Now, all our English liberties are becoming orphans

By William Rees-Mogg (THE TIMES, 29/01/07):

The issue of the Roman Catholic adoption agencies, and their refusal to arrange adoptions for same-sex partnerships, I find altogether fascinating. It involves fundamental questions of liberty, of freedom of religion, of European law and of political philosophy. In our collapsing political society it may prove to be only one week’s wonder, but it is important to think it through.

The dispute all starts with a European regulation — with one of those European incursions into British sovereignty that hardly one British person in a thousand was aware of at the time it happened. We think that we are free people, but 80 per cent of our laws come from Brussels, and cannot be rejected by the British Parliament or, indeed, by the British electorate.

If we do not like what Brussels decrees, there is only one thing that we can do. We can lump it. We certainly have no power to repeal it. Christopher Booker, who reports on European law very thoroughly, has told us where the story did actually begin. Brussels adopted a general directive, 2000/78, that gave a framework for equal treatment in “employment and education”. It outlaws any “discrimination based on religion or belief, disability, age or sexual orientation”. There is a feast of possible future litigation in those words.

Brussels was, in fact, rather more cautious than usual. Having in mind the Roman Catholic populations of Poland, and perhaps of Malta, where almost everyone goes to church at least on every Sunday, it added a clause stating that the EU “respects and does not prejudice the status under national law of churches and religious associations”. Brussels left the member states free to make specific provisions for religion. As a result, the Polish Government exempted Catholic adoption agencies from having to arrange adoptions for single-sex partnerships.

The British Government would have none of this. It chose to redefine “employment” and “occupation” to include the work of adoption agencies. It also chose not to exempt the Catholic agencies in respect of single-sex partnerships. This is a secular Government with a secular programme. It is also a Government that is very open to influence by lobbies. Rightly or wrongly, it is more afraid of the gay than the Catholic lobby.

The response of the Roman Catholic hierarchy, who are moderate men with a somewhat left-of-centre view of society, was to ask for an exemption. The Church does not accept gay marriages as valid. Ruth Kelly, the Minister for Equality and herself a Roman Catholic, did want to make an exception; indeed she still does. Tony Blair would have liked to support her; the Cabinet wanted a fully secularist policy, of a universal character, except in Scotland, where Catholic agencies would, reasonably enough, be allowed to refer single-sex partners to non-Catholic agencies.

There has been much talk of rejecting discrimination, although the civil partnership law itself discriminates in favour of gays and against family members and unmarried heterosexuals, who are excluded from the benefits.

The likelihood is that the Cabinet will maintain its position. The Catholic agencies, who do a very good job, would eventually have to close. Whose liberties will then have been taken away? Not the same-sex partners. They already have an advantageous position, which is not available to family carers or to heterosexual, but unmarried, partners.

Same-sex partners have the legal right to adopt, which is available through the great majority of adoption agencies. Their rights are therefore fully protected by existing laws, and will be reinforced when the Equality Act 2006 comes into complete effect. The people who will lose their liberty are, in the first place, the parents and families of children being placed for adoption.

Why do people go to Catholic agencies rather than to the more readily available Anglican or civil agencies? It will often be because they hope that children they can no longer care for will still get a Catholic upbringing in a Catholic family. That cannot always be arranged, but the intent will often be there. The Catholic Church does not accept single-sex partnerships. That is a matter of religious doctrine. One does not have to agree with it to defend its right to be stated.

No doubt the secular character of the present Government has reinforced its decision: There is to be no exemption. In its philosophical chain of thought, European ideas have played a guiding part. The historic basis of the English common law is one of pragmatism and precedence. Our law has been moulded over time to the shape of our English society. It represents the consensus of the English people over the generations. It has also been influenced by strong individual personalities, going back to the time of Henry II.

The philosophers of English liberalism have concentrated on the liberty of the individual, where the European philosophers have emphasised universal propositions. John Stuart Mill’s great work On Liberty makes his overriding concern for the individual absolutely clear. “If all mankind, minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind.”

The Cabinet, less Ruth Kelly and Tony Blair, is trying to impose its will on the Roman Catholic Church, which has become the representative of liberty as such. I do not doubt that the Catholic hierarchy will stand up for themselves. They have the full support of the Anglican Archbishops of York and Canterbury. They deserve everyone’s support. The European philosophers are represented by the universalism of Immanuel Kant, who believed in the “categorical imperative”, which he defined in this way: “I am never to act otherwise than so that I could also will that my maxim should become a universal law.” How English Mill seems; how un-English Kant was; how Kantian our human rights law has now become; how rapidly we are losing our liberties. Is it not strange that the weakest Government in modern memory should also represent the most insidious threat to our liberties?