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Andrew Tettenborn: The ECHR turns its guns on marriage


Last week, as noted by Harry Benson, a silly and rather childish human rights complaint reached the Court of Appeal. The claimants were a heterosexual couple who didn’t fancy either marriage or simple shacking-up. Their claim? Denying them a third option of a civil partnership when this was available to same-sex couples infringed their human rights. The Court of Appeal threw the claim out. Good news? Up to a point, Lord Copper (meaning, as readers of Evelyn Waugh’s Scoop will be aware, a polite form of no). Let me explain.

Most importantly, while technically the complainants lost, in all but name their claim, for all its silliness, succeeded. The only reason they failed was that the court graciously allowed our elected representatives some leeway in the matter – not, mind you, in the arrangements they made available to people in the position of this petulant pair (whose claim, as I have just said, was held justified), but simply in how long they took to change the law to bring it into line with the demands of the rights establishment.

In human-rights-speak, the State had what is called a ‘margin of appreciation’ – in other words some discretion as to how it accorded people their human rights. In deciding how to afford equality of treatment between the kinds of arrangement available to same-sex and opposite-sex couples, it was open to the State to spend some time doing its sums, research, etc before coming up with an answer (eg allowing everyone a CP, or abolishing CPs altogether). The decision of the majority of the court was that, yes, there had been an infringement of the human rights of this couple in principle, but the State hadn’t run out of its allotted time to decide how to deal with the problem.

More interestingly, the case gives a fascinating peek into the mindset of human rights lawyers. Imagine this conversation (lawyer first):

– This claim is correctly based on Art.8 of the ECHR (“Everyone has the right to respect for his private and family life”).

– OK. So this means the State must now, as a matter of fundamental human rights and independently of what its elected legislators think, give all cohabitants the choice not only of “married or not married” but civil partnership too?

– No.

– But I thought you said the claim was justified?

– You don’t understand: the problem is that some other people could have had a civil partnership.

– But you said the claimants didn’t have a human right to civil partnership. If I don’t have a right to something, how come my rights are infringed if somebody else gets it?

– (Sigh) Listen. We have this word ‘ambit’. You don’t have a human right to enter into a civil partnership. But it still falls within the ambit of family life (you know, marriage etc). It follows that for this reason it must be given to everybody or nobody.

– So if the State reduced the rights of same-sex couples by denying them the option of a civil partnership, this indignant couple’s human rights claim would vanish in a puff of smoke?

– Yes, actually.

– Another point. Human rights are about interests so important that we can’t trust elected governments with them?

– Yes.

– The claimants here had the choice of living together married or unmarried. Do they suffer any harm from not being allowed a piece of paper marked “civil partnership” rather than “marriage certificate”?

– No.

– Sorry?

– Ideas like harm are outdated. What matters is that they really wanted the civil partnership.

– The civil partnership they don’t have a human right to have?

– Yes.

If you think this sounds like something out of Alice in Wonderland, don’t worry. You’re in good company: so do I. But I can assure you it’s exactly how the ECHR is interpreted in Strasbourg, and therefore has to be interpreted by our judges.

Ironically, on the same day as the court’s decision all European governments were further instructed to hurry up, cease privileging marriage and please, please avoid any suggestion that some kinds of cohabitation might be more encouraged than others. The source of this bullying? The Council of Europe’s Commissioner for Human Rights, a well-paid, supremely virtue-signalling gentleman named Nils Muižnieks whose cocooned CV beautifully sums up the brave new European human rights world we now live in.

A Latvian-American, before being chosen for his present job by the achingly worthy if talkative Council of Europe Parliamentary Assembly, he did stints as Director of the Latvian Centre for Human Rights and Ethnic Studies (1994-2002), was parachuted in as a Latvian minister for anti-discrimination, minority rights, and civil society development (2002-2004), and subsequently worked as Director of Advanced Social and Political Research at the University of Latvia (2005-2012).

I have no doubt that he is a very decent and well-meaning man: but you have of course noticed what isn’t there. He has never faced a popular election for anything so much as public rat-catcher. And yet it is comfortable established apparatchiks like this to whom the European human rights machine would like our elected governments to give up large areas of vital social policy.

This is one more reason why pressure must be kept up on Theresa May to ensure that, as soon as Brexit is properly under way, she takes in hand the extraction of this country from the whole apparatus of the European Convention on Human Rights and the enactment of an up-to-date and properly-modulated British Bill of Rights.

(Image: James Russell)

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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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