was so terrified of being seen. We should not have such fear in this country.
The first fundamental concern my Bill seeks to address is the development of a parallel quasi-legal system based on inherently discriminatory principles. This may involve proceedings operating under the terms of the Arbitration Act or it may involve less formal community forums for resolving disputes. While some operate in ways which are not problematic, others give cause for the second and related concern that many women suffer from gender discrimination in these contexts. This discrimination includes unequal access to divorce as between a husband and wife. A husband can obtain a divorce merely by saying, “I divorce you” three times, whereas a wife has to go through all sorts of procedures at a Sharia court or council. It also includes tolerance of certain forms of domestic violence, a man’s right to polygamy, inequality between men and women with regard to child custody and inequality with regard to inheritance provisions. It even affects rules of evidence, since under Sharia law a woman’s testimony counts for half that of a man’s.
Let me make clear what the Bill does not do. The Bill does not interfere in the internal theological affairs of religious groups. If people wish to submit voluntarily to the rulings of any body, religious or otherwise, even if that means surrendering their rights under English law, they are free to do so. The Bill does not force them to give up religious law or abnegate conscience in favour of the law of the land. The Bill also recognises existing legally sanctioned forums for arbitration, including Muslim arbitration tribunals or MATs and various forms of mediation available in religious or secular contexts. The Bill will not affect the continuation of these provisions or their growth and development in accordance with the law of the land.
Let me here acknowledge valid concerns raised by the noble Lord, Lord Marks, and others, and say that I accept the need to amend the Bill to reflect recent developments in relation to family law arbitration. I intend to remove the references to family law in the new criminal offence created by the Bill. Family law arbitration will therefore continue to be permitted. However, the non-discrimination provisions of the Bill will apply. Therefore, this will not be an obstacle to mainstream family law arbitration, but will reinforce the need to address sex discrimination in religious arbitration.
I now turn to some specific concerns and how the Bill addresses them. The Arbitration Act 1996 facilitated the establishment of arbitration tribunals. Some operate according to Sharia law. They allow parties to settle certain civil, largely financial, disputes in such a way that the arbitration awards can be enforced in UK courts. However, there is a concern that even when these tribunals are operating within the terms of the Arbitration Act, some are practising sex discrimination. For example, a tribunal in Nuneaton adjudicated on an inheritance dispute between three sisters and two brothers and, in accordance with Sharia law principles, the men were given double the inheritance of the women.
Some arbitration tribunals appear to act outside their legal remit. The MAT claims on its website to be able to hear disputes involving,
“allegations of money squandering/misappropriation”.
There have also been reports of MATs dealing with acts of grievous bodily harm. An investigation by Edna Fernandes, reported in the Daily Mail on 4 July 2009, concluded that,
“scores more imams dispense justice through their own mosques”,
and that,
“sharia is being used informally within the Muslim community to tackle a plethora of crime”.
The Arbitration Act does not empower MATs to arbitrate on criminal matters, and it is surely unacceptable to condone a situation where non-Muslim offenders get a criminal record, but Muslims do not. My Bill would make it a criminal offence to falsely claim legal jurisdiction. Any person who purports to arbitrate in any matter which is within the jurisdiction of the criminal courts would be liable, on conviction, to a maximum penalty of five years in prison.
One report has estimated that there are at least 85 Sharia forums in the United Kingdom. As far as we can ascertain, the Sharia courts or councils keep scant records, and have no right of appeal. There is nothing like the control over justices’ appointment and conduct that apply in secular courts. Most do not operate under the Arbitration Act. Instead, they informally resolve disputes under what is loosely termed “mediation”. As I have said, many women wrongly that think these informal tribunals are real courts and submit to their rulings accordingly.
The Bill cannot solve every problem, but it does offer one opportunity for redress. Where a negotiated agreement is formalised in a consent order, the Bill would make it easier to set aside the consent order if it was reached under duress, or where a party’s consent was not genuinely informed—for example, where a woman was not aware that she would have had different rights according to UK civil law. Also, my Bill would make it easier for women who are unhappy with discriminatory rulings to apply to the courts to have them overturned on the grounds of gender discrimination. The Bill also strengthens the power of the police and courts to protect victims of domestic violence from coercion and intimidation. It also enhances the public sector equality duty. For example, police, social workers or healthcare workers interacting with Muslim women would be encouraged to explain to Muslim women how their legal rights are diminished if their marriages are recognised only under religious law and not civil law. Many women have described how they are discouraged from having a civil as well as an Islamic marriage. This gives rise to grave problems, especially when, as often happens, a husband subsequently divorces his wife, leaving her with no civil rights.
In conclusion, as these are such complex, sensitive and delicate issues, I intend to request the Liaison Committee to consider the subject for one of the ad hoc committees in the New Year, or to establish an independent committee of inquiry to enable a wide range of views to be presented, reflecting a broad spectrum of experts and personal testimonies, and those with concerns about the Bill. A full report will be made available which will, I hope, help greatly to clarify many of the issues, explore ways in which the Bill can be amended to make it more appropriate, and open up these issues for broader public discussion.
We cannot continue with the present situation in which so many women are suffering from gender discrimination in our country today in ways that would make the heroines of the suffragette movement turn in their graves. We must address the danger that a parallel de facto legal system may become entrenched, thereby undermining the fundamental principle of our liberal democracy: the principle of one law for all.
Lord Eden of Winton
My Lords, I congratulate the noble Baroness, Lady Cox, on her eloquent and well informed speech, and I thank her for introducing the Bill and for all the hard work that I know preceded it. The noble Baroness is a redoubtable and fearless campaigner. For many years, she has worked tirelessly to alleviate the suffering of oppressed people, many of whom, in far away places, are the victims of despotism, discrimination and prejudice. Without her persistent efforts, it is certain that their yearning for a peaceful existence would never have been acknowledged. The noble Baroness has shone a light into some of the world’s darkest places. People crying out for help have found in her a determined and committed champion.
The plight of women in male-dominated societies is of particular concern to her. There are practices enforced in this country which deprive women of fair, let alone equal, treatment. Sharia courts actively discriminate against women, especially in matters affecting family relationships. Their rulings in such cases are directly contrary to the laws of this land. They deny equality of treatment for women and it is near impossible for the injured party to obtain redress though our civil courts.
In the United Kingdom, we rightly pride ourselves on being tolerant and generous towards people of other cultures whose faith may differ from our own. But we must guard against the encroachment of practices hostile to basic concepts of British justice. We might take note—careful note—of the current debate in Egypt, where attempts are being made to agree a new constitution. In today’s International Herald Tribune, Roger Cohen, writing from Cairo, reports on the conflict there between liberals and Islamists. A new draft article states:
“The state shall take all measures to establish the equality of women and men in the areas of political, cultural, economic and social life, as well as all other areas, insofar as this does not conflict with the rulings of Islamic Shariah”.
As Roger Cohen puts it:
“The phrase ‘rulings of Islamic Shariah,’ offers no wiggle room. It contradicts the provision elsewhere in the draft constitution that, ‘All citizens are equal before the law, equal in their rights and public duties, there shall be no discrimination between them on grounds of sex’”.
In Egypt, the ultra-conservatives are making a strong bid to outmanoeuvre and overturn the moderates. We must be vigilant to be certain that nothing similar could happen here. It needs to be stated firmly that attempts to impose on British citizens—of whatever faith—a set of rules that run counter to the laws of this land are wrong. Parallel courts are unacceptable. For all our citizens we must be alert and active in protecting and preserving the very foundation of our civilisation—namely, equality of treatment under the law. It is to that end that the Bill is dedicated. I hope that it gets a favourable wind to carry it forward to the statute book.
Baroness Donaghy
My Lords, I thank the noble Baroness, Lady Cox, for her Bill and support it in principle for two reasons. First, as a former chair of ACAS, where arbitration and mediation are its bread and butter, I feel strongly that the law in this area should not be brought into disrepute. Secondly, as someone who has played a part in fighting for the rights of women, I feel that we cannot allow the clock to be turned back.
ACAS uses both mediation and arbitration. Arbitration is where two or more parties agree on an independent person who will decide on their dispute. The terms of reference have to be mutually agreed beforehand and there has to be acceptance of the final outcome. Mediation involves a neutral person trying to help the parties to a dispute identify common ground and reach a mutually satisfactory agreement. It is the parties which settle, not the mediator.
ACAS has panels of experts for both arbitration and mediation and I believe it is still one of the jewels in the crown of our national services. That is all the more reason therefore to be concerned about the many reports that mediation and arbitration are being confused in the name of the law and that their remit is sometimes unclear and sometimes exceeded. I am also concerned that the definition of mutuality is sometimes being stretched to such limits that a women is said to consent to a process when in practice, because of a language barrier, huge cultural or family pressure, ignorance of the law, a misplaced faith in the system or a threat of complete isolation, that mutuality is as consensual as rape.
Listening to and reading some of the stories of women who have experienced some of the abuses of a system that claims to follow Sharia law take me back to women’s rights 45 years ago. I lived in Chiswick Park, where a women’s refuge had just been opened for victims of domestic violence. It was not called domestic violence of course; it was called “domestics”, as if it was some kind of cleaning product. The police would never get involved in “domestics”. If you were a man, you could batter the living daylights out of a woman and the police would not get involved, mainly because a woman would never dream of going to the police. The people who ran the refuge were regarded as weirdos and the women who were desperate enough to flee there were often shunned by their own families.
All this was brought back to me when I listened to some of the women asking for this change in the law. My own experience at that time was that I went along to the electricity showroom—which still existed— on Chiswick High Road to take out a hire-purchase agreement on an electric fire and was told that I needed my husband’s signature, for something I was paying for. I turned into a feminist overnight. I am not trying to compare something as trivial as the hire of an electric fire to decisions now being taken on behalf of women about their marital status, inheritance or personal safety. However, I am trying to remind the House that it is not that long ago historically that women were unequal before the law, that “domestics” were not a police matter and that women lived in fear and anonymity.
As long as some women live in fear and are trapped in their situation, we should act. The Government may well feel that this Bill is unnecessary as the law in this area is adequate. I would argue that turning a blind eye to fear and exploitation is not adequate. I do not believe that this is confined to Sharia law or the Muslim religion. These parallel laws that discriminate against women exist, sometimes, in other religions. It is important to emphasise that this is not an attack on one particular religion or, indeed, on any right to worship. It could also be said that the Bill does not go far enough and that it is too weak to make a difference. I would argue that this can be dealt with by means of amendments to the Bill.
No one pretends, as the noble Baroness, Lady Cox, said in her able and moving speech, that passing this Bill into law will solve all the problems of women who live in fear and at risk of exploitation. However, it is about equal rights for women and will go some way to promoting what one of the campaigners called,
“a shared vision of citizenship”.
I support the Bill.
Lord Carlile of Berriew
My Lords, along with other noble Lords who have spoken so far in the debate, I pay tribute to the noble Baroness, Lady Cox, for introducing this Bill, which I too support strongly in principle. The noble Baroness has shown extraordinary commitment to this issue and has prepared extremely well, including many other noble Lords on this issue. This debate is as well informed as any debate that occurs on a Private Member’s Bill. We can also rely on the noble Baroness to tell the House when there are new issues, which we may not have noticed, that are concerned with the safety and rights of women around the world. As it happens, on my way to your Lordships’ House this morning, I heard a horrifying report on the BBC’s “Woman’s Hour”, which described how the abhorrent practice of breast ironing of teenage girls may have been carried out in this country. I apprehend that this may well be the next issue that the noble Baroness, Lady Cox, will be discussing in your Lordships’ House. There is a great deal to do on women’s rights and nobody can be relied on more than the noble Baroness to draw our attention to these issues.
There has been a good deal of lobbying on this Bill, and I commend to your Lordships material that has been made available, certainly to me, by the Southall Black Sisters. That material is extremely detailed, very cogent and provides a guide to the Committee stage or any independent consideration of the issues in this Bill.
The abolition of legal aid in many spheres, particularly its reduction in relation to family law, places women and their children in a very difficult position. I am not a religious person myself so do not feel any sense of antipathy to any religions. If I have an antipathy to religions, it is to all of them, not some of them, and I wish to be clear that what I say is not directed at any particular religion. I also recognise that some tribunals based on religious organisations provide very valuable assistance to those faced with litigation or potential litigation, particularly in the commercial sphere. As your Lordships know, I am a member of the Bar. I would say, as a member of the Bar, that my learned friends need no additional commercial transactions to litigate over. If anyone can save money by resolving disputes by other means, that is to be encouraged. However, there is evidence that mediation through Sharia courts is not mediation in any real sense at all.
We in your Lordships’ House, and indeed in the other place, should surely be reluctant to support any form of mediation or arbitration that grants to people who do not have fully informed consent rights any less than they would be able to obtain through the ordinary courts of the land. I make an analogy here with the medical profession. If I go and see a doctor who wishes to advise me that he or she thinks I should have an operation, I wish to be informed about the nature of the operation and the risks that it may bring about. Above all, I wish the doctor to be able to say to me that I do not need the operation at all and that there is alternative non-invasive treatment that may make me feel entirely better too.
In the Sharia tribunals that I have been able to examine through the evidence that has been placed before me, there is no equivalence to what one would expect ordinarily of doctors. Women are not told that they have a right to a much higher level of provision from their husbands after divorce. There are many documented cases where that can be shown. In many instances, women are not told that in the Sharia court they may have a lesser right to custody and residence of their children and that they should go through the civil courts if they want to have their full rights under the law of the land.
It is all too easy to say that these are community issues and that it is very important to reflect the mores of the community. Of course, I agree with that. I was a Member of the other place for a rural Welsh constituency for a number of years. Culture is no less strong in rural Montgomeryshire than it is in some of our inner cities, and we must give full respect to that. However, that respect must not dilute people’s rights. I believe that if one child in this country is taken away from his or her mother because of a religious doctrine and placed with what are essentially strangers, possibly in another country, that is a fundamental flaw in our law and it should not be allowed. That is something that the noble Baroness seeks to address.
I believe that the Bill will require detailed consideration. Earlier, I mentioned the Southall Black Sisters. They and other organisations which have contacted me have expressed the desire for some amendment, and I know that the noble Baroness accepts that as a principle. For example, we might consider whether we should adopt at least some of the provisions of the Ontario Family Statute Law Amendment Act, which, I understand, provides in Ontario for a working model. There, any decision made by a third party in arbitration or other proceedings has no legal effect unless it is exclusively in accordance with the law of Ontario or of another Canadian jurisdiction. That kind of principle can be applied in the United Kingdom, particularly as we have separate jurisdictions, not in Wales but in Scotland and, to a great extent, in Northern Ireland.
I have particular concerns about Muslim arbitration tribunals—MATs, as they are known—which, as I understand it, have been in existence since 2007. Their effect is that dominant interpretations of Sharia law have effectively been given formal recognition within the law of England and Wales, even though they contradict the law of England and Wales. I have a real concern that MATs have strayed into criminal law, particularly in relation to its impact upon women. I, for one, am very reluctant to see determined in a court the proposition that a woman is obliged to have sexual intercourse with her husband on a set number of days in a month, but I have recently seen that proposition seriously set out as one that should be enforceable under Muslim law. It certainly is not any form of law that would be recognised in a rape trial, taking into account the provisions of the Sexual Offences Act 2003.
I am also concerned about the lack of rights of appeal and the lack of detailed reasons being given in writing in such tribunals. I am very concerned, too, about the use of the word “sacred”, or anything like that word, in relation to the judgment of relationships between citizens. For those and many other reasons, on which I could spend a great deal of time if we were not advised to take no more than nine minutes, I support the Bill and look forward to further discussions on it.
Baroness O'Loan
My Lords, I am very pleased to rise today in support of the Bill of the noble Baroness, Lady Cox. I, too, wish to convey to her my congratulations not just on her commitment and determination in bringing this Bill forward but, indeed, on all the work that she does—often in hot, distant and dusty places—for people who live in difficult circumstances.
This is a profoundly important Bill. It seeks to make the necessary amendments to entrench in law a very clear articulation of the restrictions under the rule of law in this country, which must necessarily be understood to be applicable to the processes of Sharia law as they operate in the United Kingdom today.
It is important to say, as previous speakers have done, that this is not in any way a matter of prejudice. However, there is evidence that even before Muslim women enter into marriage some 60% of them experience some degree of coercion before marriage. This Bill seeks to give Muslim women who may be coerced or pressed into allowing a dispute to be settled in the Sharia tribunals the capacity to understand and to be able to assert their rights under the law. Most particularly, it seeks to restrict abuses of the law by communities and individuals which may ensue in the course of the Sharia processes. The noble Baroness, Lady Cox, described graphically the terror that may be suffered by women in these circumstances.
Noble Lords will be very well aware of the history of the legal system of the United Kingdom. We are very proud of the way in which, generally speaking, the principles of law here have developed over the years and of the fact that we have a fine record of at least attempting to protect the rights of individuals—a protection which has grown infinitely since the passing of Magna Carta in 1215. Of course, there are many inadequacies in our legal system and these can result in great injustice and harm. Where we identify serious gaps—and the noble Baroness has identified a very serious gap today—then it is incumbent on us to address them as best we can.
We profess that certain rights are protected under UK law and that those whose rights are abused should have access to the legal system to seek redress. People who have suffered criminal assaults and those who seek relief in matrimonial matters have the right to anticipate that those matters will be dealt with in accordance with the principles of our law. Part 2 of the Bill states very clearly that in any arbitration agreement under the Arbitration Act 1996 the evidence of a woman shall be equal to that of a man. This may well be resisted by some of those involved but it is not acceptable that decisions made under the protection of UK law are based on profoundly discriminatory processes.
The reality today is that many women living in the UK have suffered as a consequence of the way in which these tribunals have been permitted to operate; the extent to which they have claimed jurisdiction which they do not necessarily have in areas such as criminal law and, I think, previously matrimonial law; the fact that they do not operate to provide equality of arms—a matter addressed by the noble Lord, Lord Carlile, a moment ago—in terms of representation, information and so on; and of the way in which their proceedings have been conducted. In addition, there is often a history of violence and duress, to which many women have been subjected over decades, leaving them in a position in which they may become physically incapable of asserting their rights.
It is Muslim women who are articulating these problems. The Iranian and Kurdish Women’s Rights Organisation stated:
“Sharia law discriminates against women and children and puts those who have experienced violence and abuse at further risk. Its rulings are incompatible with UK legislation including the Sex Discrimination Act 1975, the Children Act 1989 and the Human Rights Act 1989”.
In these circumstances, Clause 4 is vital. It is an absolutely clear statement that where the criminal courts have jurisdiction, arbitration is not a possibility, and that discrimination is unlawful. Clause 7 gives necessary teeth to this provision by making it a criminal offence, attracting serious sanctions, falsely to claim legal jurisdiction.
Under UK law, children’s interests are required to be the final determinant in matters affecting them, yet in many cases under Sharia law women are forced to give their husbands access to their children even where British courts have ruled that they should have no such access because it would not be in the interests of the child, perhaps because of a history of violence.
Many women who seek redress through their imam are subject to multiple disadvantages. The English language may form an impenetrable barrier for many. Women who are isolated in non-English speaking communities are completely subject to their husbands, just as English women were a century ago. They will have no access to, and no capacity to seek, justice. If a woman cannot speak the language, cannot get independent advice, is fettered by a loveless and violent marriage, and is caught in a culture which accords precedence in virtually all matters to the husband, life will be profoundly difficult. The psychological consequences of that situation are well known. Such women simply have no idea of their legal rights. They may be cowed and beaten into submission to Sharia law, under which there may be no redress for them and their testimony will not be accorded the same value as that of men. That is a very lonely place for a woman of whatever age to find herself. Many of these women find themselves locked in a violent or polygamous marriage when they had thought that they were entering a monogamous union registered under UK law, yet the only place they can go to seek advice is the imam.
The Bill of the noble Baroness, Lady Cox, seeks to address a very serious wrong. It will have wonderful effects. I accept that it may require some amendment, but it will outlaw once and for all the Sharia practice of giving women’s testimony half the weight of men’s; it will make clear the redress that women can seek under civil law; it will make discriminatory the assumption in Sharia law of unequal distribution of an estate between male and female children; it will make discriminatory the assumption that a woman has fewer property rights than a man and vice versa; it will give women who have sought refuge in the United Kingdom a clear articulation of the limits of the Sharia tribunals; and it will mean that any future unlawful assumption of jurisdiction can result in prosecution.
The Bill has the support of many lawyers and organisations working to help Muslim women in these difficult situations. The noble Baroness listed a number of them, so I will not do so again. I simply reiterate my support for the Bill.
The Lord Bishop of Manchester
My Lords, I echo the warm words of congratulation and appreciation for the characteristically heartfelt and informed speech of the noble Baroness, Lady Cox.
In February 2008, many column acres in the national media were given over to my friend and colleague, the most reverend Primate the Archbishop of Canterbury, and to his supposed views on Sharia law. I say “supposed” because a large amount of the media response to his scholarly and considered lecture on Islam and British law bore no relation to the substance of his arguments. What the episode highlighted very effectively is that for the vast majority of people, this is both a highly emotive and little understood area of our legal landscape. I claim no special expertise, so rather than test your Lordships’ patience, I will quote from the most reverend Primate’s 2008 lecture because his words have some relevance to the issues before us today.
The Archbishop said that the,
“recognition of ‘supplementary jurisdiction’ in some areas, especially family law, could have the effect of reinforcing in minority communities some of the most repressive or retrograde elements in them, with particularly serious consequences for the role and liberties of women”.
He went on to say that no supplementary jurisdiction, or minority legal order, should have,
“the power to deny access to the rights granted to other citizens or to punish its members for claiming those rights”.
I think few would wish to argue with what the most reverend Primate said, although many may regret that he was not quoted sufficiently and properly in the media.
The Bill introduced by the noble Baroness, Lady Cox, seeks to frame a legislative response to such anxieties. It may not have got it right in all regards—I will come to my contribution on that shortly—but the noble Baroness has provided us with a welcome opportunity to begin to grapple with some genuine and pressing questions of principle and legal practice in this area, such as the proposal to make it unlawful for an arbitration agreement to include provision that treated parties differently on the basis of their sex, the value of their evidence, rights in the division of estates and their property rights generally.
The functioning of religious courts in the United Kingdom requires greater discussion and research, taking particular account of women’s organisations such as Women Living Under Muslim Laws. The briefing produced for this debate by the British Academy’s policy centre reminds us that:
“There are substantial gaps in our understanding of how minority legal orders are being adapted, interpreted and applied, and we know very little about the experience of their users. There is need for research on the interrelationship between these orders and the state legal system. This argues for extreme caution in proposing legislation that can significantly impact on any of these orders”.
With the need to consider caution foremost, I offer four questions to ponder. First, do the problems that the Bill is designed to address require fresh legislation or is sufficient redress already available under existing discrimination law and the Equality Act for those who are undoubtedly poorly served by the arbitration process? Is it not already the case that the High Court will not enforce an arbitration award that has been obtained unfairly and where coercion, tacit or explicit, is involved?
Secondly, what will be the impact of the creation in Part 5 of the new criminal offence committed by arbitrators purporting to exercise a judicial function in family matters on the work of family law arbitration schemes, such as that recently set up by the Institute of Family Law Arbitrators, to which the noble Baroness referred?
Thirdly, again in that part of the Bill, is there sufficient evidence to show that, for those Sharia councils that may be claiming false jurisdiction on criminal and family cases, making such conduct a specific criminal offence is the best way of preventing it from happening? Most religious courts are not arbitration courts so the majority of practices in these courts would be unaffected by the Bill. It is true that most Sharia councils in the United Kingdom do not claim to be civil or state courts but mainly function to unbind non-legally recognised religious marriages. Claiming secular authority would contradict their nature, which is to apply religious not secular law. The real problem may not be so much false claims to civil legality but a lack of awareness of and engagement with civil legality, which itself is a symptom of a wider religious alienation from state and civil society.
Fourthly, is the trend towards non-legally recognised marriages likely to be stemmed through legislation, and specifically through the measures included in the Bill? That is a problematic area requiring attention. The few academic studies that have been carried out indicate that the majority of issues in religious courts are in relation to divorce. My concern is that the legislative solution proposed in the Bill, with its implied emphasis on Muslims and Sharia, could have the opposite, and doubtless unintended, effect of stigmatising those individuals in communities it is aiming to help. Dr Aisha Gill of Roehampton University published a paper in 2007 discussing this issue in relation to the Forced Marriage (Civil Protection) Act. She argued that it may be better all round to channel resources into education and prevention rather than to develop targeted legislation.
Reference has already been made to other religions. In my capacity as the chairman of the Council of Christians and Jews, I would like to register a concern about what I again take to be the unintended side effects of some of the Bill’s proposals. I refer especially to the Beth Din, the Jewish religious courts. One such effect is that under the Bill any Jewish couple who may seek guidance from a Beth Din about their rights and obligations relating to property or children on the break-up of a marriage will have to be turned away if those adjudicating are not to break the law. For those Orthodox Jews who wish to follow ancient Jewish law and bequeath their estate to their sons while conferring substantial dowries on their daughters, if a man died intestate his children would not be able to seek an adjudication of the Beth Din as to the disposition of the estate.
I do not for a moment doubt the sincerity of the noble Baroness, Lady Cox, in her wish not to inhibit religious freedoms through this Bill. The point has already been made in this debate that she is a well-known and respected campaigner for the cause of religious liberty at home and abroad. She is much respected, not least by the Bishops’ Bench. However, as currently drafted, the Bill appears to present anomalies which could create problems for those who are well aware of their rights, are independently advised and want to approach their faith tribunals for adjudication in a matter which they believe to be covered by the rules of their faith.
Lord Singh of Wimbledon
My Lords, it is a pleasure to follow the right reverend Prelate the Bishop of Manchester. I also sincerely thank the noble Baroness, Lady Cox, for her initiative and hard work in bringing this important Bill before the House. I applaud her courage in addressing an issue on which most people find it expedient to remain silent out of fear of being seen as attacking the important freedom of religion. I speak from the perspective of the Sikh religion. In a recent BBC interview with J K Rowling about her new book, The Casual Vacancy, which looks at the life and fortunes of a Sikh family, she acknowledged her admiration for the Sikh faith. From its very beginning it gave Sikh women equal rights in all aspects of life. Unfortunately, Sikhs do not always live up to the high ideals taught by Guru Nanak and his successors. The main reason is a male-dominated sub-continent culture which is shared in many other parts of the world. Understanding this negative culture is central to understanding the importance of this Bill.
Aneurin Bevan, the founder of the health service, may have been a little over the top when he famously said that whenever he heard the word “culture” he immediately thought of bacteria. He was talking about nasty practices being justified on the grounds of culture. He had a point. We all know that as well as the nasty sort of bacteria that can cause disease and infection, there are also good bacteria that help to keep us healthy. It is the same with culture. In its respect for family life and emphasis on responsible living, it benefits us all, but there is also a negative culture that supports, legitimises and perpetuates evils such as male domination and discrimination against women. The problem for all our different faiths is that unthinking and discriminatory cultural attitudes attach themselves to religious beliefs and distort them beyond recognition. This sometimes makes it difficult for followers of our different faiths to distinguish between uplifting ethical teachings and dubious social practices based on the prejudices of the day. It is this negative culture, particularly in regard to women, that Guru Nanak both exposed and opposed.
Unfortunately negative culture, which over the centuries has given power and privilege to some at the expense of others, is extremely difficult to eradicate. Today on the Indian sub-continent and in many other parts of the world, the treatment of women often varies between discriminatory and barbaric. This is particularly true of the Muslim world where, as we have seen in the Arab Spring, long-oppressed communities are bravely trying to find and assert a forward-looking identity, looking to enlightened attitudes towards women and respect for other communities. Unfortunately, a powerful and strident minority has a totally different agenda of contempt for other communities and a total rejection of enlightened social norms. It was this desire to return to a muscular, male-dominated past that led to the recent shooting in the head of a 14 year-old girl in Pakistan simply because she asked for education for girls. Such barbaric behaviour is light years away from the teachings of the Koran on the need for compassion and concern for the oppressed. This same point was made yesterday by the noble Baroness, Lady Warsi, on BBC television when talking about the same subject. This Bill seeks to support those trying to carry the Koranic imperative of compassion into 21st century behaviour and practices.
I have many Muslim friends and, as a founder member of the Inter Faith Network for the United Kingdom, I have regular contact with people at all levels of Muslim society. They are both ashamed and stunned by extremist and bully boy behaviour. There is also growing disquiet in both religious and secular society about an apparent widespread conspiracy of silence in addressing such issues out of fear of offending cultural sensitivities, but silence simply encourages the bully boys and perpetuates injustice. As Edmund Burke reminded us, evil triumphs when good men do nothing. We need to remember that when Islam was founded, its teachings were far more enlightened than those of the surrounding cultures. Sharia law was developed to translate Islamic teachings into detailed guidance for everyday living. But society is always changing and what was acceptable hundreds of years ago, or even 20 or 30 years ago, may be considered oppressive today. As James Russell Lowell, the poet and social reformer, reminds us in a hymn:
“New occasions teach new duties; Time makes ancient good uncouth;
They must upward still, and onward, who would keep abreast of Truth”.
Arbitration and mediation in resolving differences in religious communities is fine if carried out on the basis of equality between all parties. Today, laws, codes or social practices that seek to perpetuate discrimination against women in any society are no longer acceptable. It is for these reasons that I welcome and give my full support, and that of my community, to this Bill. I am confident that it will have the support of many people of all faiths, those in secular society and, I hope, from all political parties in a common quest for a fairer and more cohesive society.
Lord Cormack
My Lords, it is a great pleasure to follow the noble Lord, Lord Singh, in his thought for the day. I would just ask him to take comfort that Sikhs are not the only people who fail always to live up to their religious ideals. Christians are quite good at that too. I join the universal thanks and tributes to the noble Baroness, Lady Cox. She really has been a lodestar for so many people for such a long time that we are all, directly or indirectly, in her debt. She goes where many of us ought to go and she does what many of us ought to do, and in introducing this Bill today she has performed another signal service for which we are all very grateful.
I do not like to see the law of my country sidestepped, overridden, ignored or, even worse, subverted, and I am therefore extremely grateful, as I am sure we all are, for the initiative taken by the noble Baroness, but the Bill is not enough. She has been extremely generous in what she has said about her willingness to listen to amendments. She has been very generous in recognising that any Private Member’s Bill is an imperfect vehicle for change. I give the Bill my support. I hope that it proceeds and is amended in Committee, and I would like to see it on the statute book, but I repeat: the Bill is not enough, because what we have got to seek to do in this country is to ensure that the rule of law, which means the protection of the law, is available for everyone. The Bill, whenever enacted, is not going to reach out into every community. I am just sorry that not one of our Muslim Peers is taking part in this debate today— I am sure that there are excellent reasons for that—because we have some very fine men and women of the Muslim faith who could have further enlightened our deliberations.
Yesterday, we had a very interesting debate on education. We were all constrained in the time we had to speak, but one point that I made, I should like, if the right reverend Prelate will forgive me, to repeat in part. A number of Peers in this House, from all parties and the Cross Benches, have been meeting in recent months to discuss citizenship and our young people. We are very anxious to reach the stage where every young person leaving school in this country has had a proper course in citizenship and goes through a citizenship ceremony and receives a certificate. What is the connection with the issue before us today? Well, it is a very simple one: it is only in that way that you can get across to every young man and woman in this country just what the rule of law is, what it means and what it means for them individually and collectively. Among the reading matter for such a course, I would certainly include Lord Bingham’s magisterial short volume, The Rule of Law, a fine distillation of the wisdom of a great mind.
It is very important that all the young people in our schools, who have such diverse ethnic and religious backgrounds, realise that we are all subject to the same law and that we all have the same obligations, responsibilities, rights and protection. It is only by getting that across to every young person coming out of school that we will achieve what the noble Baroness is seeking to achieve with this Bill.
We have a golden opportunity for this. The noble Baroness, Lady O’Loan, made a very brief, passing reference to Magna Carta. On 15 June 2015, we will be commemorating what these chaps up there, the statues of the Barons of Runnymede, achieved in 1215. Magna Carta is not, as somebody said recently, the end of the divine right of kings and the beginnings of democracy. It is the bedrock of our liberties and every one of us owes something to it, as does every citizen in every free democracy in the world. If we made it a target date and said that, in 2015, we would like every school leaver to leave school with a certificate of citizenship showing an understanding of their responsibilities to their community and their own rights and protection under the law, we would have achieved a very great deal. In a sense, we would have re-enacted a Magna Carta for the 21st century, and even the Prime Minister would know what that meant. I commend this to your Lordships in all parts of the House as a way of ensuring that the noble ideals of the noble Baroness come to fruition.
We have always prided ourselves in this country, and in this Parliament in particular, on the rule of law and the fact that we are the custodians of it. One only has to think of Palmerston in another place—he was an Irish Peer so did not sit here—and that extraordinary Don Pacifico incident. To protect one harassed shopkeeper, he invoked those immortal words, “Civis Romanus sum”, “I am a citizen of Rome”, thinking back to St Paul who used that in his day—not that St Paul was entirely good and sound on the women issue. In a very dramatic and graphic way, Palmerston was saying that everyone who was subject to the sovereignty of the Queen—in that case, Queen Victoria—was deserving of the protection of the law. That is a bold claim for us to make but, in our multilingual, multiethnic and multifaith society, we must see that in the 21st century all people have the protection of the law.
I have had the good fortune to attend a couple of the briefings that the noble Baroness, Lady Cox, organised for those with an interest in the Bill. Until I got her first letter, I had not really given it much thought, but I came along and listened. Some of your Lordships here this afternoon were there last week when we heard the testimony of two brave young Muslim women who had been the victims—that is the only word one can advisedly use—of the injustice of Sharia law. The noble Baroness referred to others in her speech. I defy anyone to have listened to those testimonies and then come out of that meeting unmoved and undetermined. We are only as good as the way in which we treat the least of our citizens. Far too many in this country, through ignorance among other things, do not get the benefit of the protection of our laws. If we make a small step in the direction of remedying that deficiency by passing this Bill, we will have performed a real service.
Baroness Turner of Camden
My Lords, I support the Bill and at the same time express my appreciation for the work of the noble Baroness, Lady Cox. She has undertaken a great deal of research in support of the Bill. I have learnt a great deal from her and am grateful for it. I want to emphasise, as many others have done, that the Bill is not an attack on religious faith. I am a secularist but I believe strongly that everyone has a right to religion or faith, and to practise it without discrimination if they wish. I am concerned only if attempts are made to impose practices on those who do not share religion by citing religious or cultural reasons.
The Bill seeks to protect vulnerable people, mostly women, who may find themselves in a situation in which UK law would protect them but who nevertheless are not aware of the legal situation which provides such assistance or are prevented from accessing such a system because of community pressure. We have seen the development in this country of so-called Sharia courts that seek to give advice and judgments which often discriminate against women. They do so in areas where there is quite specific UK law in family and criminal matters.
That is particularly the case regarding divorce, where the woman may not be aware of her rights under UK law and may seek a decision from a Sharia court. She may encounter very much difficulty in that, as is covered in much of the research undertaken by the noble Baroness, Lady Cox. The so-called court may first try mediation, even in cases where there has been domestic violence against the woman. It may claim that the decision of the court requires the consent of the husband. Moreover, the woman’s evidence is worth less than that of a man. A woman who has been widowed may not remarry without the permission of a male relative. There may well be financial problems. A woman may not inherit on the same level as a man. There may be problems about children. Children over the age of seven automatically pass into the care of a man following a divorce decision by a Sharia court. Furthermore, polygamy is culturally acceptable.
Occasionally, the suggestion is made that there should be a parallel system of law to assist minority communities, and particular reference is made to so-called Sharia courts. When one looks at the cultural differences involved and the protection available to women via UK law, in my view, that is clearly unacceptable. There must be one law for all.
The previous century saw substantial improvements in women’s rights in the UK. Generations of women fought for those rights: the right to vote, to participate in public life, to equal pay, access to the professions and higher education, laws relating to the family and divorce and, of course, our current equality law. We will not have these advances undermined by the establishment of some form of parallel law at a much lower level. That is what so-called Sharia law envisages.
The Bill is intended to make it easier for women to bring claims for discrimination to the county court, and provides a positive obligation on public authorities to ensure that women in the situations to which our research draws attention know what are their rights and how to get them enforced. Social or religious pressure may often be imposed to prevent them accessing the UK justice system. That may be a problem, but there are already provisions in law relating to witness intimidation. The Bill is intended to cover those where a witness is assisting the police and is a victim of domestic violence. That sometimes happens. That should be included so that protection in such cases becomes a priority.
Clause 7 would make it an offence for people to assume judicial authority that they do not have. That would apply to community councils or groups of elders claiming to have legally enforceable powers and thus able to issue decisions of a discriminatory nature in defiance of the law.
Of course, all that is quite complicated, and many women who opt for a religious marriage do not realise that there will then not be protection under UK law unless they have a UK-registered marriage. The Bill is an attempt to deal with that by ensuring that there is a public duty to ensure that women are fully advised of their rights under UK law. We cannot continue to accept a situation in which women are suffering from forms of discrimination which we believed had been outlawed many years ago.
During discussion on the Bill, we have had the opportunity to meet women who have suffered from discrimination of the kind that the Bill is intended to eradicate. Many have had to cope with social and community problems and, often, domestic violence. They have often felt very alone. Fortunately, there are organisations that have been able to help such women. One such organisation is Southall Black Sisters, the organisation to which the noble Lord, Lord Carlile, has already referred. It supports women caught up in domestic or community pressure. It supports the Bill, although it thinks that it does not go far enough. It is concerned about the increasing pressure being exerted by many religious organisations which seek to intervene in family matters. It would like amendments to be introduced to the Arbitration Act 1996 so as not to allow any religious laws to be used in family matters. It also thinks that anyone seeking to arbitrate on family matters and using religious laws should be deemed to be committing a criminal offence, punishable with a fine or imprisonment. I have some sympathy with its point of view but have said that the Bill as it stands represents a very substantial step forward. There will be an opportunity in Committee or on Report for some of these views to be discussed.
During the discussion this afternoon I have received a message saying that the noble Baroness, Lady Flather, who had intended and very much wanted to participate in the debate, is unfortunately ill and unable to be here. I know that she would want me to say that she fully supports the Bill, which is in line with the campaign that she has been engaged upon all her life in support of vulnerable women, particularly those who are often not of a European background. She heartily hopes, as I, too, hope, that there will be support for the Bill from the House.
Lord Williamson of Horton
My Lords, this Bill is intended to deal with a number of problems and injustices which have arisen at the interface between actions, whether formal or informal, by Sharia bodies and the application of UK law. The Bill is particularly important for the protection of women; it would be morally indefensible to turn a blind eye to this.
The first point which the Bill deals with is arbitration proceedings that operate according to Sharia and discrimination against women. The Bill does this in Clause 1(2) by making it clear that sex discrimination law applies to arbitration tribunal proceedings. This is to close a possible loophole in the Equality Act 2010 so that tribunals which operate legitimately under the Arbitration Act 1996 cannot use discriminatory Sharia rules, such as a woman’s testimony being worth half that of a man. It would be sad indeed if, having spent centuries in the United Kingdom on action to eliminate discrimination against women, we were to allow it to be re-established because we did not have the courage to speak out.
Secondly, Clause 1(4) sets out to make better information available to women in polygamous households and women who have had a religious marriage but may not be aware that it is not recognised under UK civil law. It has been estimated—although the reliability of these estimates is pretty difficult to assess—that about two-thirds of Muslim marriage ceremonies in Britain are not registered under the Marriage Act.
Thirdly, the Bill strengthens a court’s powers to set aside rulings where discrimination has taken place, thus making it possible for a decision of an arbitration tribunal to be struck down. Clause 4 is an important clause, expressly stating in the proposed legislation the present position that arbitration cannot deal with family or criminal law matters. This is a restatement of the current defence against a parallel legal jurisdiction in this country, described in the British Academy report as a minority jurisdiction.
Clauses 5 and 6 deal with intimidation. Thirteen cases of intimidation are quoted in our briefing and are said to be the tip of the iceberg. More specifically, Clause 5 strengthens court powers to set aside court orders where there is evidence that consent to the agreement was obtained under duress including, importantly, the possibility for third parties other than the women affected to apply for the court order to be struck down. Clause 6 makes clear that a victim of domestic abuse is a witness to an offence and should be expressly protected from intimidation.
The Bill creates a new criminal offence for a person who purports to legally adjudicate on matters that ought to be decided by Crown, criminal or family courts. This is designed to prevent the creeping loss of our legislative system, to the detriment of the rule of law in the United Kingdom.
In conclusion, the Bill is a step towards the respect of equality for all under a single law of the land. For society as a whole, this is a very important point. In addition, and perhaps for me personally even more importantly, it may lead to some progress in reducing pressure, intimidation and discrimination against women, which should not be tolerated in Britain today. I thank my courageous colleague, the noble Baroness, Lady Cox, for bringing the Bill forward.
Lord Kalms
My Lords, the substance of the Bill is straightforward, and it should be acceptable to all Members of this House. It is this: that the law of the land is, and must remain, paramount; no law should ever override or sit above the law of this land; and, while amendments can and will be made to our laws, the fundamental bedrock principles on which our legal system is based not only cannot but must not be open for negotiation. Among our absolutely non-negotiable principles must be the principle of equality before the law. This hard-fought-for concept of one law for all remains among the greatest achievements not only of our country but of humankind. Any court not abiding 100% by the law of the land has no more status than a kangaroo court.
Before addressing the specific legal system that poses most threat to these principles, I shall first address a misleading counterexample that is often thrown up and will doubtless emerge from this debate. As a consequence of the Arbitration Act 1996, all sorts of individuals, authorities and quasi-authorities can provide, or hold themselves up as providing, a form of legal arbitration in the UK. This includes secular, non-religious organisations as well as religious organisations. Among the latter are the Jewish courts, or Beth Din, which arbitrate between Jews who volunteer themselves up to arbitration and its auspices. However, not only are the rules of the Beth Din complementary to UK law but they are, and of course must always remain, wholly subservient to it. It is not possible, for instance, for a Jewish court to adjudicate any arbitration case in such a fashion that the judgment runs contrary to the law of the land. In addition, the Beth Din are highly regulated by central regulating bodies.
This brings me to the case of Sharia courts. It was the Labour MP Sadiq Khan who said four years ago that Sharia was utterly unsuitable for the UK because, among other reasons, there was a lack of sophistication or regulatory power in the Muslim communities of Britain. It is no insult to Muslims to remark that, unlike the Jewish community, Muslim authority in the UK, as worldwide, is highly diffuse and lacks any centralising authority. Additionally, we have already seen that Sharia courts in the UK not only seek to tread outside the remit of the Arbitration Act but already do so. For instance, the Muslim Arbitration Tribunal says by its own admission that most of its work falls outside the remit of the Arbitration Act, and is instead work that treads right into the realm of family law.
On the substance, there are two primary reasons why Sharia law provides a new type of challenge to the law of the land and why the noble Baroness, Lady Cox, is right to bring this matter to our attention. The first is the issue of competing legal frameworks. To say that there might in future be cases in which Sharia courts overstretch their remit is to be grossly unaware of the present. There are already a large number of such cases which are publicly known, widely reported and the source of significant public concern. Self-described Sharia courts have, on a number of occasions, already reached beyond what might be acceptable in a case of arbitration and over into cases which include the criminal. To my knowledge, none of these cases has ever received police attention or investigation, and this is a scandal for which the police, among other authorities, must be held responsible.
Secondly, there is the clear issue of the contravention of a fundamental of our law. Foremost among the fundamentals being violated is the principle of equality of the sexes. This House must of course be careful to ensure that religious liberty is protected, but religious liberty and legal liberty are different things. Where religious liberty runs in direct contravention of the law of the land, the religious demand must be put into its correct place. It should be totally unacceptable to this House that a situation should exist in Britain in which women are routinely awarded second-class status to men. The principle by which, for instance, the testimony of women is regarded as being worth half that of a man is, sadly, a principle with a long, historical basis in Islamic law, and is practised in jurisdictions around the world in which Sharia law is implemented.
Even in the case of arbitration, that appears to me to be totally unacceptable. How can this House permit a situation to arise—or be permitted, let alone encouraged—in which a woman is given a second-class status? How can this country in any way hold its head up as a standard-bearer of human rights and genuine equality, so long as some women in our country are born to the same rights as men, and others born in the same country are not?
Doubtless, there will be Members of this House who protest that women who choose to submit themselves to decisions made by a Sharia court for arbitration must have their wishes respected, even if those wishes do lead, as they must, to their second-class status. This demands two points in response. First, there is the issue of whether this House and this country have any confidence in their own values. If we do not have that confidence, then we should say so, but we should know that it will lead to a situation in which people in this country can break the law, ignore any concept of jurisdiction and place themselves in a legal community apart from all other people in this country. That appears to be the basis not for national cohesion but for national breakdown.
The second issue, which cannot be stressed enough, is raised by the concept of “voluntary”. It is extremely easy for Members of this House to presume what those outside this place do is “voluntary” or otherwise. But around this country, as numerous experts in this field can attest, the question of what is and is not “voluntary” is highly contestable. We may, for instance, say in this place that no woman should submit to a ruling by a Sharia court unless she has volunteered to do so. But how on earth are people here to know whether such acts are voluntary? What protection does the state provide when the police and social services, where they are not drawn from the same community as the girl in question, are too timid or fearful of anything which runs counter to the community’s professed traditions or beliefs? There are many accounts of women who have found themselves trapped in precisely those situations. Whole groups and organisations have begun to be set up to support such women. The noble Baroness, Lady Cox, has brought some women from such organisations to speak to Members of this House, as we heard the other day.
Many of these areas are distinctly cut-off, ethnic and religious enclaves. How do people in this House suppose that a young girl born in such a town, and brought up to defer to religious leaders should behave when those same religious leaders hold themselves out also as legal authorities, when such authorities are in a position not merely to give religious advice but to lay down legal judgments? There is now substantial evidence that far from volunteering themselves up to judgment by Sharia courts, many women in Britain at this time are in fact forced to do so.
Today this House has an opportunity to make a stand and draw a firm line. It should be this: that no British citizen should ever sit before a court or judge whose basic principles are in opposition to the most cherished principles of this country and its law. Whether we have the confidence to draw this line clearly will not only affect the issue of integration in this country, it will send out a signal about the kind of country we and our children would wish to live in.
Lord Swinfen
My Lords, I congratulate the noble Baroness, Lady Cox, on bringing this Bill forward. Members of this House of many religions have spoken today and, like my noble friend Lord Cormack, I am sorry that so far we have not heard any representatives from the Muslim faith, which I think would have been very useful.
It is well over 50 years since I was at school and most of the history that I learnt I have probably forgotten. However, I can remember being taught that in the Middle Ages we had the Royal Courts of Justice, but that those who worked for the church as clergy, or just worked for or were connected with it, were judged by ecclesiastical courts. The punishments and decisions of the two systems of justice were not always the same. I am glad to say that we got rid of that because everyone should be treated the same and fairly under the law. Unfortunately, another form of religious court appears to be coming into being. In due course, it could produce division through the peoples of this country, which we wish to avoid. We must have equality and fairness for all under the law.
In the briefings that I have read on this subject, I understand that many Muslim marriages are invalid under British law and that very few mosques have a licence to perform marriages. The vast majority of Christian churches are licensed to perform marriages and to register those marriages under the law of the land. In the Minister’s reply, I should like to know what is being done to encourage and ensure that mosques, Hindu temples and other religious establishments in this country are licensed to perform marriages so that all people are properly protected, particularly the wives and children of those marriages. In the eyes of God, I am sure that the marriage is the same whether it has the right piece of paper or not, but it helps in this world to have the right piece of paper to produce at the right time.
What is being taught in schools on the operation of the law with regard to fairness under the law, mediation and arbitration? We have heard from others that the results are not always the same. The rulings of Sharia courts, Jewish courts, Hindu courts or Sikh courts should be confirmed by a judge in the Royal Courts of Justice, probably in chambers, to see that they are compliant with the law of the land and that the rulings are being fair to all, no matter what their religion and what part of the country they come from. I support this Bill.
Baroness Deech
My Lords, I very much welcome this Bill and appreciate all the hard work and research that has gone into it. I join others in applauding the bravery of the noble Baroness, Lady Cox, whose record in speaking up for human rights and the oppressed is magnificent. While we are adjusting to multiculturalism—I think that in the future I will have to think of it as multibacterialism—in this country, there are some ground rules, some lines that cannot be crossed, no matter how compelling the religious practices at issue. Thus, the equality law of this country has caused, for example, Catholic adoption agencies to close because human rights trump religious beliefs in matters of equality. Very recently, the same test was applied to whether two men could share a room in a bed and breakfast rented out by a couple with religious objections.
The Bill has to face up to the difficult issue of drawing a line between good helpful mediation and arbitration on the one side and, on the other, the processes and principles that are contrary to equality law. Religious bodies certainly should not claim to deal with criminal offences or claim exclusive jurisdiction over civil issues, but much turns on the power and knowledge of those who appear in the courts, and we have to assume vulnerability in many, if not most, instances. Mediation can help in family law disputes provided that the parties meet on equal terms. Arbitration, however, may perpetuate irregularity of status that goes down the generations to the disadvantage of children if it is presented as the legal solution to a situation that needs finality in civil law.
In this Bill, the fundamental principles of British equality and respect for the rule of law, which imply one law for all, are fleshed out and serve as the parameters. Religious courts of all persuasions have to be subservient to the family law of this country. Yes, agreements can be reached and acted on with consent or presented to the court for enforcement, but we cannot allow shadow, and possibly unfair, family law and marriage law to go on sub rosa, to the detriment, in particular, of women and children. Their status, their dignity and their support have to be open under the law. They must have access to our courts, without being blocked, to enforce their family law rights. Each person in this situation needs to have knowledge about their situation and their rights in our common law in a language that they can understand. They must not be coerced into religious law, any more than any citizen should ever be coerced. In our law, duress vitiates contracts and marriages whoever you are.
Members of any religious community must not be left with the impression that they are outside the law of the land. For example, it is suspected that many marriages are entered into which are valid only under religious law and not under civil law. That must be wrong. There needs to be an effort to ensure that all religious marriages are properly celebrated under English law and polygamy is stamped out. There is no reason why all, or more, mosques should not register for legal civil ceremonies.
The law is encouraging private agreements in family disputes through prenuptial agreements and in relation to children’s residence and money. This is partly in order to save legal aid and partly in the interests of harmony. However, these agreements are made in the shadow of English law and can always be taken to court. There may be loopholes in the drafting of this Bill, but I understand that it is intended to try to assist with the fall-out effects of unrecognised marriages. I am sure wording can be found to ensure that that is the case.
The Bill has the support of a group mentioned earlier by the noble Lord, Lord Carlile, Southall Black Sisters, a black and minority women’s organisation that has existed since 1979 and has a national reach. Indeed, it thinks that it does not go far enough. It points out that cuts in legal aid will have the effect of causing more women and vulnerable people to use religious courts, which are, by and large, cheaper, and that these people will not be able to afford civil legal advice. This is another adverse effect of the drastic cuts in legal aid that have come about in recent years. This risks the growth of a second-rate justice system for minority communities, one which is not compatible with universal human rights principles. Southall Black Sisters is well aware of how women may be coerced into going before religious bodies and accepting decisions that are not in their interests within a system that lacks transparency and accountability and offends against the rule of law.
This Bill is important and will be welcomed by thousands who know about it and by many more who may be unaware of it but could benefit. I urge the House to progress with it.
Lord Elton
My Lords, I join my noble friends and others who have congratulated my friend, the noble Baroness, Lady Cox, not just on this Bill but her general work. My noble friend Lord Cormack referred to her as a “lode star”. Having seen a good deal more of her work than perhaps he has, I would say that she is more like Halley’s Comet during her visits here. This is a rare occasion when she focuses on the troubles in our little patch. She is active on all five continents and is often in considerable physical danger. However, this is not a party called to celebrate her gallantry and generosity. I will therefore move swiftly on to the substance of the Bill that she brings before us.
The general principle in the Bill is pretty clear, and it is a principle that is subscribed to by all your Lordships: if we are to have two strata of law—a national and universal law, and some sort of minority laws within it—it is absolutely essential that the minority laws shall be in conformity with the national law. That is simple and it is a secular, not a religious, statement. I am glad that the noble Lord, Lord Carlile, is here specifically as a secular being and is pronouncing on this so that those of us who are known to be of particular faiths can look to him to validate what we say as regards the logic and history of law.
It seems pretty simple to adumbrate that general statement that there must be conformity between the minor and the major systems of law, but it is not quite as straightforward as that. This debate and the Bill have focused attention on the particular faith of the Muslims and a particular form of practice in the Muslim faith with regard to the implementation of religious laws. It is not just sad but a desperate pity that there is no Muslim voice in this debate. I, for one, long to have some illumination as to what the regard for Sharia is among the different groupings of the Muslim faith, and what sort of material and emotions we are dealing with as we discuss it. My friend the right reverend Prelate said that we have to go carefully in this, and he is right. At the bottom of all this is a religious faith.
My noble friend has emphasised, as have others, that it is actually ignorance that is the great weakener of the female sex in these situations because they are not aware of the rights that they might otherwise have. However, it is not ignorance that takes all of them into those courts or leads all of them to be governed by their decisions; it is the faith of the participants that does so. As long as women believe that it is natural justice that they should be treated as they are under Sharia law, they will not seek to liberate themselves from it and, regardless of what the civil courts may say, they will abide by it.
The question of education is of prime importance. I admired my noble friend’s diatribe in favour of citizenship, and I rather think that I shall join his ranks. I think that Runnymede was actually a conference of barons securing their rights, which have filtered down more widely to us now, but that is a small point of history. I must not be drawn astray in the short time we have left.
The Bill has to be studied in detail in Committee. I support the right reverend Prelate in saying that of course it is bad legislative practice, and unnecessary, to put into law something that is there already. I strongly suspect that a good deal of this is there already, but the difficulty is that it is spread out in different pieces of legislation and amendments to them, and is not known about. This relates to education again—not of the people who go to the courts but of the courts themselves. I wonder if there is any requirement for people who sit on these bodies to be qualified in any way that is recognised by the British legal system. It would be a very good thing if they were, so that they are aware of the detail of the civil law with which they must conform. At some point there will be a conflict—and we should not be shy of that fact—between those who believe passionately that Sharia law is the be-all and end-all of their faith and those who do not. However, we do not know, because of the absentees from this debate, what proportion of the population of this country who subscribe to the Muslim faith fall into either group. We have to go cautiously, but if we are to have justice for our citizens, which is what they now are—brothers and sisters, as we would say—they must be protected in some way.
My noble friend has taken a bold step. In Committee, we shall be able to discover how much further, in what direction and how much more cautiously we have to proceed. I thank her for what she has done.
Baroness Uddin
My Lords, I thank the noble Baroness, Lady Garden, for enabling me to stand in the gap and say a few words. I apologise to the House that, having overlooked today’s business, I am not much more prepared. I, too, thank and commend the noble Baroness, Lady Cox, and her international work, in particular in respect of the protection of minority rights and minority Christian rights abroad. She is venturing into a new arena and I commend her work.
Many of the concerns expressed about religious courts in the Muslim traditions are valid. However, such concerns could also be expressed about religious courts in other traditions. As has already been mentioned, it would be much more appropriate for reforms to be undertaken by the Government. It is wrong that this should be flying under the flag of religious persons, or certain groups and their interests. Despite the number of protestations today that this is not rooted in hostility to any one religion, the perception outside this House is that this is another assault on Muslims. The way forward, therefore, is for the Government to look at this, in partnership with the communities affected and in particular with women’s organisations such as Southall Black Sisters and people such as Dr Aisha Gill, whose work I commend to noble Lords.
I also agree that no laws should supersede the laws of the land where citizens reside. Coercion into religious law is unacceptable, especially for women as vulnerable as they are when facing such critical conditions as divorces, separation or violence against them. The evidence about violence against women leads us directly to gender injustices and inequality. As has also been said, by the noble Baroness, Lady O’Loan, lack of adequate information and language barriers may indeed be culpable when it comes to why Muslim women in particular are not seeking mainstream legal protection; as must be the lack of funding for many of the well established organisations that have been working in this field and struggling to survive on their own.
The noble Lord, Lord Cormack, eloquently described the need for more than just enacting this law. Education and citizenship are absolutely imperative in achieving informed citizens and equal rights for women. I submit myself to his ongoing work in this area.
Finally, I humbly echo the thoughtful contribution of the right reverend Prelate the Bishop of Manchester and urge caution in our deliberations. We must not journey along a path that further marginalises those who seek our protection.
Baroness Thornton
My Lords, I thank my noble friend Lady Uddin for her remarks and, indeed, I echo her final comments to the House.
I congratulate the noble Baroness, Lady Cox, on successfully introducing her Bill. I also thank her most sincerely for sending me the excellent briefing that she prepared on why she felt moved to bring forward this Private Member’s Bill.
There is no doubt, as this debate reveals, that there is very serious disquiet about the fate of some women who are subject to some religious laws—particularly Muslim women under Sharia law, although, as the noble Lord, Lord Kalms, pointed out, it is not limited to the mediation and arbitration services of the Sharia law councils. We cannot ignore those concerns. What contribution this Bill will make to remedy that discrimination is the question before us today, and the right reverend Prelate posed four excellent questions.
We on these Benches are proud of our record both in government and in opposition in championing women’s equality and fighting hard against discrimination wherever it is found. Indeed, almost all the legislation that seeks to protect women, dealing with discrimination and violence against women, has been introduced by Labour Governments. We massively increased the resources available to tackle violence against women; we recast the legislative framework; and we increased sentences for offenders. An irony here is that, because of the forthcoming reductions in legal aid, women who seek redress on domestic violence grounds will find that even more difficult, and we know that, because of the austerity agenda, things such as refuges will not be as widely available as they were.
It is not surprising that we would be very concerned if the Equality Act, which I helped to steer through your Lordships’ House in 2010, were deficient in the protection that it offers against discrimination. Therefore, my first question is directed at the Minister, as well as at the noble Baroness. Have the Government carried out, as it were, a sweep and identified the loopholes that this Bill seeks to plug, and does the Bill succeed in strengthening the existing legislation in the way that the noble Baroness proposes, or is part of the issue here enforcement of the existing legislation? If so, in what way, and how can we remedy that?
I am aware that many organisations are very concerned about the position faced by some Muslim women in the terms outlined by the noble Baroness and others today, particularly with regard to the rights of women who are not married under British civil law. I completely accept the argument that has been made by most noble Lords—that, as citizens of the UK, we are all subject to the same laws. We have to ensure that that is not just something that we say but a reality, and that is partly what the Bill is about.
I read with interest the media coverage that this issue received when the noble Baroness launched her Bill. I have read her briefing and that of the British Academy, which has already been referred to. I have also read what the Islamic Sharia Council has to say. Southall Black Sisters supports the Bill in general but is concerned about some of its detail. I was also very struck by the remarks of the noble Lord, Lord Carlile, many of whose reservations I think we may share.
I come from and grew up in Bradford, and this whole discussion has reminded me of something that we have had to deal with in Bradford in the past few years. The issue was the treatment of children, particularly boys, in the madrassahs and mosques. The IPPR think tank, with the support of the Gulbenkian Foundation, published a generally very positive report about the work of the madrassahs and supplementary schools. However, it pointed to the ill treatment of children, particularly boys. There was also a television programme and a radio programme, which noble Lords might remember.
I will reflect on how that was dealt with in Bradford. Using existing powers and the current legal framework, Bradford Council required that all supplementary schools receiving its support, including madrassahs, had to comply with certain conditions. All staff working with children had to undergo enhanced CRB disclosure; there had to be a fully operational child protection policy and a designated person for child protection; and there had to be attendance at child protection training.
To encourage supplementary schools, the council, through its diversity and cohesion service working with the local safeguarding board, produced a model child protection policy in 2007. This was translated into the many community languages that we have in Bradford, including Urdu and Bengali, to ensure that staff working with children in faith-based organisations fully understood their roles and responsibilities when it came to safeguarding the children and young people in their care. This was backed up by child protection training from the council. Positive behaviour management courses were introduced in 2009 to help the supplementary schools address challenging behaviour by young people. In 2011, the Council for Mosques and the local safeguarding board jointly funded a child protection social work post, based in the Council for Mosques, to advise madrassahs on safe childcare practices.
The reason I mention the ongoing programme in Bradford is that no new legislation was required to remedy what was clearly a matter of very great concern. What was required was the enforcement of existing legislation and practice and a great deal of communication on the ground. A great deal of sensitive work was carried out with local mosques and community leaders, and very firm signals were given about how child protection law applied in this case. The programme was led by members and officers of the council, and it remains part of its ongoing community cohesion work.
My question to the noble Baroness, and to the Minister is: how much work has been done to have those types of discussions and to apply those sorts of approaches to enforce the existing legal framework and ensure that the anti-discrimination law that we already have applies across the piece in the way that was intended? My question is about discussions that the noble Baroness may have had with the Government, law officers and community leaders to explore ways of ensuring that our equalities legislation is enforced and underpins the work of the arbitration and mediation services, as it should.
I was struck by a suggestion that the British Academy made. It stated:
“The EHRC should introduce a benchmark within its Equality Measurement Framework to capture the experience of women users of minority legal orders. The result should be published as part of the Triennial Review which monitors progress on equality, dignity and respect for UK citizens. This could form the basis for considering whether the EHRC has a role in supporting religious women who are users of minority legal orders, as suggested by the EHRC’s recent research on understanding equality and human rights in relation to religion and belief”.
I wonder whether this has happened, and whether it would be a very good idea.
We are tackling a very serious problem. It may be that equalities and other legislation need to be strengthened. I was very reassured when the noble Baroness said that the issue is complex, sensitive and delicate, and that it would be a very good idea to open it up for broader examination and debate in Committee. Ultimately, if action needs to be taken, there is no question that we will support it, but it needs to be at the end of that process. I accept that. The proposals in the Bill are very important. We on these Benches will dedicate ourselves to finding legislative or other solutions to the discrimination that has been outlined. We support the Second Reading and look forward to working with the noble Baroness and the Government to find solutions to these problems.
Lord Gardiner of Kimble
My Lords, I thank the noble Baroness, Lady Cox, for bringing this matter for debate in the House today and explaining why she wants to see the measures in her Bill come into force. Her support of women’s rights across the world is well recognised and I admire her courage and determination in seeking decency and justice.
I have listened carefully to all the points that noble Lords have made, yet the Government have reservations as to whether the measures in the Bill are the best way forward, some of which have already been articulated sensitively by the right reverend Prelate the Bishop of Manchester.
The noble Baroness’s Bill is driven by the concern that all citizens should have the same rights. It has been suggested that religious law principles applied by arbitral tribunals and religious councils in this country may undermine the principle of equal rights under the law. Let me make it quite clear that religious principles can be applied legally in the national courts context only if both sides have freely agreed to be bound by them. Regardless of religious belief, every citizen is equal before the law.
The Bill prohibits the use of arbitration in family disputes. The Government, like their predecessors, are keen to promote the use of non-court dispute resolution services for family and other disputes. Typically this is through mediation. However, couples, communities and other groups have the option to use arbitration and to apply religious considerations. For example, the Jewish Beth Din has long been recognised as able to conduct arbitrations applying Jewish law considerations. The Muslim Arbitration Tribunal, established in 2007, provides an alternative route to resolve civil law disputes in accordance with Sharia principles. In both cases this is because the Arbitration Act 1996 allows parties to an arbitration to agree any system of law or rules, other than national laws, to be applied by the arbitral tribunal. Crucially, both parties must freely have agreed to arbitration and to the use of religious principles. Even where religious law considerations have been applied to an arbitration, the resulting decisions are subject to review by the national courts on a number of grounds, including whether the agreement was freely concluded.
Religious councils that are not governed by the provisions of the Arbitration Act are different. The recommendations of religious councils such as Sharia councils and the marriage tribunal in the Catholic Church are not binding in law because of this. Such recommendations are subject to the law of the land.
The noble Baroness raised concerns over coercion. No one should feel pressurised or coerced into using a Sharia or other religious council to resolve their dispute. Any member of any community has the right to refer to a civil court at any point, particularly if they feel pressured or coerced to resolve an issue in a particular way. If there has been coercion, the outcome of any mediation or arbitration cannot be enforced.
The noble Baroness, Lady Cox, has raised concerns about religious councils adjudicating on matters of domestic violence and violence against women. Quite clearly domestic violence is a dreadful form of abuse and is unacceptable in our society. We are determined to do all we can to tackle it and the Government’s approach is set out in the action plan Call to End Violence Against Women and Girls. It is essential that victims and potential victims are aware of the support and advice available. Indeed, the Government have been working with many groups on this. The Government are working with statutory, faith and other organisations to ensure that messages reach across all communities.
Many of the issues that the noble Baroness, Lady Cox, raises are already addressed in existing legislation. For example, the Equality Act prohibits discrimination on the grounds of sex. The Criminal Justice and Public Order Act prohibits intimidation of all witnesses. Common law already restricts what can be arbitrated and the Government have no plans to change this. Several noble Lords raised consent orders being checked by the courts. The court is under a duty to question any order which appears unfair and can refuse to make the order.
Turning to the specific proposals in the Bill—and answering the question of the noble Baroness, Lady Thornton— in Part 1 changing the Equality Act so that it applies to arbitral tribunals is considered unnecessary. Under the Arbitration Act tribunals must act fairly and impartially. Awards can be challenged in court if this duty is breached or there is other irregularity. Section 142(1) of the Equality Act already makes contracts unenforceable if they treat someone in a discriminatory way. This would apply to the results of mediations facilitated by a religious council if they were discriminatory. A consultation under Section 149 of the Equality Act is under way to establish whether the public sector equality duty that it creates is operating as intended. It would be wrong to amend Section 149 while the Government are carrying out such a review.
Turning to Part 2 of this Bill, arbitral tribunals must act fairly and impartially and can apply religious considerations only if all parties agree. It is already the common law that criminal acts and some family matters, such as child residence and contact, cannot be arbitrated. As I said, it is government policy to encourage alternative dispute resolution, including arbitration in limited circumstances to resolve family matters. However, it is important for people to be aware of their rights under our country’s legal system. In Part 3, the proposed changes to the Family Law Act 1996 are deemed unnecessary, as contracts are unenforceable if made under duress. The judge will not make an order unless he or she is satisfied that there was consent and equal bargaining power between the parties.
In Part 4, Section 51 of the Criminal Justice and Public Order Act already makes it an offence to intimidate those assisting an investigation, witnesses and potential witnesses. This includes victims of domestic violence.
In Part 5, I finally turn to the proposed new crime of falsely claiming legal jurisdiction. The Government believe that introducing the proposed offences is unnecessary. This is because Sharia councils and other religious councils have no jurisdiction in this country, therefore any decision they make can never be legally binding. If any decisions or recommendations made by any religious councils or arbitration tribunals were illegal or contrary to public policy or national law, then national law would always prevail.
Baroness Deech
The noble Lord, Lord Gardiner, has said more than once that if something improper happened in a religious court, the courts of the land would ignore it or undo it. Is not the problem that those who have these religious orders made will never know about the courts of our land or will never get to them? Therefore the English courts do not have the supervisory power that the Minister has suggested and which we wish they had.
Lord Gardiner of Kimble
I am most grateful to the noble Baroness, Lady Deech, because that is precisely what I wish to come to. I was setting out what I call the legalistic frame of why the Government have reservations about the Bill’s provisions, but I assure the noble Baroness that there is much more to come.
Increased awareness requires changes to society, not changes to the law. This means that it is not just a job for the Government. Communities and community organisations must also give a lead in communicating so that the rights of all our citizens are understood and protected. The Government are committed to working with communities and faith groups to take this forward. Practical co-operation between faith groups is crucial to the integrated society we want to build. It is about people from different backgrounds working together for a common good and tackling shared social problems.
The Government work with many faith bodies: the Church of England, the Catholic Bishops’ Conference, the Board of Deputies of British Jews, the Network of Sikh Organisations UK and national Muslim organisations including the British Muslim Forum, Muslim Hands UK and the Mosques and Imams National Advisory Board. Perhaps I may also say, as noble Lords have referred to the Southall Black Sisters, that the Government have worked in conjunction with that organisation and others to raise the points made particularly by the noble Baroness, Lady Deech, and other noble Lords, and in formulating, among other things, an information pack to ensure that rights are better and more widely known.
Noble Lords have also highlighted their concern about those Muslim marriages which are not registered. These are not legally valid in England and Wales and do not enable parties to seek a financial settlement in the family court if the marriage breaks down. The Government are aware of the problem and the great hardship it can cause. As a result, the Government are examining ways to increase awareness of the legal consequences of religious-only marriages so as to ensure that the rights of families and children are protected. The Department for Communities and Local Government also works with local bodies such as the St Philip’s Centre in Leicester and the East London Three Faiths Forum. These bodies, along with many others, do excellent work to encourage and help link up faith-based social action, including people from different ethnic, religious and cultural backgrounds.
For all the reasons I have set out, the Government are not convinced that introducing the measures proposed in this Bill—
Lord Carlile of Berriew
My Lords, I am grateful to my noble friend for giving way. He has given an Olympian exegesis of the processes and laws and consultations that are available to deal with the intellectual problem that underlies the Bill of the noble Baroness, Lady Cox. However, we are concerned here with real people and real cases. How long does my noble friend expect it will take before these Olympian provisions and attentions lead to the removal of these injustices from the history of real people in the United Kingdom?
Lord Gardiner of Kimble
I thank my noble friend for that intervention because it gives me an opportunity to conclude by saying that the Government are fully committed to protecting the rights of all citizens, and there is legislation in place to uphold those rights. What I said earlier is that the Government are actively working with groups to ensure that there is awareness and a change of attitude. The Government believe that that is the best way forward to ensure that the points of view that have been expressed so widely around the House—
Lord Elton
I am sorry, I am right behind my noble friend—in one sense only. I intervene just to ask my noble friend whether, when he develops the policies he has told us about in Olympian terms, he will be very careful as regards the sources of the briefings he is given and the research that has gone into them. It is clear that some of the briefings I have seen have simply been drawn from the bodies that are being investigated themselves, with no connection at all with those who have suffered at their hands, or indeed did not even know that they had any recourse.
Lord Gardiner of Kimble
I can assure my noble friend that the Government and all the other groups that are interested in resolving this issue will be looking at all the evidence. In reaching the conclusions on how best to take it forward, we will be bringing forward a matter that is sensitive, and therefore the Government are working hard with other groups to ensure—
Lord Cormack
I appreciate that this is my noble friend’s first wind-up from the Dispatch Box and that he has the good will of the whole House. However, will he discuss with his colleagues in government some of the citizenship points that I raised during this debate, because it is only through having a thoroughly well educated population aware of its rights and responsibilities that we can finally lay to rest the things which concern us so much in this House?
Lord Gardiner of Kimble
My Lords, I am delighted to agree with my noble friend. I shall certainly raise those matters that he raised as well as those points that all noble Lords have expressed in this debate.
Lord Swinfen
Before my noble friend sits down, could he answer the question that I asked when I spoke as to what the Government are doing to ensure that mosques are licensed to carry out marriages and that there is a civil document for those who are married rather than a purely religious document which is not valid in English law?
Lord Gardiner of Kimble
My Lords, as I have said, the Government are working with faith groups. One of the points that will be considered is that some mosques are registered but not all. I certainly think that this is an interesting way forward.
Baroness Cox
My Lords, I am deeply grateful to all noble Lords who have spoken and for the widespread support for this Bill from all parts of your Lordships’ House. I have also listened carefully to criticisms, reservations and suggestions for improvement and will ensure that all of them are taken into account as I and my colleagues working on the Bill proceed to the next stage.
Perhaps I may briefly respond to two of the questions raised by the right reverend Prelate the Bishop of Manchester just to have it on the record. First, he asked whether it is not already the case that the High Court will not enforce an agreement if it is discriminatory. It is very rare for the High Court to inquire into the facts behind an agreement; for example, to find out whether there is real consent. The evidence proves that the current legal framework is not enough. My Bill, as I said, will make it easier to overturn a discriminatory agreement. Advocacy groups which work with Muslim women want this Bill for precisely this reason. I hope that that may reassure the right reverend Prelate.
The right reverend Prelate also asked whether people who go to religious bodies for advice on property rights and child custody have to be turned away for fear of breaching the new criminal offence. I understand that the answer to that is absolutely not. As I said in my introduction, people can submit voluntarily to any rulings or advice they wish; there is no coercion with regard to people who voluntarily accept discriminatory proceedings because of their faith commitments or for any other reason. My Bill serves only to try to help people who decide that they do not wish to submit to discriminatory rulings.
As I mentioned, we will seek to explore the very important and, I repeat, complex and sensitive issues which the Bill seeks to address either in ad hoc committee or an independent committee of inquiry. This will provide an opportunity to obtain further evidence of the need for some legislation and to fine-tune the Bill with amendments in Committee. I am delighted that the noble Baroness, Lady Uddin, filled the gap in more senses than one by not only speaking in the speakers’ gap but also bringing a Muslim voice to this debate. We really appreciate that and we look forward to representatives of all different faith traditions, as well as those committed to secular viewpoints, coming to the committee of inquiry, whichever form it takes. All will be able to bring wisdom, experience, concerns and evidence to such a committee and, therefore, I hope that it will be very representative in the evidence that it receives.
Baroness Uddin
Will the noble Baroness accept that in any proposition made or further work done in relation to this matter, she and her other colleagues will ensure that there is proper leadership from Muslim women—not just their participation, willing or otherwise, but their proper leadership? In that way, she will achieve better, more constructive results.
Baroness Cox
I indeed give that assurance. It speaks exactly to my own commitments, so I am to offer it unequivocally.
Briefly, I respond in two ways to the points made by the Minister in putting the Government’s position. First, I am not sure whether during my speech the Minister heard me clearly take on the point of arbitration. I said that we will amend the Bill to meet exactly the concerns that he raised in his response to the debate. That point has been anticipated and dealt with.
Secondly, the position of the Minister and the Government is, among others, that the Bill is unnecessary because Sharia courts are not proper courts with powers of jurisdiction. The Minister made the point that every citizen in the country has access to the UK justice system. However, the power of Sharia councils lies in how they are perceived by their communities, allowing the creation of de facto legal structures and standards which contradict fundamental British legal principles—and the fundamental principle in this country of promoting gender equality and eradicating gender discrimination. Moreover, as my noble friend Lady Deech just highlighted, many Muslim women do not know what legal rights are available to them. Social or religious pressure is often put on them to participate in proceedings of a profoundly discriminatory nature. The Government do not seem to recognise the very real existence of an enormous disparity between the de jure situation and the de facto reality that causes such problems for so many women in this country today.
In due course and with the benefit of the further findings which will become available, I hope that we may help the Government to move in a more sympathetic direction to consider the much-needed measures to address the problems which currently threaten that fundamental principle of one law for all and alleviate those problems associated with gender discrimination which cause so much suffering to so many women in the country today. If the Minister had met some of the ladies who gave evidence to our briefing sessions, heard their stories and realised that they are just the tip of the iceberg—they speak about so many other women who dare not come forward because of the intimidation and pressure in their communities—then he would take the suffering more seriously than perhaps the timescale he has set out indicates.
I repeat my gratitude to all noble Lords in the Chamber today and to the many others—as I said, too many to name—who support this initiative. It seeks to protect our precious heritage of the legal system enshrined in our democracy and our much cherished commitment to the eradication of gender discrimination. I commend the Bill to the House.