Martin Sewell, family Solicitor from Kent argues that Questions of “Partnership” and “Living Together” have always been complex and David Laws is entitled to the same benefit of the doubt as many other ordinary people.
In the “diverse society” which are all called upon to celebrate today, many of us live messy lives. Gone are the old certainties whereby only the married and the celibate were considered virtuous, the unfaithful were social pariahs and the homosexual imprisoned, and most of us consider that a good thing. Jesus himself taught that he who was without sin should cast the first stone.
Nowhere does our diversity throw up greater complexity that in the question of who is or is not ‘living together” and/or a ‘partner.”
What applies sexually becomes even more complex when the additional component of financial allowance is added, and I awoke this morning to hear John Humphrys on the Today Programme, dogmatically asserting to one of David Laws' friends and defenders, that as well as claiming an allowance for rent paid to another man, “they shared a bed.” It was asserted as if that were in some way conclusive, yet for many years the law in various forms has had to grapple with such problems in various contexts of claims and defences.
Fleet Street may shriek like “modesty raped” at the thought that people live in more confused ways than the old norms, but I am afraid that world weary family lawyers have seen this kind of thing many times over the last thirty years and it is an inevitable outcome of having moved away form the old institutional certainties. I say that as a matter of fact, and not approval or distain.
The Law and public bodies such as the Department of Work and Pensions have to consider these matters often. Were single mothers judged by the kind of standards that John Humphrys put this morning, there would be a much lower Benefits bill and I might not feel the need to defend a competent Treasury Chief Secretary who might have an appetite for cutting the public debt.
Many young women, for example, have lengthy and enduring relationships with the fathers of three four and five children whilst claiming benefit separately from them. Indeed the state sponsored encouragement for the poor and unmarried to live apart is one of the scandals which Iain Duncan Smith and others are currently addressing.
An obvious example is the “four nights” rule by which the state, in its desire not to deprive the single unmarried mother of a sex life, has long discounted overnight stays by a lover (even a working one who had fathered her child) so that benefit is not lost. This is a state institutionalised avoidance of John Humphry’s expressed outrage, that we have come to regard as commonplace. It is of course odd. There are many happily married long distance lorry drivers and members of our armed forces who have nowhere near that level of conjugality.
The answer is of course that what makes or does not make you “Living Together" or a “Partner” does not turn on the sexual issue alone, and we ought to remember that there are those who would be outraged to be told they were not “living together” even though their sex lives have ceased to play the dominant role that it seems to play in the minds of Fleet Street editors.
There are many other factors taken into account; financial arrangements, social reputation, institutional records and many other all play their part and I offer the following true story to illustrate the way in which lawyers and Judges sometimes have to weigh these things up.
I once represented a widow who had decided to let a room in her house for extra rental income. She took in an elderly gentleman who worked in the locality for four nights a week but went home over the weekends. They became closer and occasionally had a sexual relationship. Their families never met, but occasionally she went over to stay with him as a guest at Masonic and Round table functions where occasionally she was introduced by his name. In Kent none of her friends knew of their more intimate relationship. They were of a generation where such niceties were regarded as important. Occasionally they went on holiday and each paid their own way. They continued to have separate rooms and for rent to be paid, but there was no mixing of their finances. The arrangement had been an enduring one. There was no mutual provision of Wills, and we said no dependency. These arrangements had evolved over time.
Eventually the subtlety of the arrangement became known to the then Pensions Department who brought the matter before the Tribunal which looked at and weighed up all the competing factors. It was a decision that would have two consequences.
First, would the widow be entitled to claim her pension if cohabitation were found to be a fact, and second would she have to pay back the considerable amount of pension she had drawn during the many years this particularly idiosycratic arrangement had lasted?
The Tribunal decision was interesting and its reasoning perhaps highly applicable to the situation in which David Laws finds himself as he equally had an unclear set of rules and multiple factors to weigh up.
The Pensions Tribunal found that on balance she WAS cohabiting, so she would not get any more widows pension whilst the situation continued. However, such was the difficulty of making the decision that they themselves had struggled with, that the good lady was not unreasonable in thinking she had not been cohabiting under the rules. She was accordingly not required to pay back the money claimed when making a bona fide claim in these circumstances.
I offer this story for two reasons. First to make clear that in David Laws' position, he too is entitled to have the full nature of the relationship considered and balanced and that we must refute the notion that sex + financial claim = dishonour.
Second, I seek to demonstrate that ordinary non-lawyer members of the public can, do, and are entitled to find such questions complex.
I shall be frank. Liberal Democrat that he is, I rate David Laws highly and wish to offer support to keep him in public life and this Administration. I also value David Cameron’s determination to preside over a better Government than the last one.
These issues however are not as simplistic as many suggest for their own reasons.
I hope this piece contributes to those considering David Laws' position, to ensure that he receives no less fair a call than many other members of the public have enjoyed for many years. The idea that he ought as a matter of prudence and honour refund the money does not necessarily require that he be considered unfit for future office if his reasoning was honest and not unreasonable.
Appeal Judges often say about Judges who make lower Court decisions, that even if they would have made a different decision, the one made below was within the area of reasonable judgement and need not be disturbed.
In this difficult and fraught area. My example above illustrates how this can work out in practice.
Often we lawyers have to ask “Could a reasonable person weighing up the law/rules and all of the facts have reached the same decision?”
That is the only test that David Laws has to pass to survive politically.