- Andrew Tettenborn
With human rights magic you can turn an unmarried woman into a widow
A lawyer, says Richard Bayan in his Cynic’s Dictionary, is an advocate hired to bend the law on behalf of a client. For this reason he is considered the most suitable background for entry into politics. Facetious as this may sound, it gets uncomfortably close to the truth. Witness events in the Supreme Court last week: an unmarried woman who wasn’t a widow claimed that whatever English law said, she ought to be entitled to a widows’ allowance.
Siobhán McLaughlin, from Northern Ireland, lived with a man for twenty-three years. She had four children by him. They never married because he had promised his first wife not to remarry. He died. She claimed a Widowed Parent’s Allowance. This was refused on the understandable ground that the law limited such allowances to widows and you couldn’t be a widow unless you’d been married in the first place.
In its infinite wisdom, the Supreme Court decided that she ought to be entitled to the benefit. It went on to declare that the law denying it on the grounds of her non-marriage was incompatible with her human rights (and apparently her children’s) to family life and to the peaceful enjoyment of possessions.
How so? On any ordinary reading, nowhere does the European Convention on Human Rights give you a right to social security, let alone a widowed parent’s allowance, whether you are married, unmarried or living in a Jedi union. Nor does it say anywhere that benefits that go to married people must go to unmarried ones as well.
Nowhere does the European Convention on Human Rights give you a right to social security.
And for that matter, no-one was denying Ms McLaughlin the right to any family life she wanted, or for that matter taking away any of her possessions: the state was merely declining to give her taxpayers’ money in the first place, but that’s rather different.
But then, dear reader, you clearly don’t understand the incredible magic of human rights law. The idea of reading the Convention as meaning what it says is so mid-twentieth century!
The actual reasoning of Lady Hale (who gave the leading judgment, which to do her credit impeccably followed the curious Strasbourg-inspired interpretation of the Convention) ran on these lines. Article 14 required all rights under the Convention to be granted independently of a person’s “status.” This applied not only to rights proper, but to any advantage with a vague connection to a particular right (and which, in human-rights-legal-speak, thus came within its “ambit”).
The decision whether to giving someone a parent’s benefit had a connection with family life, and also with their and their children’s possessions – or at least their possible ones even if they didn’t actually have them yet. Given that this was the case, there could be no discrimination on grounds of status – and yes, you’ve guessed, marriage and the legitimacy of children are statuses – without what was seen by human rights lawyers as a good, rational, twenty-first century reason.
Could the lack of marriage amount to such a reason? Perish the thought! All that was relevant was the interests, the simple, physical, economic interests – of the would-be widow and her children; marriage be d***ed. End of case.
Now, if you don’t grasp this reasoning – if you think it would shame a fourth-form debater and is as full of holes as the colander you used last night to strain your vegetables – don’t worry: you agree with most people in this country. It’s not your fault that you’re not a sophisticated human rights lawyer.
If ever a case showed that what we need after Brexit is a HRExit – a Human Rights Exit from the European Convention on Human Rights – this is it. The process isn’t difficult: under Art.58 all you need do is give six months’ notice. No negotiations needed – Mrs May, please note.
Why? It’s not simply about the way human rights lawyers regularly manage to twist the Convention to say something it never would have been regarded as saying in 1950 and which no-one with a grasp of basic English could regard it as saying even in 2018.
If ever a case showed that what we need after Brexit is a HRExit – a Human Rights Exit from the European Convention on Human Rights – this is it.
More to the point, stand back a moment and think why we have human rights at all. The theory of human rights is that they are really important rights: rights so vital that any country that doesn’t recognise them deserves to be regarded as beyond the pale of civilised polities.
This is the only possible justification for giving such rights an end-run around the democratic process, which is what the European Convention essentially does, by saying that they must be given effect even though democratic legislatures have declined to do so.
Now, this is understandable with the right against, say, state murder, mass imprisonment or torture. But limiting a widowed parent’s allowance to widows? This might be a bad idea: the point is arguable. But can anyone really stand in the public square and say with a straight face that its is something so heinous that any state that gives effect to a decision by a democratic legislature to do so has forfeited the right to be called a civilised state? The idea is preposterous.
However, there’s an even more serious point lurking in the background. Read the judgments, and they sounds like a lecture given by a progressive adult educational lecturer to those who are – well, not quite at her intellectual level, and might not understand that marriage is a childish obsession that grown-ups have had the intelligence to see as an obstruction to progress.
This isn’t surprising. You may not have noticed, but slowly and ever so stealthily, human rights law is mounting a discreet take-over bid for large swaths of our social policy. It’s not only matters of marriage. The same thing is happening on privacy as against freedom of the press, not to mention immigration as well. And well it might.
Human rights lawyers and their useful acolytes, whether in Richmond, Islington or elsewhere, have one thing in common: they regard ordinary voters as far too likely to reach what they see as the wrong answers. How much more convenient to have the really important questions decided by a comfortably-off coterie of the Euro-great and the Euro-good who think like them.
Democracy is all very well: but please, not on anything that seriously matters. That’s far too important for the plebs to be allowed to take the decisions.
(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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