A Lib Dem peer has welcomed the government’s decision to withdraw from the position that same-sex relationships fall outside the ambit of family life as defined by the European Convention on Human Rights.
The British government intervened in the case of two Austrian gay men who argued before the European Court of Human Rights that their country’s failure to recognise same-sex couples is a breach of their rights.
Article 8 of the European Convention on Human Rights states:
“Everyone has the right to respect for his private and family life, his home and his correspondence.”
Horst Schalk and Johann Kopf argued that Austria has violated their right to a private and family life and their right to marry.
Article 12 states: “Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”
The UK argued that the existence of civil partnerships did not create a “positive obligation to create a structure for legal recognition or registration of same-sex relationships” in other ECHR signatory countries.
Lib Dem peer Lord Lester drew attention to the government’s position in a series of questions in October.
“It is bizarre for the Government, who turned my Civil Partnership Bill into legislation of which they can be justly proud, to intervene in a case against Austria apparently to persuade the Strasbourg court to adopt a narrow interpretation of the Article 8 right to respect for family life for same-sex couples in other European countries,” he said.
The Guardian reported today that the government has now abandoned its challenge to the Austrians’ claim.
Lord Lester told the paper: “I am delighted that the government is clarifying its position with the Strasbourg court (the European Court of Human Rights).
“This means that the UK is advising the court not to feel inhibited in developing its case law on protection for same-sex relationships.”
In October government minister Lord Bach set out the UK’s position:
“The main purpose of our intervention is to address the argument made by the applicants that the right to marry, which is protected under Article 12, extends to same-sex couples,” he told the Lords.
The Bishop of Rochester pointed out that “while Article 8 of the European convention provides mainly for privacy in the home and Article 14 provides for non-discrimination, Article 12 provides for a view of marriage between a man and woman and of family life that is basic to the existence and continuation of any society.”
Lord Bach responded:
“My Lords, Article 12 speaks for itself. Men and women of marriageable age have the right to marry and found a family according to the national laws governing the exercise of that right.
“When we passed the Bill of the noble Lord, Lord Lester, we made a distinction in it and did not call single-sex partnerships marriage.
“In many important ways, it was very similar, particularly in the many legal rights that it quite rightly gave to single-sex partnerships, but it did not call those partnerships marriage, and that remains the Government’s policy.”
He added that “we do not object to the advancement of case law from the European court.
“Our main objection is to address the argument that the right to marry, which is protected under Article 12, extends to same-sex couples.”
In October Vladimir Spidla, the EU Commissioner for Employment, Social Affairs and Equal Opportunities, said that it is up to individual member states whether or not to legally recognise gay and lesbian relationships.
There is concern that differing legal status of same-sex couples in different member states could lead to discrimination in parts of the EU.
“Within European legislation we have gone as far as we can go,” said Mr Spidla.
“If a state accepts the equality of these relationships then that state cannot discriminate.
“And there are already some infringement procedures against some states on this matter.
“However, whether the state accepts these unions or not is a basic national competence. And we don’t interfere with that.
“I think that we found the best possible balance in the proposal of the directive.
“These are national competences over things that are very sensitive and which are not the subject of European legislation so we preserve them in that way and I think that at this moment there is the best possible balance.”
Mr Spidla was asked about about a same-sex couple married in Belgium who would lose their rights and protections if they move to a member state that does not recognise their marriage.
“That is a very sensitive question. There are possibilities of transferring some social entitlements such as pension benefits,” he said.
“So these are things which have to be commented on with a very deep and accurate knowledge of the issue.
“On the other hand, my goal and my political aim is equal protection against discrimination on all grounds throughout the whole EU.
“And of course when it comes to transferability of social entitlements I am also trying to ensure that transferability is as universal as possible. That is my approach.”
Family law remains a matter for the member states and not the EU. At present some EU nations, such as Spain and Belgium, allow gay marriages.
The UK has same-sex civil partnerships, a system that will be introduced in the Republic of Ireland.
Other nations such as France have registration systems that give gay and lesbian couples some rights.
The French pacte civil de solidarité (PACS) is fully recognised in Britain, but France does not recognise UK partnerships.
Any EU-wide agreement on the issue of same-sex recognition would require a consensus among the 27 member states.
Given that politicians in Latvia, Poland and Lithuania are openly homophobic, such an agreement seems unlikely.
The British government is in negotiations with French officials over the lack of recognition of civil partnerships.
The issue of cross-border recognition was raised in the European Parliament earlier this month.
A declaration has been tabled on the issue. If it is signed by more than 50% of MEPs it will be adopted as a resolution.
It calls for “member states with existing same-sex partnership legislation to recognise the arrangements of other member states that have also made provisions for same-sex partnerships,” and for “guidelines for such mutual recognition by member states with existing same-sex partnership legislation.”
Resolutions are formally adopted by the European Parliament and forwarded to the Commission, Council and member state governments for consideration.
The declaration was tabled by Lim Dem MEP Sharon Bowles.
Her colleague Sarah Ludford, the party’s European justice & human rights spokeswoman, backed the initiative.
“Legislative changes which have enabled legal partnerships for same-sex couples have greatly improved the quality of life of many in the LGBT community,” she said.
“But free movement rights which are supposed to belong to all EU citizens remain a fiction for gay couples if they are regarded just as two single people abroad.
“The current system whereby EU states ‘pick and choose’ when to grant recognition is causing inexcusable havoc for gay couples trying to exercise their right to move.”