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)

Andrew Tettenborn

  • weirdvisions

    I seem to recall May’s boss promising to withdraw the UK from the anti-democratic ECHR mire. Instead we are still up to our necks in dense, suffocating EU mud. We hear a lot about the “single market” and the “customs union” but very little about dumping the ECHR. Will we still be bound by it if the political will is too weak to do a 180 or will Brexit release us from it automatically?

    • choccycobnobs

      Isn’t our Supreme Court made up of judges with EU leanings and having a vested interest in remaining part of the EU and its attendant ECHR? therein lies part of the problem.

      • weirdvisions

        Another attack on democracy that Blair should be held accountable for.

        • Reborn

          Not forgetting Mrs Blair

    • Reborn

      Decent politicians of both major parties should wish to take
      us out of the Blairs’ vile ‘Human Rights’ Act.
      The sickest of many sick cases was the decision not to deport
      a suspected terrorist to Italy for trial, as the Italians might torture him.
      This, despite Italian “judges” (usually impractical academics),
      sitting in judgement in the ECHR.
      Alongside Turkish & Russian ones.

      • weirdvisions

        Speaking of Italy let’s not forget the Italian born murderer of headmaster Philip Lawrence, who could not be deported back to Italy after serving time for murder because he couldn’t speak Italian.

        ECHR, the criminal’s friend and the victim’s enemy.

        • Reborn

          To my shame I had forgotten that scumbag.
          There are so many —

    • James Chilton

      Robust comment. ✓✓✓

    • Alaric the Vis

      The human rights convention has nothing to do with the EU. Russia has signed the convention. We’d have to pull out and only dictatorships have ever done that, so there’s a lot of reluctance. We could revoke the convention’s incorporation into British law, but that would just mean people had to take their case to the court in Strasbourg. A bit of a pickle, which is probably why the promise to pull out has been quietly dropped.

      • weirdvisions

        We seemed to manage okay before Blair hitched our wagon to this lame beast and allowed his wife and lawyer pals to make a killing.

        Its main purpose seems to be the enrichment of lawyers and to act as a vehicle for promoting minority socialist causes to the detriment of ordinary folk.

  • Dustybookwyrm

    When did Right Wing stop meaning Establishment government by appointment?

    When did Left Wing stop meaning counter-culture opposition to goverment by appointment?

    Right wing used to mean the monarchy, the army, the judiciary, the police, and government by appointed officials – democracy could go whistle.

    Left wing used to mean opposing the monarchy, the army, the judiciary, and the police, and demanding government by popular mandate.

    • Reborn

      The terms are totally irrelevant today, much like “racism”
      they are meaningless due to constant misuse.
      Although the left still hate the monarchy & the armed forces,
      it also hates the indigenous proletariat , hates Jews & has
      become the official party for Hitler’s favourite religion.
      The problems go back at least 50 years when plenty of decent
      people thought it was virtuous to be leftist, even forgiving
      Stalin’s & Mao’s over enthusiasm.
      The right were associated with Hitler, Franco etc, who led hideous regimes, but whose body count was smaller than
      Stalin’s, let alone Mao.
      The extent of this youthful self deception is still visible today.
      Andy Warhol’s banal prints of Chairman Mao are highly
      valued. He made none of Hitler, Mussolini, de Valera,
      the Croation mass killers, or even the Portguese dictator, whose name temporarily eludes me.

      • Dustybookwyrm

        My point though is that people claim to be Right now have the values of the Left.

        • Reborn

          In many ways you are correct.
          It is hard to conceive of a more wasteful,
          intrinsically leftist organisation than the
          (international) Health Service.
          Beneath all the leftist values, so celebrated at our silly Olympic Opening ceremony, there are many highly overpaid officials, each with his own
          dacha as well as a highly desirable urban residence.

        • James Chilton

          True. This point about the convergence of politics is not understood all that widely.

  • Uusikaupunki

    Could someone (I mean this in all seriousness) explain the difference between marriage and “civil parnerships”? I ask because some years ago a colleague who was co-habitating asked why he and his female partner could not have a civil partnership instead of marriage.

    After looking up all the whys and wherefores I came to the conclusion it was “marriage” in all but name, for our dissatisfied homosexual community, as a ploy to shut them up….
    So….what is the difference?

    • Dustybookwyrm

      Civil Partnerships were a form of marriage just not called marriage that were invented for same-sex couples when they were not allowed to be married.

      It is essentially a fiddle, creating a form of civil marriage just under another name.

      With the change in law to legalise same-sex marriage the Civil Partnership is rendered obsolete as both can now access full civil marriage.

      • Little Black Censored

        Under what laws can a CP be dissolved. Presumably there is no such cause as evidence of adultery.

        • Dustybookwyrm

          Yes, that’s the bizarre thing. Adultery in law is only ever heterosexual. Homosexual acts do not count as adultery.

          It will be interesting to see whether that is cleared up at any point or whether the desired end is already achieved….

          • Tricia

            It cannot be “cleared up” as you put it. The Same Sex Marriage Act is a travesty of “when is a marriage not a marriage”. A marriage has to be consummated or it is null in law. A same sex couple cannot consummate, therefore, it is not a marriage. Our wonderful leaders got around this by stating that a “same sex couple cannot consummate but are married” but “a heterosexual couple must consummate or are not married”. If you have consummated you can commit adultery (remember good old Bill Clinton claiming Monica was providing service but it was not adultery), if you have not consummated you cannot. Marriage is a sexual Union which is open to life. Civil partnership is a legal document to ensure legal rights over property and pension.

          • James Chilton

            One of the grounds on which you can get an annulment is a refusal or the inability to consummate the marriage. This applies only to heterosexual couples. I don’t think it’s null in law if both husband and wife agreed never to consummate their marriage.

    • Alaric the Vis

      There’s no definition of adultery in same sex relationships.

  • Colkitto03

    I cant understand why the MSM does not highlight the horrendous divorce rate among Lesbian couples. It 2-3 times higher than heterosexual partnerships/marraiges. It is also significantly higher than Gay male marriages.
    Maybe its because the domestic violence rate is by far highest in lesbian relationships?

    Why cant these women live together in peace and happiness?
    Maybe we need a media driven campaign to highlight the issues and support these ladies.

    • Busy Mum

      Women find it difficult to live together in peace and happiness – that’s why they need men.

      • Sheik Rhat el Anrhol

        To provide sexual services, mend things and find lost spectacles.

      • Colkitto03

        When I was dating my wife in London 25 years ago she was in the process of buy a flat with a female friend she had worked with for several years. Im not exaggerating but within a week of moving in they despised each other. I bought the other lady out after six months.
        There can only be one woman in charge in any household.

        • Busy Mum

          As a queen bee in my own hive, I can well believe that you are not exaggerating 🙂

    • John Rollins

      I live next door to a lesbian couple. They are always rowing and fighting.

    • Craig Martin

      100% of lesbian divorces are initiated by the woman.


      • Colkitto03

        LOL, but who gets custody of all the red and blue hair dye?

    • Tricia

      I read a Canadian report that after 10 years of same sex marriage, the rate of divorce for lesbians is 80%. Sex education in schools is now pornography as it has to offer the full spectrum of information. Many parents are home schooling.

      • Colkitto03

        That is shocking, it would suggest that Lesbian marriage has some very fundamental flaws.

    • Rob

      I heard on radio 4( yes i know its antiquated ) that the same sex marriage of women( read lesbian) have the highest rate of affairs( adultery) which might explain the divorces( as well the DV rates)

  • We need a system similar to that in France where the legal part of a relationship takes place at a registrar office resulting in a couple having a Civil Partnership. If the couple then want a religious ceremony, they arrange for such at a church of their choice which is prepared to carry it out.

    • Rob

      already happens for most Muslims in the UK.
      marry first in the registry office, the one and only legal marriage,
      show marriage certificate to mosque( they want to see proof first) and then they will perform the religious ceremony

      • It seems logical to me. It’s then up to the Church or whatever organisation they want to provide a religious or other ceremony according to the couple’s wishes.

  • Andy

    Simple solution is for the State to ‘hand back’ Marriage to the Church. Everyone has a civil partnership, but if you want to be married you have to be a man and a woman and do it in Church. The State had no business redefining what marriage is just to please a few puffs in Soho.

    • James Chilton

      Spot on.

      • PierrePendre

        Not spot on, off target. The modern State regulates marriage because it is a legal contract and as such is overseen by the law for the protection of both partners, mainly women because their child-bearing role makes them more likely to be financially dependent. Whether divorce is made easy or difficult, it requires the arbitration of a judge to ensure that the legal rights of both parties are respected and it would be intolerable if this were not the case. While churches have the right to marry people, only the state has the authority to legally end the contract they have made between them. It would be unusual if the state did not also reserve the right to decide who could marry whom. Church marriage itself is in any case a life long contract, akin to a gentleman’s agreement, in the eyes of God. The French state recognises civil partnerships between couples regardless of their sex and gives no legal recognition to any church ceremony precisely because marriage is a matter for the state and the state alone.

        • James Chilton

          Couples who marry in church sign a register and receive a certificate by which the state recognises their marriage as a legal contract.

        • paul parmenter

          “Whether divorce is made easy or difficult, it requires the arbitration of a judge to ensure that the legal rights of both parties are respected and it would be intolerable if this were not the case.”

          Not taking issue with this statement at all. But just wondering if those myriads of divorced men who have found themselves homeless, cut off from contact with their children and still paying large chunks of their income to exes who hate them, all by the order of one of these judges, would consider that their legal rights had been “respected”. Or that what the courts had done to them was in any way “tolerable”.

          • 2cyar

            “… all by the order of one of these judges, would consider that their legal rights had been “respected”.”

            They were respected….because he doesn’t have any.

          • PierrePendre

            Easy, no fault divorce is inevitably arbitrary and ticks the requisite administrative boxes. The state has neither the time nor the resources to give an in-depth court hearing to the reasons for every marriage break up now that these are commonplace. The received wisdom is that children are better off with their mothers who need homes and money to raise the offspring of these failed marriages and therefore get the property and alimony. That may be tough on men in some cases but there is no more efficient option for the state which wants to minimise its own responsibilities. The arrival of easy divorce coincided with the rise of the feminist state but the bureaucratic bias against men would have been an inevitable consequence anyway. I agree that some men are victims of the system but so long as the law remains biased in favour of women, that will continue to be the case.

  • David

    Hear hear !
    We must escape from that European politicised “court” !
    Mind you, we also have to get politics out of our own judges, not to mention the utterly dreadful CPS !
    To return to a true rule of (unbiased) law, we have along way to go !

  • wisestreligion

    Interesting to hear Peter Tatchell on yesterday’s BBC Big Question

  • Owen_Morgan

    I’m not sure you have this right. What about the case of a pair of ladies, both widowed, who have pooled their resources to buy a house together? It stands to reason that one will pass away before the other and that the other will then be saddled with tax assessed on all they jointly possessed. They have only ever been married to their husbands and would not remotely be covered by the Civil Partnership rules. With or without CP, why shouldn’t such arrangements bring protection, such that the jointly owned property would not attract inheritance tax, if the beneficiary were the surviving resident?

    I’m all for severing ties at once with the ECHR, but I could never stand, either, the sneerier-than-thouness of George Osborne and David Cameron, who virtue-signalled frantically to the BBC and the Guardian, while leaving gaping logical loopholes in the law.

  • 2cyar

    What would be ideal, imo, is if marriage laws were scrapped and replaced with CP’s in which all of the contract terms were negotiated by and agreed to by the signatories independently from the state.

  • grandpa1940

    “and the enactment of an up-to-date and properly-modulated British Bill of Rights.”

    Knowing our Parliament quite well, and having watched the complete and utter bollox created by that same Parliament with most of the so-called ‘up-to-date and properly-modulated’ Legislation produced over the past half-century; why don’t we opt for a set of rules based upon the American version, namely the first Ten Amendments to the American Constitution: which itself has proven quite adequate in its service to the American people?

  • It sounds like powerful people using sophistry and word games to justify their meddling in the actual human rights of everyday people!