Lady Hale ponders the Human Rights Act by Cameron Paterson
December 5, 2013 3 comments
Human rights are a curiously persistent bugbear in some corners of the press. Barely a month seems to go by without some story or other decrying the supposed burdens of the Human Rights Act 1998 and the Conservative Party has often seemed all too ready to join in. David Cameron has threatened to repeal the Act, and when he did so, he was only following the lead set by his predecessor as Tory leader, Michael Howard, who tried to attract support during the 2005 election campaign with the claim that “the time had come to liberate the nation from the avalanche of political correctness, costly litigation, feeble justice, and culture of compensation running riot in Britain today and warning that the politically correct regime ushered in by Labour’s enthusiastic adoption of human rights legislation has turned the age-old principle of fairness on its head”.
So shrill are the denunciations at times that you cannot help but wonder at the true motives of the people so eager to condemn the concept of human rights in law. What, after all, is so wrong with having the surely unquestionable rights to “respect for privacy and family life” (Article 8 of the European Convention on Human Rights) or the “right to marry and start a family” (Article 12) enshrined in law? Who are they trying to kid?
You could easily argue that the law itself a fundamentally a giant bill of rights – the right to fairness, the right to justice, the right to redress of wrongs. Every lawyer in the land is familiar with the concept of ‘habeus corpus’ – one of the most fundamental of all court orders and one which dates back to at least the 17th Century. It specifies that someone under arrest must be brought before a judge or court. In other words, they have the right not to be detained without cause and the right to a fair trial.
The learned Lady Hale, Deputy President of the Supreme Court, recently gave an illuminating lecture on the history and development of the Human Rights Act, and its roots in the European Convention on Human Rights.
The question she pondered for students at Warwick School of Law was how the Human Rights Act has become such a whipping boy for politicians and the press, when we as a nation were once proud of having helped to draft that very European Convention.
Reading her lecture we learn of the positive ways in which the seeming abstractions of human rights can have a real impact on people’s lives and act as a bulwark against injustice. Convention rights were the basis of the Supreme Court rulings in, for example, R (Quila and another) v Sec of State for the Home Dept, when Lady Hale and her estimable colleagues held that the Home Secretary had breached the Article 8 rights of two couples by refusing them marriage visas because they were below the required age.
To quote Lady Hale:
“…most of us thought it disproportionate for the Home Secretary to insist that both husband and wife had to be over 21 before a UK resident could sponsor a foreign spouse to enter the UK. This was avowedly for the purpose, not of efficient immigration control but of preventing forced marriages, yet it was acknowledged that many perfectly happily married young couples would be prevented from setting up home here together as a result.”
In the earlier case of Ghaidan v Godin-Mendoza, the House of Lords declared that survivors of same sex couples could inherit their partner’s right to a statutory tenancy under Schedule 1, Paragraph 2 of the Rent Act 1977. In Lady Hale’s words:
“By a majority, we held that a person who had been living with a deceased tenant ‘as his or her wife or husband’ [under the could include the survivor of a same sex couple in a stable, committed union, even though at that stage there was no formal legal status akin to marriage for them to contract into. Frankly, I did not find that in the slightest bit difficult. It would be as easy (or as difficult) to recognize the sort of same sex relationship which qualified as it was to recognize the sort of opposite sex relationship which did so.”
Lady Hale concludes with a few thoughts on the possible consequences of repealing the Act, if the Tory Party ever do carry out their threat.
“There are clearly some who are willing to contemplate repealing the Act and replacing it with nothing. The Home Secretary told the Conservative party conference that if leaving the European Convention on Human Rights is what it takes to “fix our human rights laws” that is what we should do. That would take us back to the constitutional position before the Act was passed, but it would raise all sorts of interesting questions about the effect of the decisions which have been made during the period while the Act was in force and whether the common law would now embrace many of the rights which were established during that time.”
Personally I hope that never happens but only time will tell.
Cameron Paterson is a journalist with an interest in legal matters. He has edited the Marilyn Stowe Blog since August 2012.
Photo of the University of Warwick campus by Kyrosho via Wikipedia under a Creative Commons licence.
December 5, 2013
Categories: Family Law