EU law plays happy families

Heather Swindells QC and Martine Kushner discuss the incorporation of the European Convention on Human Rights into UK domestic law, and outline its effects on family law. Heather Swindells QC and Martine Kushner are barristers at 36 Bedford Row.

On 26 October 1997 the Government published its White Paper and Bill on the incorporation of the European Convention on Human Rights into domestic law.

The principal feature of the Bill is that convention rights will be given direct effect in UK domestic law, so as to enable individuals to enforce the convention rights against the state in our courts at all levels. Under clause 2 the court must take into account convention case law.

The Human Rights Act is, therefore, likely to have a large impact upon family law cases and a working knowledge of the rights guaranteed under the convention, as well as the general principles applied in convention case law, will be essential for all family law practitioners.

The principal rights guaranteed by the convention which concern family law are:

the right to life (article 2);

the protection from torture and inhuman degrading treatment or punishment (article 3); v the protection of the right to a fair trial (article 6);

the protection of a private and family life, home and correspondence (article 8);

the right to marry and found a family (article 12);

the right to an effective remedy (article 13); v freedom from discrimination in the delivery of convention rights (article 14);

the right to property (article 1 of the First Protocol);

the right to education (article 2 of the First Protocol); and

the equality of right of spouses (article 5 of the Seventh Protocol).

Article 1, which requires the contracting state to “secure” the convention rights, has been interpreted as imposing not only negative obligations upon states but also positive obligations to take action to secure human rights against infringements by private persons.

In interpreting the convention a broad purposive approach has been adopted. The convention has been given a dynamic or evolutive interpretation as a “living instrument” which must be interpreted in the light of present day conditions.

It is, therefore, the court's task to gauge when a new social standard has reached a sufficiently wide acceptance to have a determinative effect upon the meaning of the convention.

An example is Marckz v Belgium (series A no.31, para 41(1979)) where the court applied to the status of illegitimate children a new approach which had been adopted by the great “majority” of the contracting states.

Crucial roles are played by the principle of proportionality and the doctrine of a margin of appreciation. As to proportionality, in Soering v UK (1989) the court stated: “inherent in the whole convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental human rights”. Considerations of proportionality, therefore, arise in achieving this fair balance and have a particular importance where the convention expressly permits limitations upon a right such as in articles 8-11.

The “domestic margin of appreciation” means, in broad terms, that a state has “a measure of discretion”, subject to European supervision, when making a decision which involves a convention right.

The convention expressly permits interference by the state subject to certain conditions being fulfilled. These conditions vary but there are four underlying principles which have become established as justifying an interference by the state with a convention right. These are that the interference must be in accordance with the law, serve a legitimate aim, be necessary in a democratic society and not be discriminatory.

In practice, in determining whether there has been a violation of the convention, the following questions are considered.

What is the scope of the right claimed, including positive obligations inherent in the right?

Has there been an interference with the right?

If so, is the interference “in accordance with the law”?

What objectives are sought to be protected by the interference?

Has the state demonstrated relevant and sufficient reasons for the interference?

Having regard to the margin of appreciation, are those reasons proportionate to the limitation upon the enjoyment of the rights claimed?

Following the incorporation of the convention into domestic law, all the courts in family cases will be under a duty to carry out a similar exercise.

The new key requirement in our domestic law will be that public authorities must exercise power in a way which is compatible with the convention. The definition of what constitutes a public authority is wide and includes central and local government. For this purpose, courts and tribunals at all levels are within the definition of “public authority”.

Primary and subordinate legislation must, so far as it is possible, be read and given effect in a way which is compatible with the convention rights (clause 3). This “rule of construction” is to apply to past as well as to future legislation.

The higher courts may make “a declaration of incompatibility” where they are satisfied that a provision of primary or subordinate legislation is incompatible with the convention. Although this will not change the law, which will continue to apply, it will provide the foundations for future change.

It will be unlawful for a public authority to act in a way which is incompatible with the convention rights, unless that would be inconsistent with the effect of primary legislation (clause 6).

A person who claims that a public authority has acted in a way which is incompatible with the convention rights, may (i) bring proceedings against the authority under the Bill or (ii) rely on the convention rights in any legal proceedings (clause 7). The individual will, therefore, be able to argue violation of their convention rights in the domestic courts from the outset.

The court may grant any remedy within its normal powers which is considered appropriate.

The converntion in practice

European case law gives a guide to how the convention will work.

The thinking of the European Court of Human Rights in relation to the convention can perhaps be seen in the recent case of Sheffield and Horsham v UK. Two transsexuals complained that the failure to amend their birth certificates to show they were now of the female gender was a violation of their rights.

They claimed a breach under articles 8 (right to respect for private life), 12 (the right to marry) and 14 (freedom from discrimination). A claim under article 13 was not pursued.

The issue had been considered twice before in Rees v UK (1986) and Cossey v UK (1990), and on both occasions the claims of violation were dismissed, the court considering that the UK “had struck a fair balance between the general interest of the community and the interests of those applicants”.

The European court then went on to consider whether there had been any development since those cases, either in medical science (concerning the condition of transsexualism) or in law (whether a legal consensus was developing in other European countries on the approach to be adopted).

The court found that there was no such development to merit a change of view since the previous cases and that there was no violation (albeit by a narrow majority of 11 to 9).

Nevertheless, while on this occasion there was no violation because of the wide margin of appreciation allowed, the court said that “given the increased social acceptance of transsexualism and the increased recognition of the problems which post-operative transsexuals encountered… contracting states needed to keep that area under review”.

It is, perhaps, difficult to draw consistent strands from these cases. The “margin of appreciation” and the defence of proportionality will inevitably lead to uncertainty – particularly where moral issues are involved. But then family law practitioners have long grappled with changing morality.

The convention merely lays down a set of standards against which certain actions or omissions are to be measured, the application of the convention is likely to lead to a more fluid body of decisions, the precedent value of which diminishes as morality evolves.

A claim which failed yesterday may well succeed tomorrow.