The ECHR turns its guns on marriage

Feb 27, 2017 by

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.

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