How to marry your own daughter

Now that marriage is a notarial contract of cohabitation recogized across the EU, it is time to look at the other out-moded and frankly offensive restrictions on whom one can register as a partner. It is ludicrous that one can register someone else's son or daughter and thereby pass one's wealth free of inheritance tax to them, but not your own child. If two people love each other, why shouldn't they get married?

This does not mean incest is going to be legalized. Sex between certain categories of blood relative remains a crime  under s.64 and 65 of the Sexual Offences Act 2003.   It may be this needs to be revised too but for the moment, let that obtain.   Sex is no longer a required or even assumed ingredient of what it means to have a notarial contract of cohabitation, so that need not detain us.  Neither is it strictly necessary to cohabit.  The declared status still stands, even if you do not spend much time in the same country as each other.

The concern here is with grown children who take on the responsibilities of a partner and yet are shut out from any of the benefits of that status.

It is unfair for example, that an aging gay son who has spent many years looking after his mother should be obliged to pay tax (if the estate exceeds the IHT threshold) just because he has stepped in to the role that his late father might have otherwise performed.   He can register a contract with  the old man next door, he could always have married the old lady next door,  he could become the spouse of the son or daughter next door, but not be his own dear old Mum's recognized partner, although he already is in every relevant sense.  Where is the justice in that?

Or, consider aging siblings who have to make complicated wills, living together but never being able to take advantage of the same tax arrangements as any other more distantly related couples. Why can't you marry your brother if you have ended up as his carer?

At the moment you cannot register as the partner of more than one person at a time, but since the Netherlands leads the way in allowing notarial contracts of cohabitation to apply to to multiple signatories, that could also change.  The old bigamy laws must give way to new modes of inheritance whereby a parent can register as the partner of several children, friends, relatives etc. Why can't you have more than one partner?  You can in commercial law.

Alternatively, abolish inheritance tax as it is incompatible with the primacy of the notarial contract of partnership. 

 The Telegraph is also interested in this,. They look at in the light of the current legal situation  but cannot face the logic of marrying one's own children. 

If two men can get married, it makes no difference which two men it is, or if it is more than two of them.

The Death Penalty

There is a parallel between the 1965 vote on the abolition of the death penalty and the 2013 vote on same sex marriage. 

The vote on same-sex marriage went 366 in favour to 161 against. That is, approximately two thirds of the House supported the government. The larger part of the one-third opposition was not the Opposition at all; it was the government's own party.  In a free vote, the government only got its bill through by doing deals with the party which it nominally opposes.

 In 1965 the Labour MP Sydney Silverman, who had committed himself to the cause of abolition for more than 20 years, introduced a private member's bill to suspend the death penalty, which was passed on a free vote in the House of Commons by 200 votes to 98. The bill was subsequently passed by the House of Lords by 204 votes to 104.

Source: wiki, which goes on to detail the exclusions and parliamentary technique used to present abolition as suspension.  The split, again, was a two-thirds for change, one-third for the status quo.  Note also in subsequent developments that there was a deadline; the abolition had to be enacted in English law before a European-set deadline. If it had not been done then the authority of European law would have become much more visible to the voting public.  As with same sex marriage, the impetus is not from within Britain but to disguise the fact that the real power comes from outside it. 

Despite the parliamentary feeling that the argument about the death penalty is done and dusted, no politician would dare put the matter before the public.  The public is much less convinced that there is any point in keeping Ian Huntley breathing, and it is about to ask the same question of David McGreavy who has failed in his bid for anonymity.  Despite what some people claim, the law does not lead public opinion as much as they would like, nor is it clear that we get good law when it tries to do so.

English law jumps before it is pushed in order to disguise that hand of the pusher.

Bigamy and Pervez Choudhry

Obviously I don't want to waste much sympathy on ex-councillor Pervez Choudhry of Slough but his plea of guilty to bigamy may eventually be challenged on several matters of fact.

Introduction
Mr Choudhry is said to be preparing an appeal although he pleaded guilty to bigamy when advised that his second wedding was a marriage for the purposes of criminal law.  This would be a chance for the Court of Appeal to revisit this antique area of law which has public policy implications. The police and CPS and UKBA (who sometimes come across it in connection with other immigration crimes)  need a bigamy charging checklist to work from but the CPS website lists only cases.  

The reporting of the current case has been cloudy and the latest summaries don't help much.

Judge Ian Grainger told him:
‘ Bigamy is in no sense a private matter. The rule . . . is a simple one – one spouse at a time. ‘Whatever cultural roots that rule may have, there’s practical wisdom in that rule.’

Practical wisdom it may be, but the judge is wrong about it being a rule. Polygamy is recognised in Pakistan so contracting a marriage there is not barred merely because a marriage exists elsewhere. While it can't be contracted here, it is recognised here - much to the annoyance of people who think you should not be able to claim benefits for multiple wives .  

This area of law is more complicated than it looks. 

The BBC pointed out  as far back as 2000 that one of the complaints which immigrant women have is finding that their husbands can contract second marriages 'back home' and there is nothing they can do about it.

The police say there is little they can do. Colin Cramphorn from the Association of Chief Police Officers says he finds cases like Sameera's disturbing, but he believes that politicians need to clarify the law.

"Clearly those communities that have a tradition which allows polygamous marriage have a point of view and they are keen to have that point of view taken into account and recognised as part of a multi-cultural society," says Mr Cramphorn.

"But of course if the law is equivocal, as it currently is, then that prevents all of us achieving the kind of clarity that would no doubt be helpful in the longer term."

The law produces inconsistent results in that Pervez Choudhry could be charged with bigamy whereas other men doing exactly the same thing could not, but it is not as equivocal as Colin Cramphorn claimed. There is law under there, albeit ancient and groaning under the strain of changes.

The situation in Pakistan is less clear.  A quick google of the searches going on recently shows that everyone else is also hoping the Wiki on marriage law in Pakistan will be updated. At time of writing it looks like the Nikah, the religious part of the wedding in Muslim-majority Pakistan, is separate from the civil registration of a marriage, which is approximately the same as here but the religious marriage may have a legal status in Islam. The civil registration should be a matter of discoverable fact; the dispute, however, hinges on whether the nikah should be regarded as a valid marriage or a personal contract here.

It doesn't help that in this example Choudhry kept changing his story as to which of his weddings didn't count for legal purposes here and obviously felt guilty. Faced with the beautiful GP, Dr Zabina Shahian, who appeared to be crazy about him...well, who wouldn't have been flattered and suddenly seen themselves as Mr Rochester in their own feverish Bronte romance?

The following attempts to sort out the poorly-reported facts, to point out what needs to be verified, and explain how we got in this muddle.


Legal background 
The first thing to note is that bigamy applies differentially to nationals and non-nationals.  The lead case is old:  Reg v Topping 1856. This was decided based on earlier statutes which were consolidated slightly later in the Offences Against The Person Act 1861 (OAPA1861), which is why the statute references are younger than the lead case.  

Mr Topping had two wives, one in Scotland, one in England.  It was held to be bigamy. In the Age of Empire  the law on bigamy traveled with the British subject, binding him where ever he was and making that law available to the local judiciary to try a British citizen. He couldn't appeal to local law. Once he was married, that's it, he was married and couldn't contract a second elsewhere without the end of the first one.  We could then get on to arguing about whether it was a marriage for the purposes of the act, or who was a subject of Her Majesty, or what constitutes evidence of the end of a marriage but the main thing here is:  s.57 of the OAPA still applies to subjects of Her Majesty.

The  Offences Against the Person Act 1861 

Section 57 states: (my emphasis)

57 Bigamy. Offence may be dealt with where offender shall be apprehended. Not to extend to second marriages, &c. herein stated.


Whosoever, being married, shall marry any other person during the life of the former husband or wife, whether the second marriage shall have taken place in England or Ireland or elsewhere, shall be guilty 

The act clarifies that non-nationals are not bound by this act, which is just as well as nobody wants to arrest visiting polygamous royalty - although it will apply in certain circumstances if they contract a marriage here.

Provided,

that nothing in this section contained shall extend to any second marriage contracted elsewhere than in England and Ireland by any other than a subject of Her Majesty,

As outlined in the sentencing appeal by Philip Stark in 2007,  Mr Stark  - a US citizen - was prosecuted for bigamy here.  Mr Stark had married his first wife in Southend and begun divorce proceedings some years later. He reached the nisi stage but did not finalise the divorce.  He then married his second wife in Basingstoke.  This meant that the first marriage had not been properly ended and he could be prosecuted for bigamy, to which he pleaded guilty.  

It is important to note that as he was not British, he could have contracted both marriages in a jurisdiction which admits polygamous marriage and been outside the scope of this legislation (but not perhaps his home state's.)  There can also be an argument that so long as the second marriage was "elsewhere than in England and Ireland" then he would also have been proof against prosecution for bigamy here.  However, that is an argument for another day. 

The Dispute 
Pervez Choudhry married Hameda Daulat in 1986, possibly here but it could have been in Pakistan. In December 2010 he married Dr Zabina Shahian, a GP from Birmingham, in Pakistan. He gave her to understand he was divorced, but he was not (although this may also be disputed).  It is assumed that Mr Choudhry is a British Citizen or else considerations in the Stark case above, apply.


Whether both of those are marriages for the purpose of the prosecution is the key point. If either one of them is not legally recognised, the charge of bigamy cannot be brought. The status of the marriages is one of legal fact to be verified inside the appropriate legal system.

The following is my best guess. To make out the charge of bigamy there are four elements:


1) He (or she) has to be a British subject bound by OAPA which could be shown by his birth certificate or naturalisation. Alternatively,  s.57 applies to non-nationals who contract valid marriages here, but this is more complex question and presumably not at issue in this case.  There is an element of mens rea; OAPA provided defences such as when people thought dead turned up a decade later. The defendant has to know they are misrepresenting themselves as free to marry which entails a measure of deception.


2) The first wedding has to be recognised as a marriage, which in this case means registered in the normal way here or perhaps by civil registration in Pakistan. A nikah - a religious declaration - may not be enough, whether here or there.   This is the debated point and it is by no means clear.  However, both countries have systems of civil registration of religious ceremonies, so at least that much could be verified.


3)  The first marriage, if legally established, has not been ended by divorce or other valid declaration of nullity.  It follows that Separation is not enough. A decree nisi is not enough. The divorce or other instrument has to be completed. 


4) The second marriage must also be legally recognised; a nikah, a witnessed contract, may not be not enough. Again, this is the point of dispute: Dr Shahian appears to have applied for a ruling from Pakistan that a nikah is a recognised marriage in Pakistan; however the reports do not make it clear if the assertion is that there is an accompanying civil registration. I believe the question is not whether a nikah is recognised there, but whether it ought to be recognised here. That is a matter of public policy, not to be decided on individual hardship. Up till now the belief has been that a non-registered marriage contract is not recognized in British law.


Conclusion
The foregoing shows that there is plenty of room for dispute and confusion. The police and CPS need clarification of when a possible charge of bigamy exists. There could probably be many more prosecutions if there was a will to bring the cases. 

Whether a nikah should be regarded as a valid marriage is a delicate political question which impinges on the definition of marriage across the society.   Currently there are thought to be a number of men contracting nikah-only marriages believing that this will mean they are regarded as cohabitees, not married, and thus outside the scope of UK marriage law for the purposes of property on separation or inheritance. 

Update: 

Shaista Gohir is the head of the UK's Muslim Women's Network. She says:
''If a couple has a nikah in a Muslim country then the marriage IS recognised under UK law. But many do not realise that this is NOT the case if the nikah is conducted in this country,''

At the moment there is a vague feeling that bigamy laws do not apply to Muslims, which is why it was so difficult for both women to persuade the authorities to bring the case. But being of a particular religion doesn't normally exempt a citizen from the law. The issue here is citizenship and what will be recognised as a marriage for the purposes of bigamy, marriage law, divorce law, family law and inheritance.


Above all, a law which is based on wording nearly 200 years old, from the age when sailing to Australia took three months, is due a review.


A useful review of the cases to date occurs incidentally to a British Virgin Islands case discussing sentences for the various contexts of bigamy, but this is not a complete review.

8 out of 10 cats prefer Cranmer

Do 70% of people think marriage should be left as it is: one of each sex?

A ComRes poll said so, and that's what the Coalition For Marriage (C4M) are quoting. 

This took approximately five minutes to find out, but rather than exercise their fingers and brains the Advertising Standards Authority (ASA) have written pompously to Archbishop Cranmer demanding that he explains it all to them as they are far too fick to bother to to check out a complaint about whether that figure could be substantiated.  It's not secret - the source is listed on the advert.

This, they think, shows them doing a good job.  I think it shows people whose jobs can be cheerfully cut. Luckily, it looks like the public aren't paying for once, so it's up to the advertising industry if they want to keep funding these idlers to provide free copy for bloggers. 

As His Grace politely points out, it isn't up to him to evaluate the original research. If the ASA want to challenge that, they must go to ComRes and C4M.  But we all know it isn't really about the opinion poll. Rather, it's an attempt to control what can be said politically in the context of an advert.

In this case, it is a Christian-led resistance to the re-definition of marriage which some people find  objectionable. They roped a trade-body in as arbiters of what can and cannot be said publicly.

I don't like C4M and Andrea Rose Minichiello Williams. I don't approve of the way the groups to which she is connected allow ordinary people - such as Mr and Mrs Bull of the Chymorvah Private Hotel - to get in to fights where the law is already weighted against them.  There are civilians and combatants, and you should be wary of  encouraging the former to become the latter.  Luckily the ASA have picked on someone their own size in Archbishop  Cranmer, who knows what he has signed up for.

This illustrates the point which Christian groups and Cranmer have previously claimed: that when a Christian expresses a view, not only can they expect that view to be challenged rightly in debate but that law, or quasi-law such as trade bodies claiming 'codes', will  try to stop them expressing a view at all.  

Checking the ASA's own code, it appears they don't have any remit to deal with editorial content so the following is run in the context of editorial material to further inform public debate about what it is attempting to suppress as offensive.

No permission has been sought from the originators nor has payment been received.

I 'ad that Barbara Streisand in the back of the cab once.

Update: Linkage -
Ministry of Truth - best formal analysis (as ever)
Ambush Predator
The Engineer
Peter Ould
Dr Jim West
Max Farquar  - best graphic
Anna Raccoon
Tim Worstall
Longrider
Orphans of Liberty  
Samizdata
Raedwald

Boiling Frog 

Counting Cats 

Harry's Place 

Chymorvah Appeal ruling

Allsorts disappointed with ruling

Peter and Hazel Bull of the Chymorvah Private Hotel in Marazion have lost their appeal to treat civil partnerships differently to marriage as a matter of religious belief.

Full ruling -  Bull & Bull v Hall & Preddy

This means that while the Bulls cannot refuse to have civil partners sharing a double bed,  exclusively gay hotel owners will rely on there being no specific cases which challenge their own blatantly discriminatory practices.  

A marketing term applies here; "gay-friendly" hotels are hotels which reassure guests who happen to be gay that they are welcome. "Exclusively gay" hotels are a significant niche market which specializes in welcoming guests who are gay. They are usually run by hoteliers who are also gay. They exclude other other guests on the basis of sexual orientation and/or gender. It is not clear that this has been legal for a while now, but there has been no significant challenge to the practice, only to some of the advertising.

The popular Pride Lodge in Blackpool advertises

Pride Lodge offers '4 star' accommodation specifically for the LGBT guest and their friends. We do not masquerade as a Blackpool Gay Hotel, we are exclusive and choose not to accept bookings for families or Stag and Hen parties,

So Pride Lodge does not accept a) heterosexuals (unless perhaps you are a friend of an LGBT person) and b) married heterosexuals. It believes it can treat people in civil partnerships differently to those in marriages - precisely the opposite of what was intended in law, now clarified in the Chymorvah case.

Hamilton Hall in Bournemouth is run by John Bellamy, offering specialist retreats exclusively for men; there is an emphasis on gay men but the hotel says that it will accept bookings from heterosexual men.  It wasn't him who worried about the Chymorvah's inconsistencies:

"Political correctness is a doctrine, fostered by a delusional, illogical minority, and rabidly promoted by an unscrupulous mainstream media, which holds forth the proposition that it is entirely possible to pick up a turd by the clean end."

Bellamy apparently understood the danger and intolerance of the Chymorvah case but perhaps was poorly quoted in February last year:

"We've been campaigning for this law for years so that everyone is equal, but it could spell the end of gay-only resorts."

Well then, maybe either stop campaigning and accept that if you want to discriminate, the others will have to be allowed to as well. 

Bellamy immediately went to the Equalities and Human Rights Commission (EHRC) for legal advice.  They say they won't prosecute him - because it is alright to discriminate if you are gay but not if you hold religious beliefs -  ands since they can veto these cases they can probably prevent anyone else suing him.

Hamilton Hall is also the first men only hotel in the UK to be investigated by the Equality and Human Rights Commission and be allowed to continue being a MEN ONLY HOTEL. 

In a similar vein, Guyz Hotel has changed its wording which used to specify that the hotel was exclusively male and exclusively gay, so that now is by implication. Except on the nudist weekends where you can be gay or bisexual but must be male. And naked, thus bringing it with the possible exceptions.

Key West in Torquay is an entire resort which is exclusively male, gay and bi-sexual i.e. it discriminates against exclusively heterosexual men, and women.  It does this by bringing itself within the definition of a private club.

At Key West Resort our ethos is to provide a safe and enjoyable environment for Gay and bisexual men. In order for us to achieve this Key West will operate as a Private Members Club. To use the facilities or to stay at the resort it is a requirement that you fit the criteria of the membership, Gay or Bisexual Male, you will be required to sign an acknowledgement (or tick the accept box when booking online) that you have read and agree to the membership rules.

A gay club can refuse to allow heterosexual married Christians in at all by calling themselves a club, but a Christian heterosexual hotelier cannot refuse to allow a pair in a civil partnership to share a double bed. Can you agree to be discriminated against?  That surely does not give  protection against the legislation. Maybe Chymorvah should just make it clear that it is private members club.

In the year since the original  Hall & Preddy v Bull & Bull case there has been a subtle change on the websites and marketing.  It is still clear which are the exclusively gay hotels but some of them have become reluctant to be identified. The case has done nothing to help them openly promote their businesses, which have had to go back to the days of people knowing which were the gay places and which not.  Cliff House in Devon has been established as a gay-owned, gay-clientel hotel for forty years now, but does that mean it will refuse bookings from hetersexual couples? It is difficult to tell from its gallery which includes things such as "Gareth's Mum's Wedding".

What should have worried the EHRC was that both the comments in Pink News and a balanced piece by Nelson Jones in the New Statesman  lacked sympathy with the prosecution.  It is obvious to anyone who isn't a lawyer that what matters is everyone making a living and everyone getting the hotel room they want.  That is best done by tolerating the inconsistency on both sides. The price for gay hotels is the very modest one of a couple of insignificant private hotels which are barely any different from the Pink House in Brighton.  They just all operate slightly different exclusion criteria.  Goose. Sauce. Gander.

There are female hotels too.  Hitherto a smaller sector, they may appeal to gay women but the overall sense is of refined gentility which relies on nicely brought up ladies not wishing to bump in to wuff gentlemen in the corridors.  The demand for this is growing. You would not worry about your daughter or your granny using these exquisite rooms; they might also appeal to ladies of very orthodox religious views.  Overall there is more tolerance of this version of discrimination but the growth in the service has become controversial as business hotels begin to reserve corridors by gender - and may refuse a booking from a man if there are only 'female' rooms left.

The irony is that while the Chymorvah hotel in Marazion found itself in the middle of a fight because it refused entry to two men who happened to be civil partners,  the original claimants Hall and Preddy didn't rock up to the beatiful women-only  Chymorgen on the North Cornwall coast only a few miles away and demand to be let in.

Apparently they don't mind being discriminated against on the basis that they are men, but they do mind that a pair of Christians won't recognize their civil partnership as equivalent to marriage. 

It is, and was, always about trying to force the public, and especially the orthodox Christians,  to accept civil partnership as marriage, which is why Hall and Preddy went to Chymorvah and not Chymorgen. 

....

Earlier link: Marriage a la mode - Popcorn

Royal Wedding

A wedding hat

Nana Raft loves a wedding, especially a Royal one. She has spoken and thus it is decreed we will be hanging out the flags because, if you look round at the Family Windsor, this could be the last big Royal wedding for a long time. There is the Diamond Jubilee next year.

Baba Raft has kindly agreed to do the catering, so it's all round to her gaff for the nuptials. She puts on a magnificent spread does Baba, which is far better than leaving it to me.

With all due respect to Republicans, I do not share their reservations. The English dearly love a lord and so, as it happens, do the Poles. The Polish car wash has decked itself out in flags and, touchingly, the English flag, bless them, for it is our Saint's parade on Sunday.

If the Poles can put on a show, so can I.

Besides, it is a chance to wear a wedding hat I bought some time ago. The hat is super-light, whipped up out of netting, just the thing for watching telly in (New Look, dahlink). It is unfortunately similar to a lavender lampshade but it was a bargain. I've even got a heather-pink tweed jacket and dress which will go well with it.

Possibly I shall have to wear it with pink Crocs if there is a lot of trotting from the nibbles to the telly; it's important to get the right functional footwear for these formal occasions. I will also get out the diamante necklace, although diamonds are not really 'before lunch' jewels. But then, they aren't diamonds. Maybe I'll go with the Majorica pearls - they are much more Kate than Di.

Best Wishes to William and Catherine.

Marriage a la mode - all the fun of the law

The first effects of the Bull ruling are being felt. Hotels which provide exclusively gay male accommodation, thus distinguishing themselves in the market, have had their business model damaged. This is what the Guyz Hotel "Gay Men Only" said last week.



The screen-grab is fuzzy, but it is from Guyz Hotel index (not the booking terms and conditions) and it says [my emphasis]:

Guyz Hotel has been run as a gay hotel for the past 24 years, and is one of the most popular and longest established gay hotels in Blackpool, catering for gay couples, singles and groups who want a gay environment with quality accommodation. Previously voted 3rd best gay hotel in UK!!

This could mean that it happens to be run with the preferences of gay patrons in mind. That is being 'gay friendly'. This is not the same as saying: "this is exclusively for gay people". It continued:

Guyz is a GENUINE Gay Hotel. That means it is a hotel owned and run BY gay people FOR gay people but beware there are some straight owned ‘Pink Pound’ friendly Hotels locally that display the pride flag trying to cash in on gay money, and it isn’t until you check in that you discover they may be mixed, or even have STAG & HEN parties staying.!!!

No doubt about it then. They won't accept heterosexuals and they won't accept lesbians. They discriminate on gender and sexual orientation; a guest has to fulfill both conditions to be admitted.

If you are specifically looking for a Gay Hotel be sure to ask if it is exclusively gay when booking to avoid possible disappointment

Ordinarily I wouldn't bother about a hotel choosing to run itself for gay men and failing to provide any objective and reasonable justification for doing so. There are a great number of hotels, so even if this one was discriminatory towards me and/or Mr Raft, it wouldn't matter unless a fair percentage of hotels refuse to serve us. In the meantime, Gabrielle's says I can't take Mr Raft in there either, not even if we are both gay.

Still, if that's the price of establishing a profitable business then I can live with it because I'd rather see people rich and happy than poor and miserable. The explicit sexism and heterophobia just doesn't make all that much difference to customer over entire hospitality sector, but it makes a heck of a difference to the hotelier at the modest end of the market where there are large numbers of similar hotels and only limited ways of distinguishing a service.

The EHRC dances round this by summarizing that sometimes it is possible to provide services on a discriminatory basis but that all differences in treatment must have an objective and reasonable justification. (See full guide). Can Mr Raft be refused entry to The Pink House hotel in Brighton objectively (because he's a man) and reasonably so? I doubt it.

For as long as the Bulls down in Cornwall have been tangling themselves up in knots over who can sleep in a double bed, the Guyz Hotel has been trading on an explicit separatist ethic. They cheerfully took up a registration as 'gay men exclusively' through a trade association, BAGS. (To use that link, do a search on the criteria "exclusively gay guests", meaning the website provider and the hotel both believe it is legal and intend to discriminate on sexual orientation.)

However, public money was spent by the Equality and Human Rights Commission on bringing a private civil case to test the implementation of a regulation in a statutory instrument which followed quietly behind the primary legislation.

John Wadham of the EHRC is crystal clear on this: if you are in a commercial relationship then you can't discriminate on grounds of sexual orientation and civil partnership is marriage for the purposes of claims under this statutory instrument.

That Regulation again:

Statutory Instruments 2007 No. 1263 EQUALITY
The Equality Act (Sexual Orientation) Regulations 2007
Made 17th April 2007 Coming into force 30th April 2007

There are explanatory notes at the bottom of the made version and an explanatory memorandum attached, which sets out the intentions of the act and is much easier to read before going on to the Act, although what is intended is not the same as what happens when the technical game of legal ping-pong starts.

5.11 The Regulations will impact positively on people in the lesbian, gay and bisexual community by providing a route to redress against discrimination. However, it will also have a positive impact on members of the heterosexual community, as they too can seek redress for discrimination where, for example, they are refused access to a pub because they are not gay.

So the intention of the Act was that public-access places such as the Guyz Hotel could be sued under this regulation for refusing to accept a heterosexual guest and that their ability to discriminate on the basis of sexual orientation would be removed from them. If they continue to advertise on that basis they are either discriminating unlawfully or advertising in a misleading fashion.

Perhaps somebody rang John Wadham (Helpline: 0845 604 6610) and asked about wording on the website because this week Guyz Hotel have hurriedly changed their welcome page which now reads:



Is this enough to keep them on the right side of the law? Regulation 10 states:

Discriminatory advertisements

10.—(1) It is unlawful to publish, or to cause to be published, an advertisement which indicates (expressly or impliedly) an intention by any person to discriminate unlawfully.

There are exceptions and exclusions to this but the general commercial guideline holds, so can any hotel being run for profit hold itself out as a gay establishment? To test that, would a hotel be able to advertise itself as a straight establishment? We haven't had the test case yet and the interesting thing here is that there is only one body which can bring it :

3) Proceedings in respect of a contravention of this regulation may be brought only—

(a) by the Commission,

which probably means that no matter how offended the Christian Institutes are by adverts for gay hotels, they cannot do anything about it, especially if the EHRC have told the hotel that they are in the clear. However, John Wadham and the EHRC might possibly bring one against a hotel which says:

Dire Straitz Hotel has been run as a heterosexual hotel for the past 24 years and is one of the most popular and longest established straight hotel in Llangrebub, catering for heterosexual couples, singles, and people who want a heterosexual environment. Situated close by Llangrebub's new heterosexual piazza, Dire Straitz Hotel is a short walk along the promenade from Llangrebub's tea rooms, ball room and chapel. Your hosts Mr and Mrs Jones would like to welcome all guests, old and new, and assure you of clean quality accommodation and service.

Although Mr and Mrs Jones say they welcome all guests, the wording could be interpreted as showing an intention to unlawfully discriminate on grounds of sexual orientation or simply be discriminatory in presentation.

Personally, I'd rather see the Chymorvah hotel and the dozens of gay hotels such as Guyz or Pride Lodge or Chaps open and doing their respective businesses. The more they are profitable, the less likely the proprietors are to wind up on benefits.

Note that the hotels forbore to go round shutting each other down, presumably because both the LGBT operators and the Bulls can count shillings; it's better for both of them to tut at each other but keep taking the money. It's hard to get guests and the best thing to do is to build up a regular clientele to smooth-out the seasonal demand and offer the national chains some competition.

It is guests who should be deciding if there is enough business to support an exclusively gay hotel; not the John Wadham and the EHRC as to whether they can run and advertise such an establishment. But if the EHRC is going to do this, it must do it equally across the economy.

The EHRC has a staff of 80 lawyers; the commission itself has a budget of £70 million. (I'm assuming the Times added up the numbers in the Report and Accounts, but I haven't checked)

When is it going to oblige the Acqua Sauna to open women-only sessions at a time which is suitable for that market i.e. they can't wiggle round it by doing only 4.30am on a Wednesday morning once a month, regardless of whether there is any take-up of the day passes?

Alternatively, scrap the EHRC, save £70 million, and leave Acqua Sauna, the Chymorvah hotel, and Guyz alone to get on with making a living.

Marriage a la mode - popcorn

I don't think much of the Christian Institute; it takes unsophisticated people like Peter and Hazelmary Bull and makes meejah capital out of them. Had they read the post Marriage a la Mode - gay and the comments there under, they would have known:

Civil Partnerships are marriage in all but name. In some people's eyes you aren't married but they probably won't accept that you are civilly partnered anyway. The law simply has no traction over that. So What? Nothing follows from this, except if they try to deny you rights to which you are legally entitled, in which case you can take legal action.

It was thought that the argument would come over whether orthodox churches could be compelled to perform gay marriages, but this is unlikely due to primary legislation defining marriage as involving a man and a woman. I also said in the comments that:

I await with a bag of popcorn the clashing arguments of freedom of religious expression and the primacy of civil rights law.

Turns out the the challenge had in fact begun in 2008 in the small Chymorvah Private Hotel in Cornwall and followed the 2006 Equality Act and, crucially, secondary legislation in The Equality Act (Sexual Orientation) Regulations 2007.

The hoteliers, Mr Peter and Hazelmary Bull do not regard civil partnerships as marriage - because it isn't in law or Scripture - and wish to provide hospitality in accordance with their Christian beliefs. They want unmarried couples in separate rooms. Since 1 May 2007 the law has required people in civil partnerships to be treated the same way as married couples in the provision of goods and services.

(I've linked to the Netlawman version because it is the easier layout to read.)

Note that this is secondary legislation, Statutory Instrument No. 1263 of 2007 . The SI was subject to the affirmative procedure, which is supposed to provide more scrutiny than just a nod if nobody shouts. For a description of the procedure, see page 5 of this briefing.

In practice only a dedicated tracker would be able to keep up with the process. Fortunately for Stonewall, it receives some hefty donations to help it do just that. See page 15 of the Stonewall 2009 Report and Accounts for a list of major donors, including:

Equality and Human Rights Commission £96,904
(this was the body which supported the case)
Greater London Authority £12,000
Scottish Government - Voluntary Action Fund £190,921
Welsh Assembly Government £109,996.
Stonewall's (charity no. 1101255) total income 2009 £3,843,063

Do please click on page 15; only four are picked out for illustration. In comparision, the Christian Institute (charity no.1004774) , who advised the Bulls, received donations and grants totaling £1,620,874 in a similar accounting period, but does not list the donors so it is not possible to see if there is a symmetry of receipts from public bodies. The overview suggests not, that the donations are from private individuals, but without the breakdown it is not possible to say for sure.

The explanatory note to the SI (linked below) insists that a reliable consultation procedure was carried out and that there was widespread public support for the measure, and that it reflects such exemptions as where justified. The SI is algebraic to read, full of As and Bs and IFs, so the explanatory note to the instrument is an important aid to understanding

Explanatory note from the UK legislation database:

7.14 The Regulations will make clear that married persons and civil partners are in materially the same position for the purposes of the regulations. This would remove a possible obstacle to civil partners bringing a discrimination claim on grounds of sexual orientation against a provider of goods and services who denied them access to a benefit or service that was being offered to a married person in a similar situation.

Or as it says in the explanatory notes to the made version:

Regulation 3(4) provides that for the purpose of the provisions defining whether discrimination has taken place, when comparing the treatment of two people, the fact that one is a civil partner and the other is married is not a material difference in the circumstances.

When the Christian Institute approached the senior citizen hoteliers Peter and Hazelmary Bull to help with with the case which had been brought against them by Martyn Hall and his civil partner Steven Preddy it became part of the Institute's continuing campaign to show that Christians face discrimination in the practice of their religion.

Sensible advice would have been to warn Mr and Mrs Bull, that in the Statutory Instrument which came in to force in April 2007 was a clause which required civil partnership to be treated as marriage, that they were very likely to lose because they didn't come within any of the exemptions, and if they were told to pay the costs as well as compensation, they could think of a big number and double it.

Had the Bulls backed down and offered compensation they would have been exposed to only a fraction of the expense and strain, and could probably have spun the lower publicity in to increased bookings. The Christian Institute could have explained the current law to the Bulls and not used them as cause celebres. Obviously a client's wishes must take precedence but it is the lawyer's job, even if working for free, to warn the client when they are on a hiding to nothing under the current regime. Let's hope the Christian Institute are picking up the costs for the Bulls.

Let's have a look at that S.I, courtesy of Netlawman. Here's the relevant point edited to bring out the structure:

(4) For the purposes of paragraphs (1) and (3),
the fact that one of the persons (whether or not B) is a civil partner
while the other is married
shall not be treated as a material difference
in the relevant circumstances.

The legal intention is clear: a civil partnership is not a material difference to marriage for the purposes of justifying different treatment. So don't try it, because it won't work.

One of the remarks made by the Judge Andrew Rutherford at Bristol County Court was that if the claimants, Hall and Preddy, had 'set up' the Bulls or were part of a sting operation, then damages would be curtailed. Strange to note, then, that the on-line booking form for Chymorvah makes the Bull's religious views reasonably clear:

Here at Chymorvah we have few rules, but please note that as Christians we have a deep regard for marriage (being the union of one man to one woman for life to the exclusion of all others).

Therefore, although we extend to all a warm welcome to our home, our double bedded accommodation is not available to unmarried couples – Thank you

Whether the Bulls were prepared to let them have the twin-bedded room, Trigge, is not recorded. Interestingly, this is a change from the wording which was earlier alleged to have been "we prefer to let double accommodation to heterosexual married couples only" says the Daily Mail, which suggests the wording was changed after a letter from Stonewall. One wonders how likely it is that Hall and Preddy were unaware of other legal challenges, or that they didn't read the hotel's website? They maintain they did not see it.

What the name and the wording suggests, however, is that the Bulls thought of themselves as running a home where they allowed people to stay overnight, as opposed to a hotel where they happened to be operators who also owned the building and lived there . They had mis-read the situation. Their freehold makes no difference to the legal position.

There is a very limited exemption under s.6 for someone taking in a close family member or similar in to their homes, but s.4.2(b) makes it clear:

Paragraph (1) applies, in particular, to— ...accommodation in a hotel, boarding house or similar establishment,

John Wadham of the Equalities and Human Rights Commission has been crowing that this is a landmark decision. Pish. It is a county court judge reading and correctly applying an SI which contained measures which mean that if push comes to shove, civil law trumps religious protocols in the booking of hotel rooms which are not part of religious organizations, and that goes for whoever is running the business, however small.

In general, the proposition that the secular law (both civil and criminal) should prevail over religious views has wide support. This is not so difficult to understand in the public sphere. Ms Ladele (a previous Christian Institute case) was a registrar and her job was to register civil partnerships, not have an opinion on whether this was morally defensible. Supermarket staff cannot refuse to handle goods on the basis that the items are forbidden in their religion. There are limits however. For example, the law recognizes the right of medics to refuse to take part in an abortion. It recognizes that for reasons of religious belief, pre-stunning before the slaughter of animals may not be enforced even though much secular opinion thinks it should be.

Despite the views of Judge Andrew Rutherford, Mr and Mrs Bull have a great deal of support in the country as it is by no means clear to people with better things to do than grovel around in the pocket-lint of discrimination legislation, why a pair of small business owners should be forced to facilitate sodomy in their own homes against their religion but are prohibited from allowing a paying guest to smoke indoors when they may have no objection to it.

Marriage a la mode - gay

Veteran gay rights campaigner Peter Tatchell has been chasing the government impishly on the issue of gay marriage.

Tatchell is not stupid; when he claims that there is a ban on gay civil marriage he must know he is talking bunk to make a political splash. First though, a recap of the legal and philosophical situation because to hear Tatchell - and a lot of other people - talk, you'd think it was banned. It isn't. The state doesn't have that power.

The state doesn't 'grant' marriages because that is wizarding, that is, and the state doesn't have a magic wand. All it can do is register them after the fact - and refuse to do so if it believes there is an impediment, such as one party being already married.

Marriage has its metaphysical underpinning in a consenting pledge between individuals, usually two but it can be more. Until recently it didn't make a lot of sense for people of the same sex to do it, but if Jack and John went off and pledged allegiance to each other, then there was nothing anyone could do to prevent that. If they came back and said they were married, then in their eyes, they were.

Of course, everyone would have laughed at them and told they they were not married, but that's a matter of opinion on a philosophical level. Jack and John believe they are cross-vowed, whereas other people believe a condition for the vow to be valid is that they have to be different sexes.

If Jack and John wanted to put some legal stiffening behind that to prevent bossy family and the intestacy law from frustrating their wishes, they had only to go down to the solicitor's and make a number of witnessed declarations, such as a pair of wills, clearly delineated property contracts, and make sure that they named each other as next-of-kin on health records, contacts on each other's passport, power of attorney, attitude to organ donation etc. The blood family may or may not have default rights but these collapse where there is a clear legal document telling administrators that default settings do not apply.

However several things could have been denied to Jack and John. They had no way of entering the relationship on a state-recognized register, short of forming a partnership under commercial law. They did not, until several test cases were brought, have a way of securing benefits from employers which were contingent on marriage which other married employees received. They could not rely on the default laws which normally govern marriage, nor the transfer of assets between the pair without tax. They could not force people in legal terms to recognize their binary relationship, but for all that, in their own eyes they were still married.

Various test cases and subsequent legislation dealt with the issue of partners being eligible for benefits on a non-discriminatory basis. A way to register a partnership and the remaining legal benefits was made, and called civil partnership. The naming was tactful; it was so that legislation could be got through without arguing about the label on the outside of the box for the next squillion years.

Inside the box, it is a civil marriage. Inside the box, all civil marriage is, is a publicly witnessed and registered mutual recognition of wishing to be accorded a particular status which then attracts certain legal rights, such as transfer of assets between partners without taxation.

Thus the benefits of same-sex marriage were secured for the people who wanted it. The paltry price for this was the name. Bargain. Register the civil partnership in the office, then, afterwards, hold what ever kind of celebration you damn well like. Get someone dressed up as Gandalf to muck about with a staff, a book and a ring. You either believe in magic, or you don't.

If you go down to the register office and comply with the requirements such as residency and capacity to consent, not being legally contracted to anyone already, not being within the degrees of family between which marriage or civil partnership are prohibited, etc, then you can have your civil marriage or civil partnership "solemnized" which means it will be contracted in front of witnesses and the presiding official will make sure as far as possible everyone is who they say they are, that they know what they are saying, and that the consent to what they are saying.

Your religious friends may pull faces and say you aren't married in the eyes of God, to which the answer is either "We'll just have to manage " or "She was there, She saw, and She approves".

There is one thing which was prohibited in civil weddings and civil partnerships. Religious symbolism and language. A church is a church and a state office is a state office. The state doesn't have the authority to do God, any god, and for once in the history of state arrogance it refused to be drawn in to this one.

So keen was the state not to blur this distinction that when in 1994 it allowed registration of civil marriages to happen in licenced locations which were not register offices, it maintained the prohibition on religious ceremonies. Section 46B(4)

"No religious service shall be used at a marriage on approved premises in pursuance of section 26(1)(bb) of this Act.”

Unfortunately, this sensible distinction was eroded in 2005 by people who were ignorant of the basis of religion and who cared nothing for constitutional arrangements, and who have been squaring up for a long time to try to force religious people to perform ceremonies they are simply not going to do.

As the Telegraph put it:

"readings such as Elizabeth Barrett Browning's How do I Love Thee and popular love songs such as Robbie Williams' Angels and Aretha Franklin's I Say a Little Prayer can be used during civil marriages. Readings from sacred texts, including the Bible, the Koran and the Torah, hymns or religious chants will still be barred."

(Note to the Telegraph: "Angels" is for funerals.)

The point here is was demarcation, an exquisite balance whereby the church accepted that the state could register marriages, while the secular state didn't step on its religious toes by claiming to have any priestly authority. "Blow that" said people who failed to grasp that this opens the door to a return to theocracy.

Technically, the use of self-chosen quasi-religious texts is more like the pagan practice of the contracting parties invoking divine blessings, so the official isn't really claiming to be a priest or shaman or rabbi, but it will have added to the confusion in some people's minds.

The Islington registrar Ms Ladele thought she was doing something religious and 'making' a marriage, like a vicar does, which was bunk from the beginning and the clue was in her job title: "registrar". Her role was to check the details and write down what she was told, and ensure they made the declaration with the approved wording. The case was legally about employment discrimination against her (she is thinking about taking the case to the ECHR), but most of the commentariat got to the nub of it; if your job is registering things for the state, such as civil partnerships and mixed-race babies, it isn't up to you to refuse to do the job just because you disapprove of either. What discrimination? Get on with your job.

As for the civil partners, if the name bothers you, the just describe yourself as 'married'. You can't be prevented from doing so.

In some people's eyes you aren't married but they probably won't accept that you are civilly partnered anyway. The law simply has no traction over that. So What? Nothing follows from this, except if they try to deny you rights to which you are legally entitled, in which case you can take legal action.