Civil Partnership Bill gives rights to same-sex couples

The government's long-awaited Civil Partnership Bill* will prohibit discrimination in the employment field against members of same-sex couples who have registered as civil partners.

The Bill was introduced in the House of Lords and given a Second Reading on 22 April 2004. The Bill, which applies to the whole of the UK, will allow same-sex couples to make a formal legal commitment to each other by entering into a civil partnership. Its main impact in the employment field will be to place civil partners in the same position as married people as regards protection against discrimination on grounds of their status. There will be specific regulations on discrimination relating to pensions.

The Bill only applies to same-sex partnerships and does not confer any protection on people who are neither married nor in a civil partnership. The government's reasoning is that unlike gay people, who were legally unable to marry, those in opposite-sex partnerships have the option of civil or religious marriage.

Prohibited ground

Section 3 of the Sex Discrimination Act 1975 currently prohibits discrimination against married persons in the employment field. The section is to be amended and recast to take account of civil partnerships.

The key text of the amended s.3 is set out below. It provides for a definition of both direct and indirect discrimination. Somewhat confusingly, and very inelegantly, direct discrimination is defined as discrimination against a person who fulfils a condition of being married or a civil partner "on the ground of the fulfilment of the condition."

Indirect discrimination against married persons and civil partners is not defined in the same terms as are currently found for indirect discrimination on grounds of sex or against married persons. Instead, interestingly, the government has used the new language that will be found in the Sex Discrimination Act generally after the Equal Treatment Directive is implemented, presumably in October 2005. This is the same test as is now found in the amended Race Relations Act, and the new Regulations on discrimination on grounds of religion or belief and sexual orientation .

"3. Discrimination against married persons and civil partners in employment field

(1) In any circumstances relevant for the purposes of any provision of Part 2, a person discriminates against a person ('A') who fulfils the condition in subsection (2) if -

(a) on the ground of the fulfilment of the condition, he treats A less favourably than he treats or would treat a person who does not fulfil the condition, or

(b) he applies to A a provision, criterion or practice which he applies or would apply equally to a person who does not fulfil the condition, but -

(i) which puts or would put persons fulfilling the condition at a particular disadvantage when compared with persons not fulfilling that condition, and

(ii) which puts A at that disadvantage, and

(iii) which he cannot show to be a proportionate means of achieving a legitimate aim.

(2) The condition is that the person is -

(a) married, or

(b) a civil partner."

Pensions

The Bill provides a power to make amendments or repeals relating to pensions and allowances for the purpose of making provision for pensions and allowances for surviving civil partners or dependants of deceased civil partners.

The main amendment that we can anticipate is to reg.25 of the Employment Equality (Sexual Orientation) Regulations 2003 . This provides: "Nothing in Parts II or III shall render unlawful anything which prevents or restricts access to a benefit by reference to marital status." This Regulation currently precludes gay and lesbian couples from claiming that restricting survivor's benefits under an occupational pension scheme to married couples is indirectly discriminatory on grounds of sexual orientation.

This is one of the parts of the Sexual Orientation Regulations that was the subject of the judicial review challenge, Amicus - MSF section and others v Secretary of State for Trade and Industry and others, that was heard in March. Judgment was awaited in this case as this edition went to press. During the hearing, not surprisingly, the government emphasised that it would be addressing this general issue in the Civil Partnership Bill.

There is no suggestion, however, that any changes enforced by Regulations made under the Bill when it is enacted will be retrospective to 1 December 2003, when the Sexual Orientation Regulations came into force, let alone any earlier. On the contrary, the Government's explanatory notes say: "Contracted-out defined pension schemes would be required to take account of periods of pensionable service after commencement of the Civil Partnership Bill. Contracted-out defined contribution schemes would be required to provide survivor benefits from protected rights accrued after commencement of the Civil Partnership Bill, if the member is in a registered partnership at the point of retirement."

* HL Bill 53.