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review
Same sex marriage and civil partnerships: the new law
Mark Harper, S Chelvan, Martin Downs, Katharine Landells and Gerald Wilson
Jordan Publishing, ISBN 978 1 84661 859 8, 571pp, May 2014, £60.
This is an extremely timely and very interesting book whose depth and breadth goes way beyond its title. Written accessibly, well researched and with really excellent historical content, interesting political context setting and very informative detail and analysis of the law, it very clearly addresses the statute law and case-law in this area.
As the book rightly states, it is impossible to cover same sex marriage and civil partnerships without looking at all of the other complex and interlinked issues, and the book goes in depth – with chapters on registrations and conversions to civil partnership, divorce and dissolution, religious ceremonies, financial consequences of termination, parents and children, immigration and asylum (by the wonderful S Chelvan) incapacity and death as well as a consideration of the underpinning human rights issues involved (see also page 10 of this issue). There is room, too, for a European comparison to be drawn between the different states – for example, the low-key introduction of civil partnership legislation in the UK as compared with the effusive announcement by the Spanish Prime Minister whose speech to the Cortes (the Spanish parliament) in support of the country’s same-sex marriage legislation is quoted in full:
Today the Spanish society answers to a group of people, who during many years have been humiliated, whose rights have been ignored, whose dignity has been offended, their identity denied, and their liberty oppressed … Their victory makes all of us (even those who oppose the law) better people, it makes our society better.
This is a far cry from the comments of Lord Arran at the time of the introduction of the Sexual Offences Act 1967, which for the first time decriminalised consensual sex between men:
Any form of ostentatious [gay] behaviour; now or in the future, any form of public flaunting, would be utterly distasteful and would, I believe, make the sponsors of the bill regret that they have done what they have done. Homosexuals must continue to remember that while there may be nothing bad in being a homosexual, there is certainly nothing good.
It is this kind of historical detail combined with social commentary which makes the book so entertaining and readable. It also illustrates just how much opinion and law has progressed.
It is a record of a quiet, and sometimes not so quiet, revolution charting the development of the law, first of all against gay men and lesbians, through decriminalisation, challenges in the European Convention on Human Rights, and a footnote stating that the development and forward progress of the law in relation to the lesbian, gay, bisexual and transgender (LGBT) community was being set back 18 years by the 1979 election of an ‘unsympathetic Conservative Government’, which introduced the prohibition on the ‘promotion of homosexuality’ in section 28 of the Local Government Act 1988. This is in sharp contrast with the rest of Europe where decriminalisation was being achieved, paving the way for an equalisation of the age of consent and ultimately marriage rights. It is a timely reminder that whereas the government and law-makers in the UK have condemned the passing of the similar legislation in Russia in 2013, it is not that long ago that section 28 was repealed (ie, in 2003).
Tribute is paid along the way both to gay and lesbian activists who mobilised and lobbied for change, and to the boundary-pushing judiciary. There were many interesting judicial debates considered and discussed, for example, Baroness Hale and her judgment in Re G (children) (residence: same sex partners) [2006] UKHL 43, 26 July 2006, in which she considered ‘what makes a parent’ and provides an analysis of genetic, gestational and social/psychological parenting.
Chapter 10 goes into an excellent discussion about conflicting human rights, religious freedoms, businesses and equality legislation. Baroness Hale, again, is discussed along with the case of Bull and another v Hall and another [2013] UKSC 73, 27 November 2013 in a judgment that stressed the need for a very high standard of proof, or ‘very weighty reasons’ to justify discrimination on the grounds of sexual orientation (para 53).
This book is a valuable handbook for lawyers working closely with the LGBT community. It is also an engaging social history of the evolution of human rights in this area of law, and the entertaining and accessible style with which is it written makes it a must not only for lawyers working in this field, but also for all human rights and LGBT organisations.