Liberty s Submission to Work and Pensions Select Committee on survivor benefits for same-sex couples

Transcription

1 Liberty s Submission to Work and Pensions Select Committee on survivor benefits for same-sex couples September 2013

2 About Liberty Liberty (The National Council for Civil Liberties) is one of the UK s leading civil liberties and human rights organisations. Liberty works to promote human rights and protect civil liberties through a combination of test case litigation, lobbying, campaigning and research. Liberty Policy Liberty provides policy responses to Government consultations on all issues which have implications for human rights and civil liberties. We also submit evidence to Select Committees, Inquiries and other policy fora, and undertake independent, funded research. Liberty s policy papers are available at Contact Isabella Sankey Rachel Robinson Director of Policy Policy Officer Direct Line Direct Line: bellas@liberty-human-rights.org.uk rachelr@liberty-human-rights.org.uk 2

3 Introduction 1. Liberty welcomes the opportunity to submit evidence to the Work and Pensions Select Committee on the importance of eliminating discrimination based on sexual orientation from occupational pension schemes. With the Parliamentary passage of the Marriage (Same Sex Couples) Act 2013, the debate around survivor benefits for same-sex couples was reignited. The inequality in provision between gay and straight couples is rendered more conspicuous by the Government s commendable decision to afford otherwise equal recognition to the union of gay and straight couples by legalising same-sex marriage. The scope of this inequality is narrow and as a result, the cost of equalising the system would be low. Those affected, however, face an unconscionable injustice, which is impossible to square with the Government s stated commitment to fairness and equality for same-sex couples. The scope of the exemption 2. The state pension regime already provides parity as between civil partners and widowers as regards benefits which accrue as a result of the national insurance contributions of a deceased partner. Public sector pension schemes and schemes which contract out of the state second pension are also already required to make equivalent provision for civil partners (and on the Marriage (Same Sex Couples) Act coming into force, for same sex spouses) in respect of survivor benefits. Regulations made pursuant to the Civil Partnership Act 2004 made provision to this effect, ensuring that civil partners accrue survivor benefits in public service schemes and contracted-out schemes from 1988, mirroring provision for widowers. 1 Therefore the inequality in provision applies only to survivor benefits under contracted-in occupational pension schemes. Here, pension providers are required to provide survivor benefits to civil partners if they are provided to spouses, but in the case of civil partners, benefits need only accrue in relation to service from the 5 th December This significant disparity in provision is facilitated by an exception in Schedule 9 to the Equality Act The Civil Partnership (Contracted-out Occupational and Appropriate Person Pension Schemes) (Surviving Civil Partners) Order 2005, SI 2005/ Paragraph 18. 3

4 3. Liberty was disappointed to learn, on publication of the Government s response to its consultation on equal civil marriage, 3 that rather than addressing this inequality through legislation, the Government intended to extend the discriminatory difference in provision to same-sex spouses. Parliamentary passage of the Marriage (Same Sex Couples) Act Notwithstanding Liberty s on-going engagement with the Government Equalities Office and the Department for Work and Pensions, the Bill provided for gay spouses to be subject to the same unfavourable treatment as civil partners under their occupational pension schemes. 4 Amendments designed to eliminate this anomalous and discriminatory provision were tabled in the both the House of Commons and the House of Lords. At Committee Stage in the Commons, an amendment providing for equal treatment under occupational pension schemes was tabled by the Shadow Equalities Minister, Kate Green MP, who argued that it would be unwise not only to perpetuate but to extend discrimination in relation to same-sex married survivors. 5 At Report Stage an amendment to the same effect was tabled by Dr Caroline Lucas MP with strong statements of support from members of all three main political parties as well as from the TUC and member unions UNISON, the CWU, the GMB and the PCS. 6 In supporting the amendment, the Rt Hon Sir Malcolm Rifkind MP argued that [i]f the Government and the House want same-sex relationships to have full equal rights, [Dr Lucas s] amendment must be the right course of action. 7 Labour MP Mary Glindon urged that if people are to have parity before the law, they must have not just emotional parity, but financial parity. Anything less would not be equality in any form. 8 Liberal Democrat, Dr Julian Huppert MP labelled this discriminatory provision a bizarre anomaly and indicated that if Dr Lucas s amendment were pushed to a vote his Liberal Democrat colleagues would support it. 9 3 Equal Marriage: The Government s response, December 2012, para This provision is now set out at Schedule 4, paragraph 17 of the Marriage (Same Sex Couples) Act Marriage (Same Sex Couples) Bill, Committee Debate: 12th sitting: House of Commons 7 March, 2013, Column See Liberty s blog including statements of support: 7 Marriage (Same Sex Couples) Bill, Report Stage Debate: House of Commons 21 May, 2013, Column Ibid, Column Ibid, Column

5 5. Amendments were not pushed to a vote in the Commons, however the Government did introduce a limited concession to protect couples who were opposite sex at the time of marriage, but where one partner undergoes gender reassignment. Whilst a welcome concession, Liberty continued to lobby for an amendment would remove the entire discriminatory structure for all couples in marriages and civil partnerships. An amendment to this effect was again tabled in the Lords by Labour Peer Lord Alli who received support from Conservative and Liberal Democrat Peers as well as the Crossbench. The Lord Bishop of Guildford spoke to his amendment confirming that the Church of England s pension scheme already equalises provision for gay employees. In a report published on the 14 th June, the Joint Committee on Human Rights raised serious concerns about the legality and discriminatory impact of provision around occupational pension schemes in the Bill The Bill was ultimately amended by the Government at third reading in the House of Lords. Whilst provision for the preservation and extension of differential treatment remains, 11 the Government is now required to conduct a review into the differences in survivor benefits in occupational pension schemes between opposite and same-sex couples in legal relationships. A report of the review must be published by July The legal and ethical case for change 7. A clear area of concern for the Government surrounds the potential cost implications of equalising provision. On the Government s own analysis, one third of providers already make equal provision and the projected cost to the rest of the industry would be in the region of 18 million. 13 The Government projects further costs implications should the position of widows and widowers be equalised across the pension system. Liberty does not believe that the Government s financial argument has merit. A challenge to differences between survivor benefits paid to widows and widowers has already been brought and rejected by the courts. 14 Whilst this matter is yet to be adjudicated before the European Court of Justice, there are coherent policy justifications, relating to historic differences in the working practices 10 Report of the Joint Committee on Human Rights, Legislative Scrutiny of the Marriage (Same Sex Couples) Bill. Available at: 11 Marriage (Same Sex Couples) Act 2013, Schedule 4, Part 6, paragraph Marriage (Same Sex Couples) Act 2013, section Hansard: 10 July 2013 : Column Cockburn v Secretary of State for Health, [2011] EWHC 2095 (Admin). 5

6 of men and women, which differentiate this situation from the continuing discrimination against same sex couples.. 8. The Government has, further, consistently justified its decision to extend discrimination in the provision of occupational pension benefits through the Marriage (Same Sex Couples) Act, on the grounds that an equalisation of treatment would entail an unforeseen cost to pension schemes. This assertion sits uncomfortably with the inherently speculative nature of pension provision. No pension provider can accurately predict how many individuals within a pension scheme will be gay, never mind the number that will marry or form a civil partnership with an individual who outlives them by a significant period of time. Pension providers deal constantly in uncertainties around the length of life, the possibility of illness, the decision to marry and many other issues. 9. We further challenge the assertion that avoiding provision which has a retrospective effect on providers is a hard and fast rule. During the parliamentary passage of the Civil Partnership Act 2004, the then Labour Government initially argued that survivor benefits under public sector and contracted-out schemes should only accrue in relation to future service for civil partners. The Government ultimately changed its mind siting the need to provide equality of treatment for gay couples. 15 In terms of the state pension too, the need to avoid discriminating on the grounds of sexual orientation has been recognised with Schedule 24 of the Civil Partnerships Act amending the Social Security Contributions and Benefits Act 1992 to allow civil partners to draw on the contribution record of their civil partner. 10. Much of our equality legislation is routed in a recognition of the importance of eliminating discrimination in our wider social structures. This means that Governments should not simply refrain from discriminating, but should place duties on employers and service providers not to do the same. A society in which the state refrains from discrimination, but in which you may be treated less favourably under a pension scheme on the basis of your sexual orientation is not a fair society. Prior to the Civil Partnership Act 2004, gay couples didn t have access to the legal benefits attracting to straight couples in many areas of life, from property rights to pensions. It is deeply unfair to make the argument for on-going inequality on the basis that, before 2005 we did not formally recognise gay relationships, therefore gay couples 15 Hansard: 12 October 2004 : Colum

7 cannot expect to receive the benefits they would have received had we awarded their relationships the respect they deserved at an earlier juncture. 11. In November 2012, Liberty s client, John Walker, won his legal battle to secure equal pension benefits for his civil partner. 16 The Employment Tribunal found that an occupational pension scheme providing that John s civil partner could only benefit from pension rights accrued since the time when civil partnerships became available in the UK was directly discriminatory. John and his civil partner have been together for 20 years and registered their civil partnership at the first possible opportunity, yet the pension scheme sought to restrict the survivor benefits available to John s partner to 500 per annum. If John dissolved his civil partnership and married a woman today she would be entitled to 41,000 per annum in the event of his death. 12. The Tribunal relied on the judgement in Maruko v VddB (1 April 2008), where the Grand Chamber of the European Court of Justice considered the right of a same sex partner to receive a widow s pension when their partner dies. The court concluded that treating married and same-sex couples differently in this respect, where national law recognised the relationships as equivalent in other respects, breached the Framework Directive on Equal Treatment in Employment (2000/78/EC). The Department for Work and Pension are now joined to an appeal brought by John s employer and their appeal is due to be heard by the Employment Appeal Tribunal in January Prior to representing John before the Employment Tribunal, Liberty also succeeded in persuading Foster Wheeler, a major multi-national company, to give civil partners of its employees the same pension benefits awarded to spouses. In this case the couple in question had lived together for 40 years and had entered into a civil partnership in Under Foster Wheeler s pension scheme surviving spouses were entitled to 50% of a member s pension upon their death, but, relying on the exemption in the Equality Act, civil partners were originally excluded. After filing an action on behalf of our clients in the Employment Tribunal the company changed its policy. 16 Walker v Innospec & Others, decision of the Employment Tribunal, 13 th November

8 Conclusion 14. Liberty can see no justification for continuing to permit discrimination in this area. If the law remains as it is for civil partners and same-sex spouses, it will be several decades before gay couples achieve real equality in relation to pension provision. Rachel Robinson 8