The Malta Marriage Equality Bill: a further comment

This blog post is by Justin Borg-Barthet.

My earlier comment on the Maltese Marriage Equality Bill has prompted some discussion, including in an article in Sunday’s Times of Malta. In that article, Silvan Agius – a Maltese champion of LGBTIQ rights – responded on behalf of the Government of Malta.

Let me begin by identifying the common ground between that response and my own legal assessment. Mr Agius and I agree that a dynamic reading of fundamental rights law requires the elimination of all forms of discrimination on grounds of sexual orientation. This includes the right to marriage.

Equally, we agree that same-sex relationships should not, at law, be treated as asexual relations any more than should different sex relationships.

Contrary to his reading of my own argument, we also agree that foreign models should not be adopted blindly. Comparative law requires a critical approach to both/all relevant legal systems.

Our disagreement concerns the methods employed to achieve equality. This is a border skirmish between friends (literally and ideologically), not a fundamental dispute concerning the dignity and liberty of individuals.

‘Government could not blindly reproduce [Scots] law’

I have no brief to defend or promote Scots law. Indeed, Maltese law is, in some respects, more progressive. By way of example, civil unions are gender neutral in Malta, whereas civil partnerships are open only to same-sex couples in Scotland.

Mr Agius was setting up a straw man when he stated that Malta could not ‘blindly reproduce’ Scots law’. Nowhere was this suggested. Maltese and Scots law are substantively different and require different solutions. Legal transposition should not, in principle, constitute ‘blind reproduction’.

Furthermore, the stated reasons for rejecting the Scots law model are far from persuasive. Mr Agius’ explanation rests on two limbs, both of which are unsound.

The first limb of his argument is that ‘in Scotland, England and Wales, gay marriage was regulated by distinct laws.’ This is neither here nor there, and indeed is not entirely accurate. The Marriage and Civil Partnership (Scotland) Act 2014 amends the Marriage (Scotland) Act 1977 with a view to opening the earlier Act up to same-sex couples. The appearance of a lack of consolidation is simply a function of different legal traditions.

Furthermore, nowhere do I argue that “non-consummation should not be a ground to annul a same sex marriage”. If I had, I would indeed have been arguing “that same sex marriages are not on par with heterosexual marriages”. Mine was a criticism concerning a lack of definition. Indeed, the position in Scotland – contrary to Mr Agius’ contention – is that the notion of consummation simply is not addressed in its own right for couples of either gender-mix. The problem does not arise in the same manner.

Again, I do not suggest that this should be the position in Malta. I am simply arguing that the Maltese position is unsound. Consummation has a specific meaning which should either be changed for all couples or adapted for same-sex couples.

I was also somewhat surprised to read the Maltese government’s claim that ‘Scots law was consulted extensively’. Extensive consultation should include deep engagement with reports and consultations conducted abroad, not mere skimming of the surface. Had the Maltese government indeed consulted Scots law extensively, they would have been aware that sex was not ignored at all when marriage equality was adopted.

Far from homosexual sex being taboo, the subject was debated in some depth with a view to identifying adequate solutions. It was agreed that superimposing established opposite-sex norms concerning impotency simply could not work. This required careful consideration of sexual interactions, as opposed to sweeping this fundamental dimension of married life under the carpet, as has been done in Malta.

The decision was made to defer discussion concerning impotency for different sex couples, but to adopt a more liberal approach for same-sex couples. This was not because the legislator shied away from the reality of homosexual relationships, but because the legal ramifications had been carefully considered.

Now, Mr Agius is right to note that this has been subject to some criticism in Scotland, but it does not follow that the Maltese solution is adequate. Indeed, by retaining impotence as a ground of nullity unchanged for same-sex couples, Malta is simply choosing discrimination in practice for the sake of political sloganeering.

Abdication of Parliamentary responsibility: “The law courts will have to take into account the new realities and adapt the law to them”

The Maltese Government claims that the decision not to distinguish between the organic interactions of same-sex and different sex couples stems from a desire to preserve the unity of marriage. Yet the government response to my earlier comment contradicts this claim.

Mr Agius states that the courts will determine the meaning of impotence and consummation, in the same manner as they have done for different sex couples. If the intention is for marriage to be the same, then how will the courts reconcile the meaning of established terms with different organic realities of different sex couples? This is either a backdoor change to established definitions for different sex couples – which does not appear to be the intention of Parliament – or, it is an admission that different and same-sex couples simply cannot be regulated in the same manner.

Secondly, Mr Agius’ argument is a quite extraordinary admission that Parliament intends to leave a lacuna in the law which it expects the courts to address. To put it mildly, this is a somewhat idiosyncratic approach to the separation of powers. It is for Parliament, not the courts, to deal with the finer detail of family law policy.

But Mr Agius’ suggestion also misses a fundamental point about judicial legal development.   To the extent that courts did in fact elaborate the meaning of impotence and consummation for opposite sex couples, they had a wealth of comparable international experience on which to rely. Marriage law in Malta is, after all, derived from ecclesiastical sources. In contrast, same-sex relationships will not benefit from much international experience.

Furthermore, where there is international precedent, this is not necessarily relevant because regulation of same-sex relationships, novel as it is, differs from one jurisdiction to another. Indeed, Malta’s major parent legal systems, namely English common law, French civil law and Italian law, now regulate marriage quite differently to the contemporary Maltese approach. International precedent is simply unavailable, and Maltese same-sex couples will therefore have to rely on courts which lack the critical mass to develop solutions as predictably as one might expect.

Concluding remarks

Effectively, then my earlier suggestion that same-sex couples will be subjected to a lack of legal certainty, and in some cases to costly (both financially and emotionally) litigation remains sound. Indeed, it is implicitly confirmed by the Maltese Government that this transfer of the burden of regulation is intended by the legislator.

I remain of the view, therefore, that the Maltese legislator should engage more carefully with ongoing legal developments and consult in a greater spirit of openness. This will enable the better fulfilment of the declared aims of the legislation. It may also enable the legislator to address other unintended consequences, such as the discriminatory treatment of conversion of civil unions and marriages (while civil unions may become marriages, existing marriages cannot be converted to civil unions – a somewhat regressive approach – but more on that later…).

Malta Sunday Times

Perceptions of Corruption and Corporate Mobility: Malta as a real-time case study

This blog post is by Justin Borg-Barthet, a lecturer in EU law and Private International Law. Dr Borg-Barthet is the author of The Governing Law of Companies in EU Law (Hart/Bloomsbury 2012) and several other publications on corporate mobility. He recently formed part of a steering committee overseeing an extensive study for the European Commission on the law applicable to companies.

It is fairly well-established that cost is the primary driver for corporate choice of law and the choice of the physical location of a company’s business. Becht et al, for example, note that entry cost is the primary consideration for choice of corporate law. These authors also note that non-price factors in choice of law have been minimised through the intervention of intermediaries. Recent developments in Malta, however, suggest that non-price factors have some bearing on choices of establishment destinations in the internal market, at least insofar as they concern physical location as opposed to mere choice of law.

By way of background, following the publication of the Panama Papers, allegations concerning kickbacks have emerged involving the current Maltese Prime Minister, his chief of staff, a close aide, and a senior minister. I make no comment here on specific allegations. I am concerned, rather, with the effects of perception on inter-jurisdictional competition for incorporation and physical relocation of businesses.

Anecdotal evidence has emerged suggesting the some companies seeking to relocate from the United Kingdom to an EU-27 jurisdiction are influenced in their choices by the reputation of regulators. Hiscox Ltd, in particular, has chosen to situate its EU business in Luxembourg, having weighed up Malta and Luxembourg as its final shortlist. This cannot be explained with reference to entry cost. Operational costs in Malta are significantly lower than those in Luxembourg. Nor can it be explained with reference to familiarity with laws. Relevant Maltese laws are closely modelled on UK acts, whereas Luxembourg is of a civilian tradition. The key, instead, appears to be in Hiscox’s reference to Luxembourg’s “well-respected regulator”. It is not beyond reasonable interpretation to read this statement in its broader context; that is to say that the alternative regulator is no longer as well-respected, and that this affected choice.

Of course, this could be an isolated example. But it is consistent with the notion that choices of law and physical location are motivated by more than cost; or, more accurately, more than direct pricing. As noted by Devrim Dumladag, among others, ‘corruption in the political system is a threat to foreign investment’. It constitutes a risk which cannot be measured accurately, and which therefore cannot be accounted for with any degree of precision. Perception, therefore, is important. In 2017, Malta dropped ten places in the international Corruption Perception Index. Risk, therefore increased.

What is more, further evidence is emerging of a direct correlation between the ability to exploit the internal market and political reputation. It emerged on 14 May 2017 that, as a consequence of money laundering concerns, Commerzbank AG will no longer accept at face values audits conducted by branches of international firms situated in Malta. There have been no legislative changes in Malta which could have informed Commerzbank’s decision. The motivator appears instead to be political and administrative developments. It seems, therefore, that political branding matters.

Indeed, branding could, in principle affect not only physical corporate mobility, but also the legal fiction of mobility in the form of choice of corporate law. Drury argues, albeit in a quite different context, that a choice of corporate law – and with it the national suffix attached to a company name – affects public perception of a company. ‘Such labels give that company a distinctive national flavour in the minds of the public.’ Clearly then, it is not just the price of entry that would affect incorporation decisions, but also the associations arising from the national label which comes with incorporation.

This suggests that further evidence may emerge of downturns in the establishment of legitimate businesses under Maltese law. In other words, it is quite likely that both de facto and de jure mobility in the internal market may be affected by perceptions of corruption. While any evidence will likely be anecdotal in the absence of sustained academic investment, there is certainly some scope to qualify assumptions concerning price as a driver for corporate mobility.

Panama Papers.jpg

High Court orders UK Government to publish air pollution plan by Professor Florian Becker

The High Court ordered the Government to publish its strategy against air pollution on the 9th of  May.   European Union Law obliges the UK to develop and publish a plan to reduce nitrogen dioxide levels in the air to an acceptable level. For quite a while now, the development and the publication of this plan has been a controversial issue between the Government and environmental NGOs.

Such a plan might contain controversial and unpopular measures. Accordingly, the Government was not too keen to have the plan published before the local and general elections. To justify this reluctance it referred to the constitutional convention that there has to be a limit to government (and civil service) announcements with political implications during the pre-election period. One reason for this limitation is quite obvious: it is the parties and their candidates who are battling (re-) election, not the Government. It must not get involved and government (tax payers’) resources or authority must not be used in this battle, because it would be unfair to the opposition that does not have similar resources or departments at its disposal. This explanation, however, only makes sense when popular measures are at stake and the Government tries to raise the image of the supporting parties. Additionally, limiting the ability of Government to initiate potentially controversial policies with long term effects protects the freedom of manoeuvre for a new government (possibly supported by other political parties) and that government might have completely different views on a certain matter.

In this particular case, the Government probably tried to hold back discussion about measures against air pollution, because everyone agrees that pollution has to be tackled, but very few people accept that they have to give something up to reach this objective. Holding back the publication was probably not so much about protecting the fairness of the election and the political scope for potential successors, but more about avoiding a potentially damaging controversy. However, of course, the country cannot come to a standstill during the pre-election period and Government has to keep fulfilling legal obligations.

Image courtesy of pixabay.comairquality

Careful what we wish for? Clashing laws, energy and society

Dr Abbe Brown, Reader, introduces her 20 November event “Careful what we wish for? Clashing laws, energy and society”.

I am leading this event as part of the UK wide Being Human Festival. Aberdeen is a festival “Hub” and there is plenty going on. This is a fantastic opportunity for academics to engage with the wider community, to present their research and be challenged in respect of it.

A key theme throughout my work is that so many legal fields and forms of regulation can be relevant to a contemporary legal challenge – but often there is limited awareness of it. Say, addressing climate change might involve climate change, human rights, technology and trade. Within this, courts, lawyers, activists and policymakers often explore one particular issue – the one which is of interest to them, or which they are set up to consider – with others not being considered relevant. (Similar issues can arise in other areas of law, for example in respect of succession, as explored by my colleague and fellow-blogger Malcolm Combe.)

Clashes, and a lack of engagement with them, can lead to narrow, unfair and unworkable outcomes: say, a patent case ignores human rights issues, or a climate change treaty which encourages the transfer of technology but does not address the fact that companies which own relevant patents might simply refuse to transfer the technology. I am exploring these questions in London in 2016 with academic and professional partners, with research support kindly provided by BILETA.

But all this work can seem far removed from reality. What of the activists who called and marched for a treaty? Are they surprised that it can be blocked by private power, and was always likely to be? Or indeed what of those leading or working for multinational and local companies, seeking to secure UK energy security? Do they feel unfairly attacked? Are their contributions overlooked?

The open session on Friday 20 November, to which all are welcome, is a chance for members of the public (coming from all perspectives) to share their experiences. Is there indeed a problem? Are activists blocked or frustrated? How can problems be avoided or managed? Can useful solutions be shared? Can academics, lawyers and policymakers learn from this?

I am delighted that I will be joined on Friday by a diverse expert panel: Barney Crockett (Aberdeen City Council), Aylin Bahmanyar (student activist, University of Aberdeen) and Rev Scott Rennie (Queens Cross Church, LGBT and Green activist). The panel will share our own experiences and we then look forward to an interactive evening, with questions and contributions from the floor and via social media. The group as a whole will then “workshop” our solution to a (mainly…) hypothetical problem.

All are welcome at Queens Cross Church at 7pm on 20 November. For live Twitter feed on the night follow @AberdeenUniLaw. To send questions, please use our hashtag ‪#AbdnClash

Background

My research and teaching explore the laws relevant to innovation and their impact on key societal challenges (see Intellectual Property, Human Rights and Competition and Environmental Technologies, Intellectual Property and Climate Change). Recent projects are copyright, human rights and equality law as they apply to dance and disability (see InVisible Difference.org.uk), the place of patents in encouraging greater innovation and use of it in oil and gas (see script-ed.org, openscotlandmag.com) and the future legal framework for renewables and innovation in the EU (see all-energy.co.uk). My personal tweets are @IGFTowardAccess

Blog picture

Scottish Criminal Evidence Law Set Adrift

The School of Law has an ongoing seminar series, where our own academic staff or visiting academics are given the chance to showcase or develop some research. One such recent seminar was on the rules of evidence in Scottish criminal law.

Since the turn of the century, Scottish criminal evidence law has gone through a period of unprecedented change. Affected areas include:

  • the treatment of ‘vulnerable’ witnesses in court;
  • the tightening up of the ‘rape shield’ to prevent the questioning of complainers about their previous sexual history;
  • police questioning of suspects;
  • the Crown’s duty of disclosure;
  • the long-standing double jeopardy principle and rules relating to new evidence; and
  • increased pressures on the parties to agree evidence before trial.

That is just the beginning. There are proposals to render admissible the relevant previous convictions of the accused and for the introduction of a doctrine of ‘similar facts evidence’, not to mention the possible abolition of the ‘sacred cow’ of corroboration, where two pieces of evidence about an event are needed before that can come before a Scottish court.

Historically, the reform of criminal evidence in Scotland has been left to the experts, meaning lawyers, judges, legal academics, the Scottish Law Commission and the like. This has meant reform has principally come from ‘internal’ pressures and has taken place along familiar doctrinal lines. Increasingly, the recent revolution in Scottish criminal evidence law has been influenced by ‘external’ pressures, principally political considerations and a managerialist agenda which puts an emphasis on cost-cutting and efficiency.

The debate over corroboration provides an excellent example of the ‘politicisation’ of criminal evidence reform, whereby political considerations entered into what previously would have been a purely doctrinal debate. Similarly, the drive to increase the pre-trial agreement of evidence and to increase the amount of written (‘pre-frozen’) evidence introduced at trial as an alternative to oral testimony is a product of the managerialist drive to reduce the number of trials and shorten the length of trials that do take place in order to increase ‘efficiency’ and save money.

The future of Scottish criminal evidence law is difficult to predict. What is clear is that it will no longer be shaped primarily from within the field by experts in criminal evidence law, who might be expected to steer its development along traditional doctrinal or ideological lines. Increasingly its reform will be subject to external pressures, principally through the involvement of politicians, civil servants and interest groups pursuing ‘populist’ or ‘managerialist’ agendas.

All of this was discussed at a seminar in Old Aberdeen (see this collection of tweets) and will form part of an essay in a forthcoming collection edited by Peter Duff and Pamela Ferguson. The book will be called ‘Current Developments in Scottish Criminal Evidence Law’ and it will be published by Edinburgh University Press in early 2017.

Blog by Professor Peter Duff