Corporate Veils and Gender Wars - A Reply to Richard Todd QC

In the August issue of Family Law, I wrote a short article about the Supreme Court ruling in Prest v Petrodel [2013] UKSC 34. That article was, in turn, a slightly expanded a more 'academic' version of my post on this blog about the ruling. Petrodel, for those who don't know, was a matrimonial finance dispute. The massively wealthy husband held a large part of his wealth in a number of companies entirely owned by him. During the marriage, he used these companies to provide a lavish lifestyle for himself and his family, yet somehow once divorce proceedings began he found himself unable to access any funds and unwilling to disclose large swathes of relevant information to enable the family court to assess the extent of his wealth and make a fair award to the wife. So far, so fairly unexceptional as big money divorce cases go. The cases ended up in the Supreme Court on the question of whether the family court is entitled to 'pierce the corporate veil' to gain access to assets held by the companies in order to transfer them to the wife.

As with my blog post, the article in Family Law gave a summary of the decision, and then moved on to discuss some of the possible bigger questions arising from the judgment. In particular, since there was something of a dispute between the way that family lawyers and company lawyers saw the issues in the case, I said this:

'...two aspects [of the case] combined to give the initial impression that family law might have won the day. However, it seems more like a case where Mrs Prest won her battle but family law lost the war.' 

As I went on to say, the main way in which the case marks a 'loss' for family law is that one of the tools that had been used to ensure that family financial arrangements were fair after divorce was lost - the family court can no longer get at assets that are held by companies when one of the spouses has complete control of that company.

Anyway, I don't want to re-hash that argument here. My reason for coming back to the matter is that Richard Todd QC, who acted for the wife in the Supreme Court, wrote a short piece for Sweet&Maxwell explaining why my Family Law article was wrong about this, and I thought that it was interesting. (Also, what better way to tempt a response than with the sweet words 'Rob George is wrong'? No seriously, it's interesting, and flattering that someone as senior as Richard Todd QC spent time thinking about my article and replying to it.)

So first a quibble. Richard Todd has a dig at me for saying - in his words - that 'Mrs Prest (probably) won her battle' because, as he says, 'there is no "probably" about it'. Well, I agree, which is why I never said probably - I said she won. I quoted a cautionary point from Lady Hale's judgment about whether there might be difficulties ahead still in realising those assets (Todd says not, which is good news), but there wasn't any doubt that she won. The question for me is whether the way in which the Supreme Court reached that conclusion might be less useful for wives in future cases. The only place I can see that I can be mistaken for saying 'probably' is in the sentence quoted above, but as a matter of construction (!) I think that it's reasonably plain that I am contrasting my conclusion (she won but family law lost) with the initial impression given in the preceding sentence (family law won).

Anyway, that's by the by. A much more interesting point, where I truly hope that I am wrong, is about whether family law did indeed lose the day. Accepting my premise that the 'war' being fought is for gender equality, Richard Todd's argument is that since the Petrodel ruling he has been contacted by 'many troubled bankers' and companies wondering how secure their financial position is, but not one wife has been in touch to ask the equivalent questions. He goes on to give three reasons why this shows that wives will be better off after the Petrodel ruling.

Would that it were so, but I'm not convinced by the 'casual and unscientific illustration' (Richard Todd QC's words). I find it entirely unsurprising that after a big money court decision affecting company assets, the companies and men who run them would go running to expert lawyers to ask about their financial position. The companies have reason to be reading law reports and the money to get legal advice, and the men are the ones who know that they are siphoning off their assets into those companies - of course they're the ones going to specialists like Richard Todd. The wives, on the other hand, are unlikely to read Supreme Court judgments about piercing the corporate veil, and if they do they are unlikely to be aware that it is an issue which affects them. Meanwhile, the men - with the advice from lawyers that we now know they are already getting - are busy using the helpful guidance from Petrodel to make sure that the assets are indeed safe behind the veil.

So yes, I hope that I'm wrong and that Petrodel is indeed 'a triumph' for family law - but I'm not holding my breath.

Prest v Petrodel: Winning the Battle but Losing the War?

The Supreme Court today gave judgment in Prest v Petrodel. The case is about post-divorce financial arrangements, and asks what happens if one party has significant resources held by a company which he or she controls. The Supreme Court held that these assets should be taken into account by a family court judge when assessing the overall wealth and assets available to the couple. However, the judge is not then entitled to 'pierce the corporate veil' and order the company to discharge liabilities owed by one spouse to the other unless the company had been set up specifically to avoid those liabilities. That was not so on the facts of this case, though as it happened the properties owned by the companies in question were owned on bare trust for the husband, and therefore the court could order them transferred to the wife.

The consequence of that was that the wife won her appeal and the original order of the High Court Judge was restored (having been overturned in the Court of Appeal), but the reasons for doing so were different from those accepted by the High Court Judge. In terms of the legal principles, the Supreme Court unanimously upheld the Court of Appeal, meaning that the practice of some family courts of quietly ignoring the corporate veil must indeed now cease (as the Court of Appeal said at para 161). This seems like a case where the wife won her battle, but family law lost the war.

Piercing the Corporate Veil?

In law, an incorporated company has its own legal personality, and is a different legal actor from any individuals who are involved with it. Consequently, it can follow that the company is liable for things that it does, but the individuals within the company are not personally liable. The corporate veil refers to this divide between the company and the individuals. If the corporate veil is 'pierced', it means, basically, that this divide is ignored, such that either the company is (for example) made to discharge liabilities owed by an individual, or that an individual is (for example) made to discharge liabilities owed by the company.

As Lord Sumption says at para 16, there are many circumstances where similar things happen but which do not involve piercing the veil in the strict sense. So the controller of a company can be personally liable for its actions when acting as the company's agent or as a joint actor; and a company can be said to act on behalf of an individual, or to own property on an individual's behalf, if it acts as his nominee or trustee.

The Supreme Court judgment explains at length about the meaning of the corporate veil and the circumstances in which it may be 'pierced'. A 2009 decision by Munby J in the High Court provided a useful summary of the approach, and Lord Sumption summarised that decision at para 25:

Munby J formulated six principles ...: (i) ownership and control of a company were not enough to justify piercing the corporate veil; (ii) the court cannot pierce the corporate veil ... merely because it is thought to be necessary in the interests of justice; (iii) the corporate veil can be pierced only if there is some impropriety; (iv) the impropriety in question must ... be 'linked to the use of the company structure to avoid or conceal liability'; (v) to justift piercing the corporate veil, there must be 'both control of the company by the wrongdoer(s) and impropriety, that is (mis)use of the company by them as a device or façade to conceal their wrongdoing'; and (vi) the company may be a 'façade' even though it was not originally incorporated with any deceptive intent, provided that it is being used for the purpose of deception at the time of the relevant transaction. The court would, however, pierce the corporate veil only so far as it was necessary in order to provide a remedy for the particular wrong which those controlling the company had done.

For Lord Sumption, the 'wrongdoing' in question needed to relate to an attempt to evade liability; in other words, that the company was being interposed in an attempt to protect the individual who controlled the company from having to discharge existing liabilities that he owed. (It may be noted that a majority of the Justices (Lady Hale, Lord Wilson, Lord Mance and Lord Clarke; see paras 92, 100 and 103) were cautious about being too firm in saying that this was the only route to piercing the veil.) That would apply to matrimonial proceedings if, for example, during the breakdown of the parties' relationship, the husband set up companies and moved his assets into them. However, it did not apply to Prest because the companies were genuine and had been up and running for years before the parties' marriage broke down.

Matrimonial Proceedings

The big question underlying the Prest appeal was whether proceedings for financial orders following divorce, governed by the Matrimonial Causes Act 1973, fell outside this general approach or not. In other words, was a judge in the family court entitled to pierce the corporate veil in circumstances that fell outside the general rule?

The clear answer from a unanimous Supreme Court was: no. The MCA allows the court to redistribute any property to which a party is 'entitled'. The whole point of the corporate structure is that the individual is not 'entitled' to the assets within it; they are owned by the company. If the company has been set up as a sham, or the assets have been placed in it intentionally to attempt to avoid liability under the MCA, then normal principles would allow the corporate veil to be pierced. But if, as in Prest, the family has simply arranged their finances in whole or in part using company structures, then the MCA does not offer any way to access those assets.

That does not mean that such assets are ignored by the family court. Quite the contrary: by s 25(2)(a) the court is required to have regard to the 'income, earning capacity property and other financial resources' of each spouse. Consequently, the family judge is entitled to make enquiries into assets held in companies when assessing what the overall wealth of the family before the court is, and thereafter to take into account the existence of such assets when deciding what would be a 'fair' distribution of the parties' resources.

However, if the assets are held by a company then, in the normal run of things, those assets themselves cannot be interfered with by the court. The court will have to use its powers to make orders that achieve 'fairness' as best it can without interfering with that property itself. So it can make orders that affect other property; and it can make on-going maintenance orders that rely, for example, on the husband receiving dividends from his companies in order that he can meet the maintenance requirements to his former wife; and in some cases it could order that shares in the company be transferred to the wife. But property owned by the company itself cannot be interfered with by the family court.

Discussion

The wife in Prest won her appeal, in the sense that the original order in her favour (that certain UK properties be transferred to her name) was restored by the Supreme Court. Looking at the bigger picture, though, the reasoning of the Supreme Court leads to the implication that many similar cases will not end up the same way.

The wife in Prest was able to succeed because the Supreme Court was satisfied that the companies actually held the properties on trust for the husband as bare trustees. The properties had in fact been bought by the companies with the husband's money (rather than with money in the companies), and ordinary trust law principles say that if X buys property with Y's money then, absent other information, X will be held to be a trustee of that property, holding it for Y. With such a straightforward trust (called a bare trust) the beneficiary (the husband) is absolutely entitled to end the trust at any time and take the property for himself. He is therefore 'entitled' to it in the MCA sense of the word, and so the properties were available to be transferred to the wife.

Lord Sumption cautions against making general statements of principle in the application of this doctrine, but nonetheless suggests that as regards the matrimonial home 'the facts are quite likely to justify the inference that the property was held on trust for a spouse who owned and controlled the company' (para 52). That may be so, but it would be overly optimistic to think that this assumption will be of any great help in achieving results which are 'fair' overall.

Of course, the family home is an important asset for most families; but for those with the kind of wealth to be making use of corporate structures for 'wealth management', the home is likely a drop in the ocean. If this is the only asset that, in practice, is available for the family court to transfer to divorcing wives, the overall effect will indeed by, as Thorpe LJ said in the Court of Appeal, to give 'an open road and a fast car' to the spouse attempting to keep assets out of the hands of his former spouse.

Prest therefore leads us to a good result on its facts (though note Lady Hale's caution about whether the wife might still be getting a raw deal: para 96), but it is hard to be overly optimistic about future cases ending up the same way.

More on the Marriage (Same Sex Couples) Bill

The issue of allowing same sex couples the right to marry has featured on this blog a number of times - first in March 2012 when I first argued in favour of this change; then in June 2012 when I took issue with three of the main arguments used against the change; and most recently in February 2013 when I sympathised with the difficult position that the Prime Minister had found himself in, attacked over this proposal from left and right alike. But here we are again.

Last Friday, after a fairly short but rocky road, the French equivalent law allowing same sex couples to marry was signed by President Hollande. Here on this side of the Channel, things are less straightforward. Apparently Tim Loughton MP (Con, East Worthing and Shoreham; formerly Children's Minister before he was sacked last autumn) is introducing an amendment to the Marriage (Same Sex Couples) Bill today. The amendment will say that, at the same time that marriage is opened up to same sex couples, civil partnership will be opened to heterosexual couples.

Now obviously proposed amendments to Bills do not necessarily end up being adopted, but this one is said to have the backing of 150 Conservative MPs (the Tory Party has a free vote on this Bill) and, at least possibly, the support of the Labour front bench. Superficially, it might sound like a good idea, but I can't begin to explain the many ways in which this makes me despair. Here's two for starters.

First, and most importantly, this is a wrecking amendment. Loughton is on record as being opposed to equal marriage rights for same sex couples, and this wrecking motion works in two different ways. One is that it makes it less likely that the Bill will be passed into law at all. In this instance, the way in which that is calculated to happen is that those favouring the amendment hope that, with it there, the government will pull the plug on the entire Bill. I'm not sure how likely that is on this occasion, given how committed David Cameron seems to be to the body of the Bill itself, but it's possible.

The other way that the wrecking motion works is that it delays the implementation of the Bill by making it more complicated. I'm not sure how effective this approach is on this occasion either, but it seems to have the government running scared, which says something about its potential. The alleged cost of the amendment is hard to assess objectively, because allowing straight couples to enter civil partnerships doesn't actually add any significant 'cost' unless these are straight couples who wouldn't have married.

There are some such people, of course, because they object to marriage for personal reasons (usually related to either its perceived religious status - which civil marriage doesn't have - or its patriarchal history which the law has long since resolved). But those people are making a personal choice, not having one imposed on them by law. The eligibility criteria for civil partnership are identical to those for marriage. (At the moment they aren't of course - the requirements as to the sex of the people involved are different - but those differences will be removed by this Bill.) So while some people who can marry but choose not to do so may later choose to enter civil partnership, they haven't really gained anything that they didn't have before. The legal consequences of marriage and of civil partnership are identical in all material ways.

That brings me to my second reason for sighing at Loughton's amendment. Civil Partnership was introduced in 2003-04 because the government of the day was led to think that it would be unable to get a same-sex marriage Bill through the House of Lords. Now, whether they were right about that or not, the compromise that they found was to enshrine all the same rights and duties in a status which had a different label. In legal terms, civil partnership is marriage - only the name is different (other than one or two inconsequential details).

It has always baffled me why a heterosexual couple would want a civil partnership, since to me is represents a blatantly discriminatory, lesser status while carrying all the same rights and duties. That lesser status is apparent in international law, for example. Any marriage performed in this country will be recognised as such around the world. A civil partnership, on the other hand, will only be recognised as carrying legal rights in a few places.

The proposal to allow straight couples to enter civil partnerships is absolutely not comparable with the French position of having marriage on the one hand and the PACS on the other - PACS comes with very significantly lesser rights and duties than marriage, and is consequently open to many more people than marriage. (Siblings, for example, can enter a PACS, but would not be able to marry.)

So if this amendment is passed, and if we end up with a situation where any couple, whether straight or gay, can enter either a marriage or a civil partnership, the law will have reached the farcical position whereby a stop-gap measure introduced to grant legal rights to same-sex couples in the face of social opposition will have been extended to create two virtually identical statuses which all couples can pick between.

Ironically, this amendment is being pursued not only by those who are opposed to equal rights for same-sex couples, but by those who are most enamoured with the arguments about protecting 'traditional marriage'. I think it is quite reasonable for Cameron to position his approach as supporting marriage - by extending marriage to same-sex couples, more people can marry and enter this special union. Those who support the amendment, on the other hand, are favouring extending to opposite-sex couples all the legal rights and duties of marriage, but outside marriage. How this fits with their pro-marriage agenda is beyond me.

Defending Cameron? Well, Just on Same-Sex Marriage

Talk about a rock and a hard place. David Cameron's draft legislation on the legalisation of same-sex marriage ceremonies goes to Parliament on Tuesday, but the proposal seems to be attracting criticism from both sides. On the one hand, some religious groups and some on the political right have criticised the plans because the new law will depart from tradition and, in a somewhat contradictory argument, because there are more pressing things to attend to.

On the other hand, there are those on the other side of the argument who criticise the proposals because of the accommodations which are made for religious groups, and indeed some say that this proposal is really just a ruse on the part of the government to distract the population, either from their anti-equality approach to most policy issues or more broadly from their unpopularity with much of the electorate.

I'm not usually one to defend the PM, but I do wonder whether any of these arguments has any real merit. The new law will depart from tradition, that is obviously true. But then, most new laws depart from the status quo - that's what's new about them. The fact that reform will involve change is more or less inherent, and in itself is not an argument against change. Jim Hacker is right, in Yes, Prime Minister, to be incredulous when Sir Humphrey tells him that he cannot have a cook because that's the way it has been for two and a half centuries. Tradition is not in itself an argument.

At the same time, some Conservative party members seem to have missed the point of the reforms, which have drawn a clear distinction between civil and religious marriage. The former will be allowed, the latter will be left to individual religious groups to determine (except for the Church of England and the Church in Wales - more on that in a moment). Given that, the view of Mr Andrew Kolker, chairman of the Congleton Conservative Association, is a little hard to accept. He was quoted in the Guardian yesterday as saying this:

"We have more important things to do and we should be leaving this to the church to sort out."

I'm sorry, what? We should be leaving this - marriage, I suppose he means - to the church? I have no objection to there being religious marriages which the state accepts (though we might ask why some religious marriages count in the state's eyes and some don't) but, in a secular state, marriage is really not a religious institution. Marriage carries enormous social and legal consequences, and those of any religion or none are entitled to those benefits and burdens if they so chose. The Marriage Act of 1836 made valid marriage ceremonies performed in civil ceremonies by state-employed registrars, and it is extraordinary that, 177 years later, anyone should think that 'the church' (meaning, I presume, the Church of England) should 'sort out' this issue. No thanks. The state shall determine who may and may not enter a marriage.

Then there is the point that 'we have more important things to do'. The difficulty with this is threefold. First, it is always true that there are urgent things to attend to; but focusing only on the urgent can mean losing sight of what is important. A good chunk of Parliamentary business could be dispensed with if only the most important thing were ever attended to, and society would be much diminished by that approach. The second difficulty is that this point undermines the main argument against this legislation. By saying "we're too busy", it has to be conceded that, but that there were more time, this would be a good thing to do. If it's a good thing to do, then stop complaining about it. Finally, I take issue with the idea that same-sex marriage is unimportant. Some of its benefit is symbolic, since the legal benefits are available already through civil partnership - but symbols are important. The commitment to equality, both in our hearts and in our actions, calls for changes to the law to remove unjustified inequalities. This inequality has no justification, and it is important that it be removed.

On the other side, the PM faces criticism for giving too much ground to religious groups. This argument seems to me unhelpful. I am saddened that the Church of England has set its face against same sex marriage, and I think many of its members - including some very senior members - are deeply unhappy with the position adopted. I also think that it will be a relatively short time before the Church changes its collective mind, which makes it all the more disappointing that the message sent out has been so firmly against these proposals.

Nonetheless, just as I do not think that the state should be dictated to by any religion's views, I am also cautious about the state imposing its views on religious organisations. This is, perhaps, a less strong point for me, because there are limits to what a religious organisation can claim exemption from. I also think that there is a respectable argument to be made that any religion that wishes the ceremonies that it performs to be recognised by the state should comply with the state's rules. Nonetheless, for pragmatic reasons if nothing else, I would not choose this moment to start that fight. Let's get this legislation passed and deal with perfecting it later.

Then there's the 'ruse' argument. I've heard a number of people make this point, but I just don't see it. If it's true, and Cameron is trying to kid us, or distract us, into thinking he's a nice guy, I don't think anyone's buying it. I'm happy to support this measure, as is most of the Labour Party and many others who disagree with most of this government's agenda - but it doesn't make me any more likely to vote Conservative at the next election. At the same time, swathes of the Tory party's core membership is jumping ship, so it's hard to see this as a nifty political manoeuvre.

Moreover, for those hundreds of thousands of people whose welfare benefits are being cut, or who can no longer access local services or legal advice for their problems, or who are forced to remain on waiting lists longer for medical treatment as waiting times rise again, I hardly think that gay marriage legislation is going to make them forget the overall agenda of this government. There's plenty to hate about Cameron's government, so let's stop attacking him over the one thing he's doing that we agree with.

Deconstructing the Marriage Debate

Some people claim that gay couples should not be allowed to marry because it will be bad for children, have adverse consequences for other people, and because it is in any case unnecessary since civil partnership gives the same legal rights as marriage. This post explains why those arguments do not stand up to scrutiny. Marriage is a good thing, and it is sad that those who claim to be 'for marriage' are trying to argue against letting all committed couples marry if they wish to do so.



I attended a panel discussion on allowing same-sex couples to marry, hosted by the British Academy in London, earlier this week. On the panel were

 - the Rev Dr Giles Fraser, formerly Canon Chancellor of St Paul's and now a parish priest in London
- Professor Leslie Green, Professor of the Philosophy of Law at the University of Oxford
 - journalist Melanie McDonagh, currently a Leader Writer for the London Evening Standard; I cannot find a useful summary page, but a google search gets you lots of her published articles.

The panelists were, of course, aiming to give a different perspective on the issues raised, and a vigorous debate followed their talks. I'm not going to engage with all the points discussed there, but some of the claims made by Ms McDonagh reminded me of things said by the Coalition for Marriage (C4M), and I find these claims impossible to let pass.

The claim that marriage is good for children:

One of Ms McDonagh's points, and which one also finds under the heading 'Marriage is Unique' on the C4M homepage, is that children do best when they are raised by a mother and a father who are married to one another. As C4M puts it, 'the evidence shows that children do best with a married mother and a father'. Well, there is indeed a good deal of evidence that this claim, in itself, is true.

The problem is that those who are trying to make any further claims about what this evidence means are confusing correlation with causation. Children's well-being and marriage are positively correlated - in general, children of married parents do better on most standard measures than children whose parents are separated, children with only one parent for whatever reason (death of a parent or an absent parent), and children whose parents live together but are not married. However, that correlation says nothing about causation - the question of whether marriage causes this greater well-being is not answered by observing the correlation.

So what do we know about the causation? In 2010-11, the Institute for Fiscal Studies (hardly a radical organisation) published a number of papers based on their study of marriage and unmarried cohabitation. What their research found was that people who marry tend to have more of the characteristics that contribute to greater child well-being and relationship stability than those who have children outside of marriage. Research economist Dr Ellen Greaves is quoted on the IFS press release as saying this:

"It is true that children born to married couples are on average more cognitively and emotionally successful than children born to [unmarried] cohabiting couples. But careful analysis shows that this largely reflects the differences between the types of people who decide to get married and those who don’t. On average those who marry tend to come from more advantaged families, and are more cognitively and emotionally successful themselves, than those who cohabit. This explains the differences in outcomes for children. Marriage itself appears to confer little, if any, benefit in terms of child development."

So yes, it's true that children whose parents are married tend, on average, to do better than those whose parents are not married. But the children who do less well would not be helped by the mere fact of their parents marrying. (The main effect of such a shift would be on the statistics: the average well-being for children of married parents would come down, as less well-resourced (in a broad sense) parents entered the 'married' category.) The best thing that we could do to promote children's well-being is to help the unmarried parents to acquire more of the things that married parents already have - education, material resources, and other things to help with emotional and cognitive success in the adults.

I cited the IFS findings in a question to Ms McDonagh, and she responded by saying that "those findings have been disputed". The work that Ms McDonagh referred to, responding to the IFS study, comes from the Centre for Social Justice, but it makes for less than compelling reading. It combines bald assertions ("There is good evidence that the effects of marriage are really the effects of prior commitment which leads to marriage") with a flawed attempt to challenge the methodology of the IFS study.

For example, in assessing marriage versus unmarried cohabitation, the IFS study has 'controlled for' the likelihood of pregnancy being unplanned and for the quality of the parents' relationship when the child is 9 months old. The CSJ characterises this as the IFS "stripping out very important things". The CSJ's point seems to be that unplanned pregnancies are bad for relationships (which may be true; I don't know, and the CSJ gives no evidence in support of the claim) - they say this:

"unplanned pregnancies tend to make people feel trapped and result in more fragile partnerships in the longer term. If people have not made a conscious, deliberate decision to commit, they are more prone to split up when things get difficult."

But this point, true or not, is a distraction and is no answer to the IFS study. When a factor is 'controlled for' by researchers, that means that you take into account its effects - in other words, you are asking: what is the effect of relationship type, once you take into account whether the pregnancy was planned or not? Both married and unmarried couples have both planned and unplanned pregnancies; the IFS study is asking whether the parents' relationship type affects relationship stability and child well-being regardless of whether the pregnancy was planned or unplanned.

Leaving all this aside, though, I still struggle to understand how the 'marriage is good for children' argument can be deployed as a reason to prevent same-sex couples from marrying. For those who think that marriage in itself brings benefits, would it not be sensible to encourage as many couples as possible to enter into marriage? While this may come as a shock, same-sex couples often have children (especially lesbian couples). And, what's more, they do not require medical assistance to achieve that, as Ms McDonagh implied at the talk. Lesbians are perfectly capable of having children with the help of a willing male friend; and, indeed, gay men are perfectly capable of having children with the help of a willing female friend (though I grant you that the input of that female friend is rather more onerous than the input of the male friend of a lesbian parent).

So same-sex couples are parents, and have been being parents for a long time. (Single homosexual people have been doing this too.) The law provides various mechanisms to help same-sex couples to be recognised as parents, whether through adoption, assisted reproduction, surrogacy arrangements or obtaining parental responsibility for a child once the child is born. Same-sex parenting is both allowed and actively facilitated by our law, and so it seems strange for those who think that marriage is important for children to say that the institution should be specifically closed off to same-sex parents. After all, the children involved bear no responsibility for who their parents are, and if marriage is about promoting children then surely all parents should be encouraged to marry, regardless of their sex.

The claim that same-sex marriage will have 'profound consequences':

The next claim that I want to consider is the supposed broader consequences of allowing same-sex couples to marry. On this point, I find the sheer scale of the scaremongering on the C4M website rather astonishing. Under the heading 'Profound consequences', it says this:

"If marriage is redefined, those who believe in traditional marriage will be sidelined. People's careers could be harmed, couples seeking to adopt or foster could be excluded, and schools would inevitably have to teach the new definition to children. If marriage is redefined once, what is to stop it being redefined to allow polygamy?"

It is hard to know where to start with this passage. Perhaps I lack imagination, but I am simply unable to see how anyone will be 'sidelined' by the fact that same-sex couples are allowed to marry. My first question is: from what will they be sidelined? And what will it mean to be sidelined? I may be wrong, but I would have thought that most people's interest in marriage starts and stops with their own marriage (if they are married or plan to marry) and with those of people close to them. What possible difference does it make to me whether two strangers are or are not married?

And then, 'people's careers could be harmed'. I suppose this is a reference to possible further cases like Ladele v Islington LBC. Ms Ladele was a marriage registrar who opposed civil partnerships on religious grounds (though perhaps ironically, given the current debate, her real objection was to gay marriage, which she equated with civil partnership). Put simply, Ms Ladele eventually resigned from her job because she felt unable to perform civil partnership ceremonies as her employer was demanding, and then sued for constructive dismissal. The Court of Appeal dismissed her claim, essentially on the basis that "the legislature has decided that the requirements of a modern liberal democracy, such as the United Kingdom, include outlawing discrimination in the provision of goods, facilities and services on grounds of sexual orientation" (para 73).

While some may have sympathy with Ms Ladele, I simply cannot see that a person's views, religious or otherwise, should enable them to pick and choose which parts of their job they will do, particularly when that job is to perform a function of the state (being a marriage registrar). Suppose that a person were against inter-racial marriage - we would surely not countenance permitting them to refuse to perform such ceremonies and still keep their job. (Inter-racial marriage was illegal in many US States until Loving v Virginia in 1967. No doubt many people in those States objected to the change in the law which the US Supreme Court forced upon them, but the decision was still plainly right.)

Then there is the question of (presumably heterosexual) couples be excluded from adoption or fostering. Again, I struggle to understand this point. The rules on adoption and fostering are already de-coupled from heterosexuality and from marriage - a person or a couple can apply to foster or adopt regardless of these factors - so how will permitting same-sex couples the status of marriage affect that? I am told that there are examples of people being stopped from fostering or adopting because they oppose homosexuality; but whatever one thinks of those cases (if they exist), it is difficult to see that the marriage question actually makes much difference.

Next, schools will have to teach children that both heterosexual and homosexual people can marry. Well yes, okay, I'll semi-concede this one. It is true, I suppose, that if schools 'teach' about marriage they will need to point out that marriage is not sex-specific. (I may be deficient for not having gone to a religious school, but I cannot recall being taught about marriage in any significant detail when I was at school. I understand that the importance of relationships, including marriage and other stable relationships, is now included in the Personal, Social and Health Education syllabus, but I am not clear that this involves much detailed discussion about marriage per se.)

And then the polygamy argument. Without getting into the point that some cultures happily allow polygamous marriage (and indeed the law in this country will give legal recognition to a polygamous marriage performed in another country if the spouses move to the UK), this claim is a real red herring. It is really no different from the claim that allowing same-sex couples to marry would then, of necessity, require the state to recognise my marriage to a tree. Personally, I'm not sure that I see quite why we should not allow polygamous marriage, but that is beside the point. The 'thin end of the wedge' argument only works if the further examples are materially identical to the original claim, and multi-party relationships are, in some significant ways, different from two-person partnerships. Committed heterosexual couples and committed homosexual couples, on the other hand, have no material differences; that is one reason why discrimination on the ground of sexual orientation is prohibited by the Equality Act 2010, and the law has recognised that for a good many years now.

The claim that gay couples don't 'need' marriage because of civil partnership:

I'm going to deal with this one fairly quickly, because I discussed it on my blog a couple of months ago. The C4M website points out (correctly) that civil partnership offers the same legal rights as marriage, and then says (incorrectly) that this means that there is no need to 'redefine marriage' (as it describes the proposals). And then:

"It's not discriminatory to support traditional marriage. Same-sex couples may choose to have a civil partnership but no one has the right to redefine marriage for the rest of us."

Well, it is discriminatory to support traditional marriage if that means restricting it to heterosexual couples, just as it was discriminatory for some US States to bar inter-racial couples from marrying before 1967. Discrimination itself means only observing (and acting upon) a difference between two cases, but discrimination is prima facie wrongful when it is illegitimate to use that difference as a basis for the distinction. Our law identifies certain differences which are thought illegitimate (described in s 4 of the Equality Act 2010 as the 'protected characteristics'), including sex, race and sexual orientation. So the position that C4M advocates is undeniably discriminatory. In principle, that discrimination could be justified (and therefore be legitimate), but, for reasons discussed here and on my previous post, it is not, in fact, justified. (Put shortly, the discrimination is not a legitimate way of pursuing a legitimate aim - see, by analogy, the reasoning in Ghaidan v Godin-Mendoza.)

As for the second sentence, I'm back to this point: what difference does it make to one couple's marriage that another couple is also married? The effect of opening up marriage to same-sex couples is liberal and facilitative: it enables two people to choose to marry one another, but it does not compel anyone to do anything; and, at the same time, there are no consequences of this decision for anyone else's relationships (or, at least, no consequences not already arising from civil partnerships). Heterosexual couples are totally unaffected by whether homosexual couples marry or not. The claim that marriage should be restricted to heterosexual couples, on the other hand, is an attempt to impose one group's view on the way that other people can live their lives. I find more than a little irony in the fact that C4M is trying to lay claim to the "other people shouldn't impose their views on us" argument.

Debating the issues:

Finally, I want to say a brief word about a slightly odd remark on the 'about us' page of the C4M website. The authors call for a civilised debate (which I certainly agree with), and then say that they "will highlight any intimidation or intolerance shown to supporters of traditional marriage". I'm not sure what this means. I hope that the authors are simply trying to avoid unpleasantness, but the comment might be taken to imply that those of us who disagree with their views might find ourselves accused of intimidation or intolerance (again, some irony there perhaps). There was a little hint of this in some heckling from the audience at the British Academy talk, implying that disagreeing with the views of, in that instance, Ms McDonagh was, in itself, a form of intimidation. I would certainly be pleased to know that those who oppose opening marriage to same-sex couples consider this post to fall well outside intimidation or intolerance, even though I take issue with more or less everything that they say.

London Mayoral Election 2012

I don't live in London, so I don't get to vote in the mayoral election next month. Despite that, I'm affected by the result of that election, as are a great many people who live outside the capital. I guess I visit London 2 or 3 times a month, on average, and the policy areas under the Mayor's control have a direct impact on me, just as they do on Londoners and all those who visit the city. So that's my justification for writing about the election here.

I will 'fess up and say that, if I had a vote on May 3rd, I would be voting for Ken Livingstone, so don't expect a neutral post here. Ken is the voice of real London, and he's been dedicated to improving the city for 30 years. There's no one running for election that I would rather see in City Hall.

Anyway, I've just watched Ken's party election broadcast. If you haven't seen it, take a look - it's not like most party propoganda, and is actually kind of moving. It gives some idea of why he cares about being Mayor. There's a bit of ego there (does anyone really run for office without having a bit of ego?), but I really think that it's mainly that he cares about London and the people who live in it.

First, in case you don't know, here's what the Mayor's Office does with its £14bn budget:

• controls the budget for the Met Police, Transport for London, the London Development Agency, the London Fire Brigade and the Greater London Authority
• appoints the members and chairs of the Boards of all these important organisation
• sets out plans and policies for London covering transport, planning and development, housing, economic development and regeneration, culture, health inequalities, and a range of environmental issues including climate change, biodiversity, ambient noise, waste disposal and air quality

When Ken was Mayor 10 years ago, the headline policies that he introduced were the congestion charge in central London, and the Oyster Card system of paying public transport fares. This time around, in the age of cuts and austerity, it's all about making life a little easier for normal people. This is what Labour policies are supposed to do - focus on ordinary and less well-off people, and use the powers of the state to make their lives better

Ken's headline policy for 2012 is a cut in public transport fares, which have risen above inflation every year since Boris Johnson became Mayor. Bus fares in the city have risen 50% in the last 4 years. It's now £1.35, up from 90p in 2008. So, 45p more - who cares? Well, it adds up to about £220 more per year to your commute if you take one bus to work and one bus home - and lots of people have to take two different buses, meaning £440 a year. I think I'd care about that. Ken's policy commitment - over which he pledges to resign if it isn't done by 7 October 2012 - is a 7% fare cut. That takes bus fares down to £1.25.

This is just an example of the difference that it will make having Ken as Mayor, rather than Boris. But I think it's a good example, because it really illustrates the focus of the two candidates' policies. Cutting public transport costs helps the many, not the few. The rich minority don't care what the bus fare is - they rarely use buses, and when they do the cost is irrelevant. But the ordinary and less well-off majority really are affected by it, and it does matter. These things that look so small to the rich are the things that make the difference between life being manageable or not for many people.

That's why this election really is about a vision of how London should be run. Do Londoners believe in trickle-down economics, whereby making the rich richer and more comfortable ends up helping ordinary people? Have we seen much evidence of that over the last few years? Do we see the money that bankers continue to make in their salaries and automatically-received 'bonuses' flowing down to the rest of us? Or do we see it being invested in property that no one else can afford, and stashed off-shore in tax-free savings?

Boris Johnson's part-time hands-off approach to running one of the world's major cities isn't working, and ordinary people are bearing the brunt of his policies that help the privileged few. Fun as it may be to watch Boris's buffoonery and wonder just how embarrassing he's going to be today, we deserve better. Ken Livingstone is not perfect, and there are plenty of people who find plenty to dislike about him. But he is committed to London, and I think he'll deliver practical improvements which will make most people better off, economically and socially.

Vote Ken on 3 May.

Gay Marriage? Nah, Just Regular Marriage for Everyone Please

Eddie Izzard once said that there are basically three categories of people when it comes to attitudes to sexual orientation or sexual identity. At one of the spectrum, about 10% of people are really enthusiastic, very pro-gay, pro-transvestite and so on. At the other end, about 10% of people are thoroughly against homosexuality, transvestitism, etc. And then in the middle, about 80% of people really just don’t have any opinion. They are busy getting on with their own lives and whether another person is straight or gay or transsexual or intersexual or asexual doesn’t matter to them.

My guess is that Hugo Rifkind is in the 80%, so it’s great that he’s written a long comment article in The Times today supporting gay marriage and dismissing the so-called arguments against it. His explanation that the view of some that “marriage is a thing between a man and a woman” is not an argument but a description of the status quo is disarmingly straightforward. And he’s right – it is exactly akin to the view before suffrage that “voting is a thing done by men”. It is a description of a prejudiced status quo, and in fact identifies the very problem under discussion. Voting was a thing done by men, but there was no objective justification for that fact. Marriage is a thing between a man and a woman, but there is no objective justification for that fact either.

It is sometimes said that marriage is a religious ceremony and that legalising same-sex marriages would ‘overrule the bible and tradition’. Well, it will overturn tradition, but that is the whole point. As for overruling the bible, it is important to remember that the UK has had non-religious marriage ceremonies for almost 200 years – the law was changed to allow civil marriage ceremonies in 1836. It is simply not realistic to say that religion and marriage are inextricably linked. Those of religious faith are free to think that having a religious ceremony as part of their marriage ‘raises [marriage] to a new level’ – but they are not free to say that anyone else’s marriage is inferior, nor to dictate who is allowed to marry. That is for society as a whole to decide together, not for one group to dictate to the others.

Now, it might be said in response that allowing gay marriage does allow one group (those in favour of gay marriage) to dictate to others (those against gay marriage). However, this argument just won’t do. If you are against something, don’t do it. Don't like gay marriage? Then don’t marry someone of the same sex! But don’t impose your personal views about it on the way that other people can live their lives. The only justification for doing so is clear and objective harm being caused to people other than those engaged in the action in question, and there is simply no evidence that gay marriage harms anyone. Not the couples themselves, and not the children of those couples.

In fact, since marriage is aimed at promoting stable relationships, it could even be said that preventing gay couples from marrying is harmful to society. Baroness Hale of Richmond, a Justice of the Supreme Court of the United Kingdom, put the point beautifully in her judgment in a 2004 case called Ghaidan v Godin-Mendoza, paragraph 143:

“But what could be the legitimate aim of singling out heterosexual couples for more favourable treatment than homosexual couples? It cannot be the protection of the traditional family. The traditional family is not protected by granting it a benefit which is denied to people who cannot or will not become a traditional family. What is really meant by the ‘protection’ of the traditional family is the encouragement of people to form traditional families and the discouragement of people from forming others. There are many reasons why it might be legitimate to encourage people to marry and to discourage them from living together without marrying. ...  But ... it is difficult to see how heterosexuals will be encouraged to form and maintain such marriage-like relationships by the knowledge that the equivalent benefit is being denied to homosexuals. The distinction between heterosexual and homosexual couples might be aimed at discouraging homosexual relationships generally. But that cannot now be regarded as a legitimate aim. It is inconsistent with the right to respect for private life accorded to ‘everyone’, including homosexuals, by Art 8 [of the European Convention on Human Rights] since Dudgeon v United Kingdom  (1981) 3 EHRR 40. If it is not legitimate to discourage homosexual relationships, it cannot be legitimate to discourage stable, committed, marriage-like homosexual relationships of the sort which qualify the survivor to succeed to the home. Society wants its intimate relationships, particularly but not only if there are children involved, to be stable, responsible and secure. It is the transient, irresponsible and insecure relationships which cause us so much concern.”

So, if the aim is to promote stable relationships rather than transient ones, is it enough of an answer to this argument to say that same-sex couples in the UK can enter into the legally-recognised status of being civil partners with one another, which grants them legal rights almost identical to those of marriage? Well, no. Civil partnership was a wonderful idea of the Blair government, allowing important legal rights to be granted to gay couples without the inevitable problems that gay marriage legislation would have faced from some members of the House of Lords, and Blair deserves much gratitude for taking that step. But it is just a step, because civil partnership is discriminatory.

There are only two possibilities. One is that marriage and civil partnership are legally different from one another, in which case the discrimination is obvious. More likely, the Civil Partnership Act succeeded in creating an institution which has all the same rights as marriage, but is not marriage. But that too is discriminatory, because the argument that two parallel institutions can be both separate and equal was exploded by the United States Supreme Court in Brown v Board of Education of Topeka nearly 60 years ago. “Separate but equal” is a contradiction in terms – if it is separate, it is inherently not equal.

When it comes down to it, though, this isn’t really about gay marriage. Gay people don’t want "gay marriage", just regular marriage that happens to involve two people of the same sex. It’s the same with everything. Gay people don’t “gay kiss”, they just kiss.  Gay people don’t have “gay sex”, they just have sex. Life isn’t about gay or straight, and marriage isn’t about gay or straight. It's about love, and it's time.