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Andrew Tettenborn: Anti-marriage, anti-family – this Court of Human Wrongs must go


Human rights enthusiasts want you to think that the European Convention on Human Rights deals in matters of high constitutional significance. In fact as often as not the claims it supports are rather different, aimed more at micromanaging the way we do things in the interests of equality enthusiasts and other progressives. A court decision last week, which probably passed most TCW readers by, neatly shows what is going on beneath the surface.

A retired prison governor named John Bulloch died in 2011 as a result of incompetent treatment in a Preston hospital. The question of compensation for his death then arose. Now, the rules on this – at least those passed by Parliament – are fairly simple. First, almost any relative who was financially dependent on the victim, including spouses and cohabitees with a minimum of two years’ standing, can claim for loss of support. Second, a limited class, restricted to spouses, civil partners and the parents of deceased unmarried minor children, have an additional no-questions-asked claim for just under £13,000 for the mere fact of bereavement. The second caused the problem. Ms Jacqueline Smith, Mr Bulloch’s unmarried partner of some 11 years, was welcome to claim every penny of lost support but, as a non-spouse, not the additional £13,000. She nevertheless sued. On what basis? You’ve guessed it: human rights. And you’ll guess what happened too: the Court of Appeal agreed. It declared that whatever Parliament said, English law had by refusing to treat her as it would a wife failed to satisfy the minimum standards of treatment demanded of all civilised countries.

The judges deserve no criticism; they were loyally, and correctly, applying the logic of the ECHR as expounded in Strasbourg. But this suggests that all is not well with the ECHR system and why, once Brexit is out of the way, we need to think seriously about replacing it with something more sensible.

To begin with, thinking as a layman rather than a member of the freemasonry of human rights activists, it is odd that a trivial issue like this – does a dead man’s cohabitee get a bonus of £13,000 over and above loss of support? – should be the concern of human rights lawyers at all. Human rights should be about matters so important that they need to be taken out of the reach even of properly-elected democratic governments. Invoking them over petty arguments about whether heart-balm damages should go to spouses, or cohabitees, or both, or neither, trivialises the whole concept of humanitarianism, which desperately needs respect in order to deal with the things that do matter.

Secondly, it is instructive to see how European human rights law got hold of this case at all. The ECHR gives no right to equality between wives and cohabitees. Nor does its protection of family life, or any other provision, guarantee a human right to compensation for losing a loved one. How then could Ms Smith complain? The answer is a bizarre doctrine superadded by Strasbourg judges to the ECHR, that there must be equal treatment not only in giving people their entitlements but also in all matters constituting ‘one of the modalities of the exercise of a right guaranteed’ – that is, in all cases where a state does anything vaguely connected with one of the rights protected, even if not covered by it. The result here: even though no one has any human right to compensation for bereavement, and the state would do no wrong if it denied it entirely, nevertheless because compensation for the bereaved has something to do with family life, the state cannot give it to spouses without also giving it to cohabitees who behave like spouses.

The result of all this is clear: the rhetoric of European human rights, with its licence to discount democracy in favour of a higher law, is being gently honed into a very handy weapon in the armoury of progressive social engineers. Although any idea of a free-standing right to equality trumping national legislation would quite rightly have been anathema when the Human Rights Convention was being drafted in 1949, they have now managed to introduce something like it by the back door. Indeed, they have discreetly scored not once but twice; with the stress on equality they now also have a chance, again in the name of human rights, to further their aim of gently sidelining marriage and the family. In the brave new world of egalitarian, non-judgmental, value-free Rightsland, it will always be easy to argue that, whatever unenlightened local politicians may think, any privileging of marriage or the traditional family is an outdated failure to treat all lifestyles dispassionately and equally.

You think might this simply an esoteric matter of human rights law of limited interest. But if you do, just remember one name: Elsie Scully-Hicks, murdered at the age of 18 months by an adoptive gay father because he found her a nuisance. In a judgment after the debacle about another child in the same household, Mr Justice Moor made the point that no authority could have refused to allow Matthew Scully-Hicks and his ‘husband’ to adopt Elsie. Very true: but why? There’s a lot of blame in a lot of places, but among others, the European Court of Human Rights needs to take a bow. This august organisation had blithely decided in 2008 that preventing adoption by gay couples amounted to discrimination in and about matters relating to family life and infringed the vital human rights of the would-be gay adopters. As for the children, the state might think it a good thing that they should have a mother and a father; but of course (said the court) the human rights experts knew better. That was nine years ago. Is it too much to ask that one day, even human rights enthusiasts have the humility to realise that one should be careful what one wishes for?

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Andrew Tettenborn
Andrew Tettenborn
Andrew Tettenborn is a professor of commercial law at a well-known UK university, who also teaches in Europe and elsewhere. In the 2001 General Election he stood as Ukip’s candidate in Bath.

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