Justice & equality

Nicholas Turner reflects on the implications of a case before the European Court

Along with nearly every other person in England (save only gay activists and government ministers) we wish Joy Burden, aged 88, and her sister Sybil, aged 81, every success in their case before the European Court of Human Rights.The sisters are challenging the government to give them the same exemption against inheritance tax as that enjoyed by those who are cohabiting same-sex couples in a civil partnership. As the law now stands, when one of them dies, the other will be forced to sell the house in which they have lived for forty years, in order to pay the tax.

You will remember that this unpopular and ‘unfair’ tax was one of the principal propaganda reasons used for the introduction of civil partnerships in the first place. It was ‘to put right an injustice’ suffered by gay couples who had lived together many years. How unfair then, we argued, that those who do not have sex with each other should be excluded from the financial benefits introduced by this legislation.

The Act has a set of schedules listing the prohibited degrees of relationship to a CP. Instead of seeing them as an implicit prohibition against incest, one could as easily read them as lists of close relations, those most likely to be living in your house, whom you might most wish could continue living there when you die.

If the tax benefits were to be extended only to those whose relationship can be homosexual and to exclude all who share a bond of affection, care and responsibility through existing family relations, this seemed, on the ethical a priori principle, to be unfairly restrictive. This was the argument used, successfully, by members of the House of Lords in June 2004, when they passed an amendment extending the benefits of CPs under certain restricted

conditions to unmarried siblings (subsequently defeated in the Commons).

A note was appended to the Bill to the effect that the amendment might then contravene the Human Rights Act. Why? Because it would discriminate ‘against opposite-sex couples (who would be ineligible for the new legal relationship),’ which is precisely the form of argument being used by the Burden sisters. And this is, unfortunately, why they may lose their case. As the government has already noted, to allow sisters to benefit as a special group would in effect mean that ‘other, less close, relatives (for example step-parents and step-children) are excluded from the new category.’ It seems probable that the old principle of equal misery for all will triumph.

We should still hope and pray they win. What is of particular interest to the Church, as guardian of the institution of marriage, has been largely ignored in the media, but repeated endlessly in New Directions, is that a CP has no formal content. Everyone ‘knows’ it is about gay couples indulging in sexual relations, but this is never stated in the legislation. It was deliberately left without any content whatsoever.

No reason is given as to why the couples must be of the same sex, nor why they cannot be closely related. And if there is no content to the partnership, as lawyers are now discovering to their financial advantage, this leaves a wide ambiguity as to what constitutes grounds for a dissolution. What does it mean that a CP ‘has broken down irretrievably’ [section 44] if there was no substance to it in the first place?

The content of a CP is maintained by an agreed set of assumptions (what Monty Python summed up as ‘nudge nudge wink wink say no more’). There can be no serious discussion about them, because there is no explicit content to discuss (as the House of Bishops failed to grasp in their ill-fated ‘Pastoral Statement’).

It will be interesting to see how the European Court deals with this conundrum, particularly when the issue is one of human rights. The implications could be far reaching, for, do not forget, the government is still proposing to introduce a Civil Marriage Bill to be based on the framework of the Civil Partnership Act.

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