Kent Law School Lecturer Máiréad Enright’s recent post on Human Rights Ireland is rightly getting a lot of attention.
Post authored by Nicola Barker Wed 6 Feb:
It would be easy to dismiss Sir Roger Gale’s ‘Alice in Wonderland’ speech in Parliament yesterday (http://www.itv.com/news/meridian/update/2013-02-05/south-thanet-mp-is-fierce-critic-of-gay-marriage/) as that of a man who is so homophobic that he would rather abolish the legal institution of marriage entirely than allow same-sex marriage. After describing the idea of same-sex marriage as ‘Alice in Wonderland territory – Orwellian almost’, he goes on to say:
‘…if the Government are serious about this measure, they should withdraw the Bill, abolish the Civil Partnership Act 2004, abolish civil marriage and create a civil union Bill that applies to all people, irrespective of their sexuality or relationship. That means that brothers and brothers, sisters and sisters and brothers and sisters would be included as well. That would be a way forward. This is not.’
However, he has unwittingly made an argument that represents the views of some members of the lesbian and gay communities who have not taken part in the mainstream debates on same-sex marriage. The debate has largely been between conservatives: those who support same-sex marriage because they are conservatives and those who oppose same-sex marriage because they are conservatives. There is little intervention from those who are not conservatives, who oppose same-sex marriage because marriage is conservative. Yet this argument has been made within the lesbian and gay communities for decades. As far back as 1971 the manifesto of the Gay Liberation Front positions marriage as at the centre of the patriarchal family and the very root of the oppression of gay people. Marriage remains at the root of the oppression of alternative families and of women within ‘traditional’ families. The absence of legal regulation of same-sex families led to much more interesting and radical family forms within the gay and lesbian communities: friendship networks creating families of choice, and by necessity, resolving family breakdown outside of the court structure (something that the current government are keen to encourage through the withdrawal of legal aid for all but a few family law issues).
Sir Roger Gale’s endorsement of the view that it might be better to abolish civil marriage than recognise same-sex marriage is not new to those who are in fact ‘militant homosexuals’, as Sir Roger wrongly described gay marriage advocates on his website last year (http://www.rogergale.com/content_manager/page.php?ID=103551&dbc=5d891f7e77bd7e9af103b108f88afc7f). It is ironic that someone on the right wing of the Conservative Party is endorsing a proposal that has been made by several feminist academic family lawyers, including myself. Our reasons for proposing the abolition of the legal institution of marriage (‘civil marriage’) could not be more different from those of Sir Roger Gale, and though a ‘civil union’ that is open to all, including siblings, is an interesting proposal, it lacks imagination. This sounds too much like a re-run of the various wrecking amendments that were attached to the Civil Partnership Bill by some of his Conservative colleagues and removed before the Bill passed in 2004. That series of wrecking amendments would have allowed siblings and others too closely related for marriage to enter into a civil partnership if they meet certain conditions. This was unworkable for a number of reasons, not least that it would have required a divorce-like process for siblings who wanted to marry or civilly partner someone they love; and it would have been limited to two siblings. What about a family of three or more siblings? Which sibling would have been excluded from the tax breaks of civil partnership?
Instead, I would recommend that Sir Roger Gale endorse the approach taken by the Law Commission of Canada in 2001. They proposed that the legal rights and responsibilities of marriage be rationalised through asking the following four questions of each individual legal right/responsibility. To paraphrase their Beyond Conjugality report:
1. Are the objectives of the law still legitimate? If not, it should be repealed or fundamentally revised.
2. If a law is pursuing a legitimate objective, are relationships relevant to the objective in hand? If not, then the law should be revised to allocate the rights and responsibilities on an individual basis.
3. Assuming that relationships are relevant, could the law allow individuals to decide which of their close personal relationships should be subject to the law?
4. If relationships do matter, and self-definition of relevant relationships is not a feasible policy option, is there a better way for the government to include relationships?
From a conservative point of view, this model means that the state would not ‘endorse’ gay marriage, in fact marriage would no longer exist as a legal institution but rather, as Sir Roger Gale prefers, left to the various religious bodies to celebrate as they wish. From a feminist point of view, the deeply problematic legal institution of marriage is abolished and replaced with a more rational means of distributing various legal rights and responsibilities based on the objectives that the law is trying to achieve and better directed towards those individuals or relationships that need them.
The Canadian Parliament did not take up these proposals but perhaps Sir Roger Gale would be interested to explore them further in the UK. It would be an unlikely coalition but it seems that I may have more in common with a Conservative MP than one might expect.
Dr Nicola Barker is senior lecturer at Kent Law School and author of Not the Marrying Kind: A Feminist Critique of Same-Sex Marriage (Palgrave, 2012).
Reproduced from Davina Cooper’s guest contribution to the Oxford Human Rights Hub
How do equality norms look when visualised through the lens of a social practice? In this post, Dr Cooper challenges existing conceptions of these norms using the example of public nudism.
Brian Coldin was prosecuted in 2011 for using a restaurant drive-thru in Ontario without clothes. This year, Britain’s “naked rambler”, Stephen Gough, was back in court charged with breach of the peace; Gough has spent much of the past six years jailed for being naked in public (including in court). Attempts to live naked clearly elicit a huge range of sanctions, including assault, imprisonment, harassment, stigmatisation and ridicule. While the divide between nudists and “textiles” may be far less structurally forceful than many other relations of inequality, appearing naked or dressed in the global north is not an equal choice. But what here is an “equal” choice? What does nudist equality entail?
Whether it involves beach or woodland walking, streaking, performance art, protests, or carnival exuberance, public nudism highlights the range of meanings equality can bear. These range from the desire for equal human dignity, to an equal allocation of ( separate) spaces, to an equality anchored in the dissolution of difference – where being naked or dressed proves an insignificant distinction. But we can also “read” practices, such as public nudism, as incitements to think more radically about equality – not simply who or what gets made equal – but what equality norms themselves entail.
Typically, academic approaches to equality focus on governmental programmes or social movement agendas, where equality is explicitly advocated or operationalized. Approaching equality through a social practice, like public nudism, by contrast, where equality may not be demanded or even uttered demands a lot of interpretive work. But it also opens up new ways of thinking about equality. For drawing on unexpected sites underscores something key and often forgotten: that equality – as a cluster of organising norms regarding how life should be lived and polities governed – is intensely situated. Approaching equality in this way suggests something different to liberal models where equality functions as an allocation framework drawn up at some remove from the world to which it is applied. Treating equality as socially enmeshed, by contrast, highlights its machinic, sponge-like character; how equality “hoovers up” other norms. Public nudism commonly expresses an equality saturated with rules and expectations about barriers, contagion and sex-aversion – and organised nudists, however equal they feel, dress to cook and dance, keep their vision levelled at other people’s faces, and always put something down before sitting. But equality doesn’t only absorb other norms, it also imparts them. Equality means more than simple parity. Being recognised as unequal, for instance, depends on being already found deserving; and equality – perhaps because it’s normative – suggests an orderly quality, a sense of propriety and of what’s proper.
Recognising equality’s entanglement with other norms challenges its idealisation. It also highlights ways equality can change. Typically, change means the development of new claims in relation to equality’s subjects, practices and scope. Nudist equality, for instance, might require cities’ redesign (it’s hard to imagine nakedness as an equal choice in many current ones) – a redesign oriented to shelter, sensation, and texture that could also benefit others (children and homeless adults, for example). But, if undoing inequality means (or, as in the cities example, involves) undoing distinctions – from the nudist/ textile divide, to distinctions of gender, sexuality, class or race – challenging their existence (or at least the power they bear), does this suggest a vision of equality in which the conventional assumptions of separation, equivalence, and balance have been displaced? Today, in the global north, we picture equality’s differences side-by-side (toy soldiers in a row; segments in a pie chart). Approaching equality from unexpected practices and places asks what should happen to these “parts”. Can equality as a normative machine absorb unruliness, sensation, transformation and touch; should it? And what would equality’s promotion look like if it did?
Posted on behalf of Prof Davina Cooper
Davina Cooper’s profile
Reproduced from Sebastian Payne’s original piece in the UK Constitutional Law Group blog
In a recent Whitehall farce the deputy Prime Minister Nicholas Clegg urgently recalled an advance copy of a speech circulated to the media so that it could be amended to delete words that were causing a stir. The extract in question was the following, “Continued trouble in the economy gives the bigots a stick to beat us with, as they demand we ‘postpone’ the equalities agenda in order to deal with ‘the things people really care about.’ As if pursuing greater equality and fixing the economy simply cannot happen at once.” (See The Guardian, 12.09.2012, p11) The equality issue here was legislating to allow for same-sex marriage. The offending words, or word, was the description of the opponents of such a law as ‘bigots’. Act 1, scene 3 of the farce has the deputy Prime Minister’s spokesman saying, “This was not something the deputy prime minister has said. It was not something he was ever going to say.”
Whether the opponents of same-sex marriage are bigots or not depends upon the reasons for their objections. What attracted my interest in this incident was the observation, “As if pursuing greater equality and fixing the economy simply cannot happen at once.” Mr Clegg is correct in identifying this particular objection as a false dichotomy. After all, different government ministers deal with the economy and law reform. Management of the economy is not primarily dependent upon legislative activity requiring a monopoly of the legislative timetable. There is also a distinct difference between objections to reform that focus on the substance of the proposals and objections based on timing. My own experience of arguing in favour of a written constitution is that objections of the latter type are more common than those based on substance. In discussion with one famous constitutional lawyer, her comment on such a reform was, “It’s not going to happen and that is that.” In a panel discussion in front of an international audience, my advocacy of a written constitution for the UK was responded to by an eminent constitutional lawyer with the words, “I do not see a constitutional moment”.
Reading this summer Eric Hobsbawm’s autobiography Interesting Times (Abacus, 2003) I was amused to come across the following passage about Cambridge University as he first encountered it as an undergraduate in the 1930’s and subsequently as a don,
“The Cambridge past, like the ceremonial fancy-dress past of British public life, was not, of course, a chronological succession of time, but a synchronic jumble of its surviving relics. The glory and continuity of seven centuries were supposed to inspire us, to assure us of our superiority and to warn us against the temptations of ill considered change…The main contribution of Cambridge to political theory and practice, as described brilliantly by the classicist F.M.Cornford in his little squib Microcosmographica Academica (1908) was ‘the principle of unripe time’. Whatever anyone proposed, the time for doing it was not yet ripe. It was powerfully reinforced by the principle of “the entering wedge”.” (page 103)
It is interesting to reflect on the dynamics of constitutional change especially so in the UK where change is often dragged out across the centuries. We appear to have rationalised and institutionalised the snail’s pace of reform by calling it ‘evolution’.
Two striking cases of failure to deliver constitutional reform are in relation to the House of Lords and on war powers. In both cases there has been cross party agreement in recent years that reform is required. With Lords reform there has been a failure to find an acceptable model of reform which those who want no change at all have been able to exploit. This failure has been a product, I would suggest, of offering proposals that would change the composition and basis for membership of the upper chamber but have failed to address the broader systemic consequences of such change. A case of more work being needed rather than less. With reform of the war powers there have been three substantial select committee reports on this since 2004 and a shorter though still significant select committee report in May last year from the Political and Constitutional Reform Committee. Since the May 2011 Report there have been two further very short reports (9th and 12th Reports of Session 2010-12) from the same committee urging the government to act. Notwithstanding the Foreign Secretary’s commitment given on the 21st March 2011 in the House of Commons to, “enshrine in law for the future the necessity of consulting Parliament on military action” the government’s resolve to do so appears to have evaporated. The 12th Report, whilst welcoming the inclusion in the revised Cabinet Manual of a reference to a convention to consult Parliament, expresses dismay at the overall content of the letter received from the Minister for Political and Constitutional Reform, in particular the following passage,
“As the Government has already committed to observing the convention, the case for urgency has not been established, and I do not therefore believe it would be appropriate to set out a fixed timetable for progress on this matter. I understand that this will not satisfy the Committee’s concerns.”
Major constitutional change does occur in the UK so the question remains why radical change sometimes happens and in other instances proceeds in dribs and drabs or not at all. If there are no hard and fast laws of the social world that determine what will be the precursors to constitutional change presumably there are certain factors likely to lead to it. Revolution is one such factor but arguably the very nature of revolution is constitutional change, which pushes the causal question one step back rather than answering it. In relatively settled societies such as the UK constitutional change appears to result from long standing demands or grievances which have emerged as a coherent programme and have coincided with the political opportunity to implement them. The Labour government of 1945 is one example and, notwithstanding criticisms of the coherence of the programme, the 1997 Labour government is another. The Belfast Agreement is another interesting example of change through mediation post-conflict, a solution achieved through the relevant parties acknowledging stale-mate. What appears to be the problem with the present Coalition government’s ambitions for change is that there are three groups involved, the left and right wings of the Conservative party and the Liberal Democrats. They are not agreed between them as to what is desirable and being a more fragile coalition than was at first apparent, there is not the political authority to impose the constitutional change that was apparently part of the government’s programme. Advance, centre stage, the ‘unripe moment’ accompanied by the ‘entering wedge’.
Posted on behalf of Sebastian Payne, Lecturer in Law, Kent Law School
The Foreign Office’s assertion that under the Diplomatic and Consular Premises Act it could remove the Ecuadorian embassy’s diplomatic status in order to arrest Julian Assange and extradite him to Sweden sits uncomfortably with the International Court of Justice’s judgment in the Tehran Hostages case (1980).
Although the Court observed that under the Vienna Convention on Diplomatic Relations the premises of a diplomatic mission must not be used in any manner incompatible with the mission’s lawful functions, it emphasised that “the rules of diplomatic law constitute a self-contained regime which, on the one hand, lays down the receiving State’s obligations regarding the facilities, privileges and immunities to be accorded to diplomatic missions and, on the other, foresees their possible abuse by members of the mission and specifies the means at the disposal of the receiving State to counter any such abuse”. After declaring that “the principle of the inviolability of the premises of diplomatic missions is one of the very foundations of this long-established regime”, the Court noted that a receiving State can ultimately, at its discretion, break off diplomatic relations with a sending State and call for the immediate closure of the offending mission. But it stressed that even in the case of armed conflict or a breach in diplomatic relations the inviolability of the mission’s premises must be respected. And it ended by reiterating that there is “no more fundamental prerequisite for the conduct of relations between States than the inviolability of diplomatic envoys and embassies”.
Ecuador and the UK are both parties to the Optional Protocol to the Vienna Convention on Diplomatic Relations, concerning the Compulsory Settlement of Disputes. This provides that disputes arising out of the interpretation or application of the Convention lie within the ICJ’s compulsory jurisdiction and may be brought before the Court on application by any party to the dispute. It would be in the interests of both States and the rule of law for this to happen. In particular, the ICJ should be asked whether withdrawing acceptance of the embassy’s diplomatic status in the present circumstances would – as the Act requires – be permissible under international law.
Posted on behalf of the post’s author, Nick Grief, Professor of International Law
The Dutch state has been held responsible by the Court of Appeal in the Netherlands for three Srebrenica deaths – see http://www.bbc.co.uk/news/world-europe-14026218
Comment on the decision by Francesco Messineo, Lecturer in Law, Kent Law School:
The decision by the Court of Appeal in the Netherlands on the responsibility of the Dutch state for the acts of Dutch peacekeepers during the Srebrenica genocide in 1995 is a historic and welcome one. It affirms the principle that states contributing troops to UN operations cannot hide behind the United Nations when their troops violate international human rights law or the laws of war. As international lawyers have said for a long time, having one’s soldiers wear a blue helmet does not automatically relieve a state of its international responsibility: so long as a state maintains control over its troops, it is still responsible for all their actions, in parallel with the United Nations as the case may be. There are no easy loopholes for states, nor for the UN – human rights must be respected at all times by everyone.
Although it is not the first time that a domestic court reaches this conclusion (the UK House of Lords in 1969 had reached similar conclusions in the Nissan case), it is fundamental that this rule has been reaffirmed today by senior Dutch judges, because the European Court of Human Rights in Strasbourg had recently undermined this important principle in a series of cases (Behrami in 2007, Stephens in 2008, Blagojević in 2009). Hopefully the European Court will listen and change its misguided jurisprudence on this point.
Posted on behalf of Francesco Messineo.
Guardian piece Tuesday 7 Sept by Stewart Motha (Senior Lecturer in Law at the Kent Law School)
Note on Pakistan floods and relief effort, from Kate Bedford (KLS Senior Lecturer):
In case folks may be interested in learning more about – and maybe supporting – some organisations working on this, I thought I’d share some links I’ve been sent by friends recently:
Action for a progressive Pakistan (http://progpak.wordpress.com/) has details of a local organisation in Sindh
The Hirrak Development organization is doing some emergency relief work – it isn’t on their website (but here it is for what they do generally: http://www.hirrak.org/), but I have details I can pass on (including donation details) so email me off-list.