You’ll have seen the story in the past few days that the European Court of Human Rights ruled against a couple of elderly sisters who wanted to have the same inheritance tax rights as two women in a Civil Partnership. Here’s the Telegraph’s report:
In a 15-2 vote, the European Court of Human Rights in Strasbourg ruled that Joyce Burden, 90, and her sister, Sybil, 82, do not face unfair discrimination under British inheritance tax rules.
The pair argued that they should be spared inheritance tax in the same way as married couples, or homosexuals who form a civil partnership.
The sister who lives longest faces having to sell the family home in Marlborough, Wilts, when the other dies in order to meet the cost, estimated at more than Â£200,000.
The sisters claimed British inheritance tax laws breached their human rights by exempting married and gay couples, while targeting cohabiting siblings.
But the Grand Chamber of the human rights court upheld an earlier ruling that national governments were entitled to some discretion when deciding taxation arrangements.
The decision means that when one sister dies the other will have to sell their four-bedroom property to pay the 40 per cent inheritance tax on its value above Â£300,000.
The house is worth about Â£875,000.
If they had won their case, British inheritance tax law would have had to change, to place cohabiting couples on an equal footing with married couples and â€œcivil partnershipsâ€ in being exempt from inheritance tax.
The sisters, who have been asking the Government to look at their case for 30 years, decided to write to the European courts after Labour introduced the Civil Partnership Act in 2004.
The Act granted the same right to gay and lesbian couples to avoid inheritance tax as married couples, but not to cohabiting family members.
Quite right too.
Yes, you read that correctly. I am of the opinion that the Court made the right decision, and here’s why.
Step back ten years to when Civil Partnerships were just a legislative pipe dream. Imagine that you hear a news story that a brother and sister who happen to live together want to have the same inheritance tax rights as a married couple. What would your reaction be? Do you think that the brother and sister should have the same inheritance rights as a married couple? What about an unmarried couple? How about children?
As I’ve been reading some conservative blogs commenting on the news of the sisters’ defeat, the most disappointing thing in the content of the replies to the news has been the misunderstanding that this issue has *anything* to do with gay rights versus non-gay rights. For example, in the Daily Mail Tom Utley writes:
By a majority of 15 to two, this foreign tribunal ruled the sistersâ€™ relationship was “fundamentally different” from that of homosexual and married couples.
For this reason, the court found it was perfectly all right for the British Government to offer couples such as Sir Elton and Mr Furnish exemption from inheritance tax, while insisting the Burden sisters should cough up.
Well actually yes, Mr Utley, there is something fundamentally different between the case of the sisters and, for example, my wife and I (and interestingly why Tom Utley chose to highlight a gay couple rather than a married couple beats me, because the sexuality of the legal partnership, gay or straight, has nothing to do with the legal case at hand). The difference is that the state has chosen to give marriages and civil partnerships special inheritance priveliges that they do not give to other couples and any other relationships, biological, familial or otherwise. The Burden sisters could equally argue that they were being discriminated against in favour of married couples for as much as it mattered.
Like it or not, the Parliament legislates to allow the Government to recognise and favour particular relationships, whether marriage, civil partnerships, limited companies, charities or any other social structures which society contains. It can decide on our behalf which are promoted or discouraged and the legal outworkings of that have may or may no have anything to do with moral equivalance. What the ECHR ruling highlights for us in the UK is very clear – something is not similar in the eyes of the law unless the legislative deems it so to be. Living within a structured society implies that we accept that the state will favour certain social frameworks, but the presentation to the body politic of a different social structure accompanied by a claim that it should be treated similarly is not in and of itself any justifiable reason for the body politic to accept such a variant in its recognised social structures. Just because two sisters are the same sex as a civil partnership does not in any sense mean that the state has to recognise them as legally identical.
But before you think I am becoming an outragous liberal, consider that this viewpoint that I am putting forward is exactly the same argument that could be used against Civil Partnerships in the first place. In the same way that just because a pair of sisters living together is claimed to be the same as a same-sex couple doesn’t justify it in any way being treated identically in the eyes of the law, a same-sex couple that looks for all intents and purposes like a married couple does not, in and of itself, create an argument that a same-sex couple should be treated like a married couple. Indeed, if society so chooses to recognise one relationship as legally identical to the other it may freely do so, but unless you have some form of objective indisuptable moral framework which the law is intended to reflect, any claim that a form of human relationship should be given legal equivalence to another, or be given a different legal status, is just that – a claim. It has no moral integrity in and of itself but relies for force of argument only upon the opinion of the specific members of the body politic who create the judical and societal framework within which we live. That’s not to say that the introduction of Civil Partnerships was an incorrect move, but it it is to say that we need to carefully consider the real reasons we object to or support the legislating of the recognition and beneficing of any kind of social structure or arrangement, marriage, civil partnership, family or otherwise.
Now, all this is not to say that there isn’t a case for reworking the inheritance tax law in this country. At present parents working hard to provide security for their children and loved ones are penalised when they die as the Exchequer takes 40% of all the wealth above a certain threshold. The income from this forms a miniscule part of the HMRC’s income and it causes huge resentment amongst the increasingly wealthy middle class as the surge in house prices of the past decade makes more and more families liable to the punitive Inheritance Tax rates. So let’s have a good discussion in this country about whether we need this tax anymore.
But let’s not make the mistake of thinking that this issue has *anything* to do with gay rights versus others’ rights. It has nothing to do with that and the longer social conservatives (of which I number myself one) think they can make any political capital from making it out to be such a struggle, the longer they will put off the vast majority of people in this country who, whilst mildly socially conservative, are able to see the whisps of homophobia in the reaction to this news for what they are.
It’s time for social conservatives in the UK to have a sensible debate about the elimination of inheritance tax, and it’s also about time we stopped seeing the “promotion of homosexuality” around every legislative bush. The case of the Burden sisters has nothing really to do with Civil Partnerships and everything to do with understanding how we make laws and shape social structures in this country.