How Human Rights Work

You have probably seen the story about the unmarried mother who, the Supreme Court has just decided, should be entitled to claim Widowed Parent's Allowance after the death of her partner. It's a case about the European Convention on Human Rights (which is not an EU thing, but still European). So is this another case of meddling Europeans interfering with our laws? No.

The facts are these Ms McLaughlin and her partner, John Adams, lived together (apart from two short periods of separation) for 23 years until he died on 28 January 2014. They did not marry because Mr Adams had promised his first wife that he would never remarry. (This reason is described by the Court as "commendable" - see [42]). They had four children, aged 19 years, 17 years, 13 years and 11 years when their father died. He had made sufficient National Insurance contributions for Ms McLaughlin to be able to claim a bereavement payment and widowed parent’s allowance had she been married to him. But she was not. And the Widowed Parent's Allowance was only for people who had been married to (or - before you ask - in civil partnership with) the deceased parent.

So is that unfair discrimination? (More precisely, has there been a difference in treatment between two persons in analogous situations by reason of a relevant status, such as marriage, with no objective justification for that difference?) Well, as the Supreme Court put it, "There is no doubt that the promotion of marriage, and now civil partnership, is a legitimate aim". Moreover, the European Court of Human Rights in Strasbourg (ECtHR) has a consistent line of authority that marriage is to be treated differently from co-habitation. Here are some quotations from the ECtHR taken from the judgment at [62]-[63]: "Marriage continues to be characterised by a corpus of rights and obligations which differentiate it markedly from the situation of a man and woman who cohabit"; "However, marriage remains an institution which is widely accepted as conferring a particular status on those who enter into it. The situation of the applicant [an unmarried widow who complained about UK law to the ECtHR in a 2000 case] is therefore not comparable to that of a widow"; "In Shackell [the 2000 case], the court found that the situations of married and unmarried heterosexual cohabiting couples were not analogous for the purposes of survivors’ benefits, since ‘marriage remains an institution which is widely accepted as conferring a particular status on those who enter it’. The Grand Chamber considers that this view still holds true”; and "States have a certain margin of appreciation to treat differently married and unmarried couples, particularly in matters falling within the realm of social and fiscal policy such as taxation, pensions and social security".

So the European law would say that there was nothing wrong with the British law. But in this case, it was the Supreme Court of the United Kingdom that said that the British law was incompatible with human rights, despite the Strasbourg jurisprudence to the contrary.

This is not a Brexit story. But it gives a flavour of what 'taking back control' might mean in practice. The Supreme Court is a bunch of pretty confident people who don't shy away from disagreeing with European judges. But they are not necessarily going to disagree with European judges by being less human rights minded.