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Lady Hale ponders the Human Rights Act by Cameron Paterson

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.

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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  1. george says:

    We can all see the justification of using human rights law to admonish other states and their wrong doings such as Turkey’s recent treatment of the press in regard to its recent protest. But when it comes to criticism of the maltreatment of individuals by the British government then it is seen as, “surely not us. we are not capable of acting in such a way.”
    The human rights act and convention rights are slowly but surely lifting the lid on family law in the English courts. All the iniquities of injustice will surely be exposed or quickly disappear when secrecy is lifted. There will be many adoption cases that will fail the article 8 rights.

    I hope the lifting of the secrecy laws will be retrospective and allow the public to examine terrible past injustices that have thus be bound to secrecy to come to light. Although I think it will be an expensive exercise in terms of compensation for past misdeeds

    • keith says:

      Compensation comes with the territory,
      its the blatant violation of human rights perpetrated by Local authority staff, family court judges and other so-called professionals that requires investigation.
      Professionals found to have broken the law and violated human rights should have assets removed to help pay the compensation going to the ones whos lives they have permanently damaged.

  2. Paul says:

    I can answer the learned Lady’s question in two seconds. This country played its instrumental role in the foundation of human rights law at a time when the world had just witnessed millions of Jews, Polish subhumans- the Untermensch – and countless gypsies, disabled victims and divers others paying the ultimate price for the absence of such a formal recognised code of basic rights. Contrast that today, when said code now in force is daily abused by murderers, rapists, child pickpockets and divers other criminals at the expense of ordinary UK citizens and you can readily see why law must move with the times. In reducing the issue to one of argument over relative minutiae of cases mainly irrelevant to the greater issues of the day, Lady Hale is really ducking the larger issue which is that the balance struck between an individual’s rights and society at large is too often weighed in favour of as criminal who ought properly to be deported and never come back.

    Lady Hale, if Mike Tyson can be refused entry to the UK because of his historic rape conviction, then foreigners here who have abused our laws to rape and murder can be excluded too. If necessary, put their children up for adoption but by no means let them stay in this land.

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