British Conservatism and the Legal Regulation of Intimate Adult Relationships, 1983-2013 Andrew Norman Gilbert UCL Doctor of Philosophy DECLARATION I, Andrew Norman Gilbert confirm that the work presented in this thesis is my own. Where information has been derived from other sources, I confirm that this has been indicated in the thesis. Signed Dated ACKNOWLEDGEMENTS I am very grateful to my primary supervisor, Professor Alison Diduck, for her enthusiasm for this project, her encouragement from the earliest stages of my writing, and her example as a scholar. Thanks also to Professor Michael Freeman, my secondary supervisor, especially for his insights into eighties Britain in general, and the Thatcher phenomenon in particular. I might never have begun this work were it not for the gentle promptings of Dr Penny English. I thank her for her support throughout this project. Friends and colleagues, especially Professor John Gardner and Professor Rob Home, have provided sage advice and kept my spirits up. Anglia Ruskin University gave funding support and an invaluable period of sabbatical leave. I acknowledge the help of Jeremy McIlwaine, keeper of the Conservative Party archive at the Bodleian, and staff at the National Archives, in accessing some of the material I drew on in chapter four. It is appropriate in a thesis about family that family played a significant part in the realisation of my research aims. I am indebted to the unconditional love and support from my mother and late father (Irene and John Gilbert), and from Lionel and Barbara Scott. Truly, this thesis would not have been completed but for Beckie’s constant and cheerful support. Such is my love and gratitude that I really don’t mind she beat me to the title of ‘doctor’. And, finally, thanks to Miriam, whose first steps in learning have been a constant reminder that all learning is a journey, never a destination; and for that reason I dedicate this work to her. ABSTRACT This thesis is a critical legal study of family lawmaking. Drawing on an understanding of conservatism based principally on the work of Edmund Burke and Michael Oakeshott, this work examines the two (apparent?) tensions of liberty and authority in the context of British conservatism and the legal regulation of intimate adult relationships since the 1980s. The dissertation divides into two parts. The first part reviews the literature on theoretical approaches to family law, before going on to construct a conservative disposition towards the legal regulation of intimate adult relationships. The second part comprises an interpretive analysis of the discourse around the genesis and development of four family law statutes, namely the Matrimonial and Family Proceedings Act 1984, the Family Law Act 1996, the Civil Partnership Act 2004, and the Marriage (Same Sex Couples) Act 2013. Taken as a whole, the statutes examined in part two constitute a case study in one discrete area of lawmaking against which to consider a conservative approach to family law, all located within the broader debate around the functions of family law. The final chapter concludes that, while I have uncovered examples of consistency and divergence between conservatism and the Conservative Party position on the legal regulation of intimate adult relationships, the core challenge for British conservatism remains how to manage change. For various reasons it might be unwise to predict the Party’s demise any time soon. However, unless modern conservatism deploys less onerous hurdles to reforming the law, I am less sanguine about the future of conservatism as a political idea which has any practical significance for lawmakers. TABLE OF CONTENTS List of abbreviations Table of cases Table of legislation CHAPTER 1 – INTRODUCTION 1 JUSTIFICATION FOR THIS RESEARCH 2 BOUNDARIES OF THE THESIS AND RESEARCH QUESTIONS 5 METHODOLOGY 9 SYNOPSIS OF CHAPTERS 14 A FINAL NOTE 16 CHAPTER 2 – THINKING ABOUT FAMILY LAW 18 INTRODUCTION 18 LIBERALISM 21 Liberalism and the primacy of the individual in family law 24 The functions of a liberal family law 25 Chambers and ‘supportive neutrality’ 26 The ‘expressive’ and ‘channelling’ functions of family law 27 Family law and responsibility 29 The post-liberal turn 30 MARXISM 31 Marxism and the family 31 How would Marxists solve these problems? 34 Critique 36 COMMUNITARIANISM 37 Communitarianism and family law 38 CRITICAL LEGAL THEORY 41 Critique 44 A critical theory of family law? 45 Enduring contribution 47 FEMINISM 49 Equality and justice 50 Feminism and the public/private dichotomy 52 TOWARDS THE THEORY OF FAMILY LAW? 54 CHAPTER 3 – CONSERVATISM AND FAMILY LAW 56 INTRODUCTION 56 WHAT IS CONSERVATISM? 59 KNOWLEDGE PRINCIPLE 64 CHANGE PRINCIPLE 68 CONSERVATISM AND THE FAMILY 73 To what extent should the law support marriage 76 and facilitate divorce? The clean break on divorce 79 Should the state legally recognise same-sex relationships? 84 The objection to same-sex marriage from natural law theory 85 The conservative/libertarian view 87 The conservative assimilationist argument 88 Going further - a classical conservative argument 91 CONCLUDING REMARKS 93 CHAPTER 4 – MARRIAGE AND DIVORCE IN TRANSITION – 94 THE MATRIMONIAL AND FAMILY PROCEEDINGS ACT 1984 INTRODUCTION 94 THE POLITICAL CONTEXT - THE NEW RIGHT 96 Thatcherism 98 The New Right, Thatcherism and the conservative tradition 100 THE CONSERVATIVE PARTY AND FAMILY POLICY PRIOR 102 TO THE MFPA 1984 The family policy groups 105 Lessons from a letter to a child 111 THE MATRIMONIAL AND FAMILY PROCEEDINGS ACT 1984 112 Genesis of the Act 112 The divorce time bar - previous law and criticisms 113 Law Commission proposals 115 The financial consequences of divorce – 116 previous law and criticisms Law Commission proposals 117 Analysis of the Bill in parliament 119 (1) The Conservative preoccupation with the expressive, 119 or symbolic, function of law (2) …That this preoccupation was at the expense of 124 concern over the substance of the law and its possible effects on vulnerable groups (3) The general failure to grasp the implications of 127 the financial provisions stemmed from a distrust of experts and of much of what passed for evidence in the parliamentary proceedings CONCLUSION 130 CHAPTER 5 - MAJOR CHANGE? - FAMILY LAW AND POLICY IN 136 THE DECADE FOLLOWING THE MATRIMONIAL AND FAMILY PROCEEDINGS ACT 1984 INTRODUCTION 136 THE MAJOR PREMIERSHIP – THATCHERISM AFTER THATCHER? 136 FAMILY LAW AND POLICY PRIOR TO THE FAMILY LAW ACT 1996 140 The Housing Acts of 1985 and 1988 140 Family Law Reform Act 1987 140 Marriage (Prohibited Degrees of Relationship) Act 1986 141 Finance Act 1988 141 Surrogacy Arrangements Act 1985 141 Children Act 1989 142 Human Fertilisation and Embryology Act 1990 145 Child Support Act 1991 147 The Gillick case 148 MAJOR CHANGE? – SOME CONCLUDING THOUGHTS 150 CHAPTER 6 - DIVORCING RHETORIC FROM REALITY: 154 THE FAMILY LAW ACT 1996 INTRODUCTION 154 THE GENESIS OF THE FAMILY LAW ACT 1996 155 The Law Commission reports 155 The Government’s responses 160 MAIN PROVISIONS OF THE BILL 162 ANALYSIS OF THE BILL IN PARLIAMENT 165 Pessimistic versus realistic assessments of the human condition 165 Legislators’ views of experts 168 Message-sending and the agency of law generally (again) 171 REECE’S POST-LIBERAL INTERPRETATION OF THE FLA 1996 176 CONCLUDING THOUGHTS 180 CHAPTER 7 - ‘COMMITMENT REWARDED’ – 186 THE CIVIL PARTNERSHIP ACT 2004 INTRODUCTION 186 THE CONSERVATIVE PARTY AND HOMOSEXUAL LAW REFORM 187 THE CIVIL PARTNERSHIP ACT 2004 192 The genesis of the Act 192 The Bill in parliament 197 Official Conservative position 198 The Conservative dissent 202 Sex in the shadows 207 Class 215 CONCLUDING REMARKS 217 CHAPTER 8 - AN UNNATURAL UNION? – BRITISH CONSERVATISM 221 AND THE MARRIAGE (SAME SEX COUPLES) ACT 2013 INTRODUCTION 221 FROM CIVIL PARTNERSHIP TO SAME-SEX MARRIAGE 224 THE BACKGROUND TO THE BILL 227 MAIN FEATURES OF THE BILL 228 ANALYSIS OF THE DEBATES 230 An overview 230 The diminishing of difference and the 232 assimilation of the gay ‘other’ Sex in the shadows (again) 235 The centrality of religion in the debates 239 Conservatives and conservatism in the Commons 239 Conservative MPs in favour of the Bill 240 Conservative MPs against the Bill 244 CONCLUDING REMARKS 247 CHAPTER 9 - CONCLUSION - THE END OF ILLUSION, OR, 251 WHY IT IS NEVER THE RIGHT TIME TO BE A CONSERVATIVE RESEARCH QUESTION ONE 251 RESEARCH QUESTION TWO 252 RESEARCH QUESTION THREE 255 RESEARCH QUESTION FOUR 259 RESEARCH QUESTION FIVE 262 CLOSING COMMENTS 265 Bibliography 267 LIST OF ABBREVIATIONS CA 1989 Children Act 1989 CFPG Cabinet-level Family Policy Group CLS Critical legal studies CLT Critical legal theory CPA 2004 Civil Partnership Act 2004 CRD Conservative Research Department CSA 1991 Child Support Act 1991 DHSS Department of Health and Social Security ECHR European Convention on Human Rights ECtHR European Court of Human Rights FLA 1996 Family Law Act 1996 HFEA 1990 Human Fertilisation and Embryology Act 1990 HRA 1998 Human Rights Act 1998 ICA Invalid Care Allowance IHT Inheritance tax LGA 1988 Local Government Act 1988 LGBT Lesbian, gay, bisexual, and transgender MCA 1973 Matrimonial Causes Act 1973 MFPA 1984 Matrimonial and Family Proceedings Act 1984 MSSCA 2013 Marriage (Same Sex Couples) Act 2013 MSSC Bill Marriage (Same Sex Couples) Bill PACS Pacte civil de solidarité PFPG Party-level Family Policy Group WEU Women and Equality Unit TABLE OF CASES B v B [1955] P 42………………………………………………………………………..208 Burden and another v United Kingdom [2007] 44 EHRR 51………………………..194