Civil Partnerships Are the Best Way To Protect the Rights Of Unmarried Couples

The proposals on new measures to protect the legal rights of co-habiting couples, published today by the Law Commission, constitute a valuable, well thought-out contribution to the debate on the rights, responsibilities, legal status and social provisions relating to couples, whether married or not.

However, the proposals stop short of recommending any formal legal status for co-habiting couples, such as a registered or civil partnership - for straight couples as well as gay. The primary justification for not making such a recommendation appears to be that this would be viewed by some organisations, such as the Church, as undermining the marriage institution; and that this might undermine support for the new regulations the Law Commission is recommending.

An alternative view, set out in my blog entry on civil partnerships of 10 July and in a supporting article on new principles for marriage, is that civil partnerships are necessary and desirable for a number of reasons. The proposals made by the Law Commission today are complementary to my own proposals on civil partnerships. Indeed, the Law Commission's recommendations provide a useful regulatory framework for the resolution of financial issues resulting from the break up of a partnership, which was an issue for which I did not make any specific proposals (see items 3 and 4 in the table of differences in the provisions for separating married and unmarried couples in the 10 July post).

The Law Commission's proposals essentially give co-habiting couples the right to opt out of the regulations assuring an equitable resolution of financial and property claims resulting from a separation. The existence of formal (straight as well as gay) civil partnerships would effectively provide the opportunity for couples to opt in to a similar but more extensive set of regulations, whether or not they would otherwise have been eligible to apply for the support envisaged by the Law Commission for couples who have not opted out from it.

This might appear to be merely a technical distinction. However, it relates to more fundamental questions about why civil partnerships for straight couples may still be required even if satisfactory regulations - such as those suggested by the Law Commission - are brought in to protect the rights of separating co-habiting couples and their dependents. These reasons are set out below:

1) Civil partnerships such as those I recommend would not undermine marriage because they would be part of a more comprehensive, 360-degrees reform of the legislation and regulations governing marriage and partnerships. These would be designed to greatly strengthen marriage, and ensure that the commitments made by marrying persons are more far-reaching, strict and enforceable in law. A registered / civil partnership, in this context, would be similar to current civil marriage in terms of the degree and scope of commitment that was being made - less than the full commitment of a marriage, which would be greater than that which is formally prescribed for civil marriage in the present.

2) The full set of proposals I make involve the legalisation of marriage for gay couples, which would involve exactly the same set of rights and responsibilities as those applying to straight couples. Religious marriage would be preserved as a heterosexual-only institution - unless the Church or other religious body decided otherwise. But the civil law regulating marriages consecrated in a formal religious context would be the same as that which applied to marriages - gay or straight - formalised in a civil ceremony.

If gay marriage were introduced, there would be a need to consider whether the existing regulations governing (gay) civil partnerships should be retained or modified. Having created the legal entity of civil partnerships, it could be considered unjust to expect gay civil partners to be legally obliged to 'upgrade' their status to that of married partners if they did not choose to do so - especially if marriage implied a stricter set of rights and responsibilities than do civil partnerships and marriages today. However, if gay persons were allowed to remain civil partners even if gay marriage were legalised, it would seem discriminatory to deny the same set of options to straight couples: marriage, civil partnership or co-habitation (governed by regulations such as those recommended by the Law Commission).

Clearly, gay marriage is not immediately on the agenda, and the Law Commission's proposals do at least represent a sensible option for improving the protection afforded to co-habiting couples that currently choose not to marry. However, in my view at least, it is inevitable that gay marriage will eventually be introduced. This is because, in a civil context, it is discriminatory that gay persons cannot marry but straight persons can. People of a conventional religious conviction are entitled to hold the belief that gay marriage is an invalid concept. But then equally, if gay marriage were legalised, religious institutions would still be under no obligation to accept them as valid - just as, for instance, the Catholic Church does not accept that a civil marriage entered into by a Catholic without the consent of the Church is valid; or the Church of England does not necessarily accept the validity of second marriages. The fact that the Church holds a particular opinion about gay marriage should not prevent secular society from reforming the civil marriage institution so that it is not discriminatory.

However, even if gay marriage is never legalised, there is still an argument to be made that denying civil partnerships to straight couples is discriminatory under current legislation. This is for two related reasons: a) it involves denying to straight couples the rights and responsibilities bestowed on gay civil partners; b) as part of this, straight couples are denied the possibility to opt in to a particular set of regulations (those applying to civil partnerships), which is not denied to gay couples.

Any set of regulations designed to protect the rights of co-habiting / unmarried couples must surely apply equally to straight and gay couples, including the measures being proposed by the Law Commission. So if co-habiting couples - gay or straight - are allowed to opt out of the minimal set of supportive legal regulations advocated by the Law Commission, they should also be allowed to opt in to the more maximal set of regulations involved in civil partnerships.

But ultimately, only the legalisation of gay civil marriage will enable full equality and a balanced set of regulations, in which gay and straight couples will be allowed the same set of options: marriage, civil partnership and legally protected co-habitation.

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Car Culture: Time For a Change? (Part Two)

It was an accident, by the way: the cause of the sudden increase in traffic volume I noticed while writing the last blog entry. In fact, it was on the very road I was talking about – where I'd enjoyed that surprisingly revealing if noisy and smoky walk – probably at the rather dangerous junction where I regularly turn off to go down to my village.

There've been fatal accidents there and at other points on the road nearby before. Indeed, it seems part of the experience of modern driving that if you regularly travel along the same stretch of road – particularly out of town – you become very familiar with the accident black spots, even to the extent of having personal recollections of when such and such an accident took place, usually because it held you up on a journey. These recollections are often prompted by the roadside shrines to accident victims that have become a familiar part of the landscape. One route out from Cambridge I frequently drive along is peppered with such memorials – for one of which I indeed remember seeing the wrecked car being attended by the emergency services – and more and more seem to crop up all the time.

And yet we accept such daily horrors, probably precisely because they are an inevitable by-product of driving, at least with the technology, infrastructure and cultural attitudes that characterise this activity in the present. Driving is an inherently dangerous, potentially lethal activity. Yet we blind ourselves to this fact, possibly because this is the only way we can pluck up the courage to actually get behind the steering wheel. You could call this a benevolent form of blindness – so long as we still bear in mind that we need to be safety-conscious – in that it enables us to perform a useful function for society and ourselves.

But there is another form of blindness to the risks of driving, which consists of the absence of any proper sense of danger at all. At the risk of generalisation, I would say that this is typical of many men, who seem to go through life altogether without believing in the dangers associated with some of their activities. It's this same attitude that leads some men to find the idea of war – at least, in anticipation – exciting rather than terrifying, as if they don't really believe they could be killed. This lack of a sense of danger is typical, too, of another type of driver: the young, particularly the male of the species, who very often also seem to have no concept of their own mortality (bless them). But then it is precisely this sort of driver who is likely to drive most recklessly, not just for the negative reason that they don't believe they'll have an accident (though that helps) but for the 'positive' reason that they're enamoured with the excitement of driving as fast as they can and the thrill of the chase. Allowing kids like this to drive without any form of restraining supervision or technology (such as an accompanying adult or automatic speed limiters) is like putting a loaded gun in the hands of a child, taking off the safety catch and then telling them not to pull the trigger.

It may sound outlandish and reactionary to suggest that tough restrictions should be placed on young persons' freedom to drive, at least that of newly qualified drivers. But then you read news stories such as one that appeared today about a 19-year-old girl who's been sentenced to four years' detention because she crashed into a car while texting on her mobile phone, killing the other driver: a 64-year-old grandmother. She clearly didn't realise how dangerous it is to take one's attention away from driving even for an instant; so perhaps she really wasn't fit to drive.

The leniency of the sentence has been criticised. Far better to have tougher preventive measures in the first place and thereby reduce the number of accidents of this sort. But let's consider the sentence. Along with the majority of people in this country, you could be forgiven for thinking, I'm in favour of a radical overhaul of sentencing for criminal offences. What kind of punishment fits this girl's crime, if such a question makes any sense? I would like to see sentencing be a factor of two main objectives: 1) to make the perpetrator of the crime fully aware of the gravity of what they've done, so as to encourage remorse and a true resolution never to repeat the same mistake; and 2) to satisfy the demands for justice for the victims. On the second criterion, you could say that a proportionate punishment might have been a term of imprisonment so long (e.g. 25 years plus) that the girl in question could never have a family of her own, given that her action has deprived a family of its mother and grandmother. But on the first objective, the term that has been imposed will probably be sufficient to make the driver feel truly remorseful about what she did and determined never to do it again. So perhaps something in between would be appropriate: maybe a sufficiently long time to make the offender have serious concerns about whether she could ever have a family of her own, without necessarily destroying that possibility altogether – enough to take away the so-called best years of her life. Certainly, it would be worth considering a life-time ban from driving, rather than the five years that was imposed.

Sad, though, that one should have to talk in such terms and that two families have been devastated (that of the victim and that of the offender), as one of the police officers involved in the case put it. And this is just an illustration of how awful the human effect of motoring accidents caused not even necessarily by recklessness, but by carelessness or inattention, can be. Perhaps we really do need to give serious consideration to changing the way we assess people's suitability to drive and the punishments we mete out for driving errors to reflect a greater moral consciousness of the gravity of such incidents.

Sometimes it surprises me that there aren't many more accidents than there already are. In a way, driving is a quite bizarre phenomenon: we devolve the responsibility to provide mass transportation to individual amateurs, who are expected to be able to operate potentially lethal equipment (cars) and be capable of making intelligent, informed, split-second life-and-death decisions with a relative absence of training to a truly professional standard such as that which is expected of pilots, train drivers or even coach drivers. Put millions of such drivers onto the overcrowded, low-tech road infrastructure of this country that is supposed to support them, and it is inevitable there will be lots of crashes. Perhaps it's time to up the competency level and reduce the number of drivers.

Car Culture: Time For a Change?

The local press here in Cambridge, along with local people – to judge from the press's reported swelling mailbag – has been up in arms this week about plans to introduce a limited version of London's Congestion Charge. People would be charged for any driving they did within the bounds of the city – admittedly, only a relatively small area – during the morning rush hour between 7.30 and 9.30. Too bad for all those urban tractor-driving school-run mums, if they exist in Cambridge – Cambridge is probably more aptly described as the land of the sensible, environmentally-friendly super-mini second family car. They'd be charged the same fee as the lolloping 4x4s in any case – possibly, an incentive to get one: it would certainly encourage more car sharing; or would it?

We're so used to the madness of modern driving and the hopelessly inadequate measures to control it that we've become immune to it. Driving really isn't a sensible modern means of mass transportation in many circumstances any more. But we're wedded to the ideal of car ownership and driving because of the ideal of personal liberty with which it is bound up in our minds, along with the whole culture and romance of driving, associated with power, the thrill of speed, technology, wealth and social status. I used to enjoy driving for some of those very reasons, but it's increasingly become a stressful chore and more often an impingement rather than an enhancement of my liberty, as I literally spend hours taxi-ing my non-driving, mildly disabled partner around between appointments and 'essential' shop visits, thereby greatly taking advantage of the benefit of ' flexible' working hours that my work as a freelance writer and researcher supposedly affords me.

Clearly, there are some activities and situations where driving is the most convenient, even necessary, mode of transport, e.g. carting kids around on their hectic and random timetable of social, scholastic and leisure engagements; transporting infirm or disabled persons; emergencies; and those 'essential' out-of-town-centre superstore visits – but is that really the best and most enjoyable way to bring in the provisions? But equally, there are possibly more situations where the alternatives to driving either are already or could be both more practical and enjoyable, not just from the green perspective but from that of quality of life.

For me, it sometimes requires a situation where I have to walk, rather than hop into the car, to appreciate how much I'm missing through all the driving. I recently took a 2½ mile walk from one village, where my car was being serviced, back to the village I live in and was struck by the landscape I was walking through in quite a dramatic, unexpected way. My whole perspective on the physical environment was shifted; there were so many things I hadn't noticed and so much hidden beauty along this stretch of road I'd covered in the car a thousand times before. It was really a kind of epiphany, and I thought to myself that if my circumstances changed, I would drastically cut down my car usage – maybe even get rid of it altogether. That could be quite liberating!

My experience during what our non-car-owning forefathers would have considered to be a very short walk brought home to me just how much not only our physical environment but also our ability to connect with it has been degraded by the car. The road I was walking on for half of the journey was a major A-road, albeit one-lane; and on the face of it, it really wasn't a pleasant environment to be walking through. An endless string of large lorries, vans and cars came thundering past, literally shaking the ground and stirring my hair with the wind drag. Some of the drivers appeared surprised and even suspicious to see a pedestrian of what I like to call 'smart-shabby' appearance walking in their direction, even though there was a footpath. And really, it was not a road you would normally have chosen to walk along because of all the noise and pollution; indeed, I don't think I ever had walked along there throughout the 11 years I'd been living in one of the villages it connected to the outside world, although I'd cycled along it back in 1997! And yet, as I say, there was so much to see and enjoy.

It's difficult to envisage how we can ever become 'environmentally sensitive' in our automotive usage and technology, and in our technology per se, unless we become truly sensitive to the environment: aware of our surroundings, emotionally attached to them, and concerned about what happens to the physical fabric of the places where we live. But the car, even the more eco-friendly variety, tends mostly to militate against such an engagement with the environment. The places the car allows us to access become both symbolically, and on occasions literally, no man's lands: places we pass through, at speed, on the way to our destination; not an intrinsically valuable, indeed priceless, reality that can enrich and interact with our senses and emotions at every step – nor, indeed, a landscape filled with human activity and life of which we are and feel a part (rather than from which we are apart).

As I write this, I've become struck by a sudden increase in road traffic passing through the village high street on which I live. There must have been an accident or some other hold up on one or other of the local arterial routes. It's usually the A14, which has one of the densest vehicle-per-hour ratios and highest accident rates in the country. Whenever there is an accident – often fatal – the whole road system for miles around can get grid-locked. I remember one occasion when it took over four hours to make the five-mile journey back home, when the A14 and surrounding routes got paralysed by a sudden heavy snowfall to which the gritters did not react in time. Some poor folk were stranded in their frozen vehicles for 24 hours.

There's much that could be said about the madness of that. But I wanted to make a couple of observations about my road. The reason why I noticed the sudden increase in traffic is that normally, outside peak hours such as rush hour, lunch time or school pick-up time, the road outside is generally quite quiet – apart from, ironically, six o'clock in the morning when the postal truck unloads its cargo at the village sorting office next door! (But then, given my 'flexible' working hours, I'm normally up at that time anyway trying to catch up on time lost on taxi duty the day before!) But then occasionally, some driver (and not just the boy racer type) sees fit to let rip on the accelerator as soon as he turns on to the road and storms along at 50 mph+. This turns me instantly into 'indignant from Cambridge', as it just seems so needlessly reckless and dangerous, especially as it is a residential road with a school on it.

Mostly, this behaviour happens in the evening, when there are few pedestrians, let alone children, about. But that's not really the point: with the freedom that car ownership brings should come the responsibility of driving safely; or at least as safely as possible and practical, given the fact that driving is inherently a life-threatening activity, as the rate of accidents on the A14 – many of which are not due to driver error – testifies.

And that brings me to the question of what is the acceptable level of risk, injury and fatalities that society should be prepared to accept from widespread car ownership and usage? And that is a question I will consider in the next instalment of this blog.

New Principles For Marriages and Partnerships (Part Two)

2 Civil partnerships (gay and straight)

If civil marriages were redefined and reformed in the manner outlined in part one of this essay, then there would be a corresponding need to revise the thinking and legislation regarding civil partnerships. This would be the case for a number of reasons:

1. As marriages, under my proposed set up, would be more strict in terms of the legal and social obligations placed upon them, this could leave a vacuum, whereby the looser commitments many people make today when getting married would no longer have any formal framework within which they could be expressed.

2. As my proposals involve extending civil marriage to gay persons, it would be necessary to at least redefine the current rules relating to gay civil partnerships. If civil partnerships were retained, with or without a modification to the rules governing them, then it would be illogical if not discriminatory to limit them to gay couples.

3. Many people have already argued in favour of some form of official recognition of extra-marital straight relationships as a means of protecting the legal rights of those involved, and providing some means to celebrate and recognise those relationships that does not involve marriage. The current blog entry represents a proposal for precisely this sort of arrangement.

2.0 Guiding principles

2.0.1 Recognition of an existing status, not the start of a new one

Under my proposals, there would be a fundamental difference between a marriage (civil or religious) and a civil partnership. The beginning of a marriage would represent the start of a new condition of life: a new legal status pertaining to the relationship between spouses; formally becoming part of a new family; taking on rights and responsibilities towards the marriage partner and his / her extended family. A civil partnership, on the other hand, would be primarily the way in which society recognised the existence of a relationship outside of marriage, and conferred certain rights and responsibilities upon the individuals involved that were not identical to, or as extensive as, those of a marriage.

2.0.2 Table illustrating the differences and similarities, under my proposals, between marriages (gay and straight) and registered partnerships:

Marriages	Partnerships
1) While the actual sexual relationship is not inherently expected to be permanent and exclusive, there is an expectation of a life-long emotional and practical commitment to the spouse and his / her family	1) Neither the sexual relationship nor the emotional / practical commitment are inherently expected to be life-long. However, a registered partnership is still a serious social and moral statement of intent to care for one's partner and his / her dependants
2) A marriage is deemed to establish a permanent relationship between the spouses and their respective families: one doesn't just marry a husband or wife but marries into their whole family	2) A registered partnership is not deemed to establish extended family relationships other than those of genetic relatedness or those recognised by social convention. For instance, one's gay son's registered partner is not formally one's son-in-law, as his husband would be; but one is of course entitled to call him such. The establishment of a partnership would, however, confer the status of 'next of kin' on one's partner, unless this was explicitly rejected by mutual consent
3) There is a formal and enforceable process for dissolving marriages and for ensuring that the legal obligations of care for one's spouse, which one entered into on marrying them, continue to be fulfilled (albeit in a modified form) after the marriage	3) There is no formally prescribed process for dissolving registered partnerships, although best-practice recommendations are made about counselling and reconciliation services that are available. The process for determining the partners' financial and practical obligations towards one another and their dependants after the partnership has ended (which clearly would need to be worked out in much more detail than is presented here) is much more streamlined, with fewer possibilities for arbitration and appeal
4) The rights, needs and justifiable expectations of each spouse and of dependants, particularly children, are all given equal consideration in the event of a divorce. There is no inherent presumption of guilt for the marriage break down, and no automatic linkage of blame for this to the divorce settlement. This would be carried out purely on a basis of need, proportionality and justice – to be determined on the merits of each case	4) The rights, needs and justifiable expectations of all involved are also taken into consideration in the event of a partnership break up. However, there are fewer safeguards in place to ensure an equitable settlement: i.e. there is nothing such as a 'Statement of Expectations and Intentions' (a recommended formal document for before and after a marriage) or pro nuptial agreement to set the parameters, unless the partners informally agree to one. Similarly, the arbitration and settlement process is much more rudimentary: there is more of a straightforward equation, for instance, along the lines of 'father pays maintenance, inflation-linked, of £ x in exchange for y amount of access to the children whose custody is awarded to the mother'. There would also be fewer resources and tools made available for enforcing such decisions, meaning that abuses would inevitably arise
5) The tax and benefits system would be used to the advantage of married couples, especially those with children, in order to provide an extra incentive for married persons to stay together. The UK Conservative Party's proposals on marriage, published today (9 July), are compatible with this suggestion.	5) The assistance provided to registered partners and their families by the tax and benefits system would be awarded on a strict basis of needs, e.g. in line with the government's policies on reducing child poverty. There would not be any additional premium or separate benefits / tax breaks as there would be for married couples.

2.0.3 Prioritising marriage but dignifying partnerships

The purpose of the benefits and tax measures outlined in point No. 5 in the table above would not be to privilege marriage unfairly over unmarried, registered partnerships. They are merely intended as an additional incentive for people to take the decision to get married and to stay married, given the immense social benefit to be gained from stable marriages and families. On the contrary, by creating an additional official legal status for unmarried partnerships, it would be intended to support and affirm these relationships and the important role they play within society and families.

It is often argued that giving unmarried partnerships a status equivalent or similar to that of marriage would only serve to undermine the institution of marriage. My proposals address this criticism by greatly reinforcing marriage; by giving it a new and clearly defined status within society and families; and by establishing stricter, enforceable rights and responsibilities for married and divorced persons.

Precisely because of this more rigorous marriage regime, there would be many couples who might otherwise have got married who would no longer be willing or able to marry, for one reason or another: problems with emotional commitment generally; fear or rejection of the obligations entailed; reluctance to consider themselves part of their spouse's family; family objections; etc. The new 'registered partnership' framework provides an alternative official recognition of such relationships; and it also provides a framework of civic law to support pre-existing relationships of this sort that have hitherto given rise to de facto legal loopholes whereby parents have been able to evade their financial and moral responsibilities for children, for instance, or inheritance and tax rights have not been recognised.

Control Orders: A Better Alternative

The trouble with Control Orders - the UK security measure whereby terror suspects against whom a conventional legal case cannot easily be built can effectively be placed under indefinite house arrest - is that in practice they embody a presumption of guilt. This is in contrast to the long-established British legal convention that a suspect is to be considered innocent until proven guilty. Yesterday, the government launched an appeal to the House of Lords against a legal ruling previously obtained by six Iraqi Control-Order detainees that their detention violated their rights to liberty and a fair trial.

As in all such cases, it is important to try to strike a balance between the legal and human rights of suspects, and the right of the public to be protected against potential murderers. But the de facto presumption of guilt is clear: if the police who press for a particular suspect to be controlled did not think that the evidence they had gathered strongly suggested the person in question was a terrorist, then there would be no point in the measures - other than the exercise of political coercion to try to intimidate radical groups and individuals into behaving in a more moderate manner. But while a sense of injustice persists about the way in which suspects’ guilt is accepted by the judges who ratify Control Orders, so the suspicion that these measures are just such a coercive political measure will linger, to the detriment of the so-called battle to win hearts and minds.

There is an alternative that would bring more fairness back into the legal process surrounding suspects of this sort. If indeed there is a presumption of guilt, why not formalise this and say that it is then down to the suspect to demonstrate his or her innocence through a fair, open judicial proceeding? The suspect would have the right to know on what basis their guilt was being presumed and could appoint a legal team to build a case in their defence. The issue could then be decided in an adversarial manner just like any other case (albeit that, for security purposes, this might not involve a jury). The difference from the assumption of innocence would be that if, on the balance of evidence, it was not conclusive whether the individual either was or was not a terrorist, the Control Order or other restrictive measure would remain in place - subject to fairly regular (e.g. six-monthly or annual) review. If the verdict was guilty, however, this would enable the suspect to be imprisoned, thus doing away with the anomalous legal no-man’s land of the current system. And obviously, a not-guilty verdict would allow the individuals affected to regain their rightful liberty.

Clearly, there are potential pitfalls behind this idea, and legal safeguards protecting both the rights of the individual and the prerogatives of the state would need to be put in place. The main issue would be whether society would be able to accept a derogation from the presumption of innocence and would be able to overcome concerns that this would lead to further erosion of this basic right. But under the present set up, the presumption of innocence is in fact not working either to protect the rights of suspects or the state’s duty of protection. It’s because the formal process of law demands that the accused be presumed innocent until proven guilty that the case against them can’t be taken to court and the suspects are left in a legal limbo. And because a democratic state can’t arbitrarily impose imprisonment without trial, it has had to come up with the Control Order compromise; but this is not secure, as recent evasions have demonstrated - so society is not being protected.

The limited admission of a formal presumption of guilt that I am advocating would recognise the realities of fighting terrorism, which are that absolute guilt is sometimes impossible to prove beyond all reasonable doubt and that therefore guilt is having to be presumed in certain cases. And, at the same time, this would allow suspects to be given a fair hearing and chance to exonerate themselves if indeed they are without blame. And this would also defuse the charge made in some quarters that Control Orders are politically motivated and are placing the legal system at the service of an oppressive, anti-Islamic state.

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