Gay marriage - an EU commitment

TAP - I haven't done anything much on gay marriage as it's so heavily covered in the MSM.  However many comments and emails have shown reader interest, this from Stephen.

From: Christopher Gill [mailto:cgill36@hotmail.co.uk]
Sent: 08 February 2013 07:51
To: Chris Woodward
Cc: Vanessa Lee; UKIP LUDLOW; Tony Roberjot; Sarah Walker; Roger Hipkiss; Rod Evans; Philip Gutteridge; Maurice Alton; Margaret Shaw; Kevin Stokes; John Gill; John Davies; Derek Armstrong; Chris Woodward
Subject: EU politics: gay marriage – required by "Europe", by Richard North

 

  

EU politics: gay marriage – required by "Europe"

via EU Referendum by Richard on 2/5/13

Acute observers have noticed that David Cameron is not alone in his obsession with homosexual marriage, with the French National Assembly last week having approved the most important article of a bill to legalise same-sex marriage.

Same-sex marriage has already been legalised the Netherlands, by Norway and in Germany, where the constitutional court has recently strengthened the rights of homosexual couples, giving them a same tax benefit as heterosexual married couples. That country, rather like Britain, is currently "mired in an escalating debate on the status of homosexual partnerships".

Given the Europe-wide interest, which also includes Spain, it is not untoward to ask whether there is an EU dimension in all this. The answer is "not directly". There is, however, a very strong "European" dimension and a UK link. But to find it you have to go not to Brussels but to Strasbourg and the Council of Europe (CoE).

The clue is in the tidied-up screen grab above, where the Home Office tells us of the Council of Europe and its work, which "includes promoting gender equality and more recently lesbian, gay, bisexual and transgender (LGB&T) equality".

There also we find that United Kingdom assumed the Chairmanship of the Committee of Ministers of the Council of Europe for six months from 7 November 2011 to 14 May 2012, whence we cut to thestatement of priorities for the UK chairmanship, in which Minister for Europe David Lidington declares:

… the Government has repeatedly made it clear that human rights are central to its foreign policy. We aim to be an example of a society that upholds human rights and democracy, and we are committed to strengthening the rules based international system.

For the detail of those fine aspirations, one has to go to the formal statement, where the preamble tells us:

The United Kingdom is proud to be assuming the Chairmanship of the Committee of Ministers of the Council of Europe from 7 November 2011. As a founder member of the organisation and the first country to ratify the European Convention on Human Rights, the UK takes the responsibility of the Chairmanship, which it last held in 1993, very seriously. We see it as an opportunity for the UK to play a leading role in the vital work of the Council of Europe in promoting rights, democracy and rule of law across the continent.

Within this, we then find that the "overarching theme" of the Chairmanship was "the promotion and protection of human rights", with a "particular focus" on developing practical measures in a number of areas, one of which (of six) was, "combating discrimination on the grounds of sexual orientation and gender identity".

Meanwhile, things had already been warming up in Strasbourg, which now has its own dedicated LGBT project which on 31 March 2010 got accepted Recommendation CM/Rec(2010)5 of the Committee of Ministers to member states on measures to combat discrimination on grounds of sexual orientation or gender identity".

This, amongst other things, referred to ECHR and "other international jurisdictions", which "consider sexual orientation a prohibited ground for discrimination and have contributed to the advancement of the protection of the rights of transgender persons", and then recommended members (including the UK) to:

1. examine existing legislative and other measures, keep them under review, and collect and analyse relevant data, in order to monitor and redress any direct or indirect discrimination on grounds of sexual orientation or gender identity; and

2. ensure that legislative and other measures are adopted and effectively implemented to combat discrimination on grounds of sexual orientation or gender identity, to ensure respect for the human rights of lesbian, gay, bisexual and transgender persons and to promote tolerance towards them;

This is not quite the smoking gun, but this is to be found in the same document, viz:

23. Where national legislation confers rights and obligations on unmarried couples, member states should ensure that it applies in a non-discriminatory way to both same-sex and different-sex couples, including with respect to survivor's pension benefits and tenancy rights.

24. Where national legislation recognises registered same-sex partnerships, member states should seek to ensure that their legal status and their rights and obligations are equivalent to those of heterosexual couples in a comparable situation.

Although these are framed as "recommendations", they are headed "Right to respect for private and family life", which makes them, effectively, the CoE official interpretation of Article 8 of the ECHR. To all intents and purposes, it has the effect of treaty law – certainly as far as the UK is concerned.

The LGBT lobby in the Council of Europe, however – which has acquired its own website is also able to invoke Protocol 12, explained in detail here, which sets out in Article 1&2, that:

1 The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

2 No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.

This effectively, by solemn international treaty, requires parties to permit same-sex marriage, with all the attendant legal rights afforded to heterosexual couples.

On the UK front, in anticipation of the UK's Chairmanship of the CoE in November 2011, HM Government in March 2011 published a report, "Working for Lesbian, Gay, Bisexual and Transgender Equality: Moving Forward". 

There, on page 12, doffing a cap at Protocol 12 and, specifically, to implement  Recommendation CM/Rec(2010)5, was a commitment to, "work with all those who have an interest in equal civil marriage and partnerships, on how legislation can develop". The actual "smoking gun" was on Page 14, with a commitment to:

Work towards the full implementation in the UK and across Europe of the Council of Europe's recommendations 'Measures to combat discrimination on grounds of sexual orientation or gender identity' including by using our Chairmanship of the Council of Europe from November 2011 to review progress.

This, naked in tooth and claw (to coin a phrase) is Recommendation CM/Rec(2010)5 and the timetable set for "full implementation" in June 2013, with responsibility delegated jointly to the Foreign Office and Government Equalities Offices (see below). And why is the FCO involved? That is because it involves international commitments.