Wednesday, 5 June 2013

UK Marriage (Same Sex Couples) Bill - references to the ECHR

In my post on Monday I suggested that arguments about the 'dangers' of the European Court of Human Rights would be central to the Second Reading debate of the Marriage (Same Sex Couples) Bill in the House of Lords. This was certainly the case, and here are a few of arguments made by noble Lords. 

There were those who argued that neither the European Convention on Human Rights or the European Court of Human Rights presented any threat to religious organizations who did not wish to solemnise same-sex marriage:

Baroness Stowell of Beeston stated that '[s]ome people have [...] expressed concerns that the religious protections in the Bill could be successfully challenged, whether before domestic courts or the European Court of Human Rights. We are confident that the protections are robust and effective'. 

Baroness Kennedy of The Shaws gave a comprehensive overview of the principles established in respect of religious freedom under the Convention and concluded: 'I say that, having reviewed the law, Article 9 of the European convention—which protects religions—is about the needs of community and society, and how they have to be balanced with individual needs. In doing that, the churches can have the protection that they have so earnestly sought'.

Lord Pannick concurred: 'there [is] no realistic possibility whatever that any court, domestic or European, would compel a church or other religious body to conduct a same-sex marriage ceremony contrary to the doctrines of that religious faith'.

However, these guarantees did not satisfy those who, largely against the Bill in principle, argued that litigation in the Court would ultimately compromise religious freedom.

Lord Edmiston argued that '[d]espite all the assurances that religious bodies have been given, the European courts can eventually overturn them. I am unconvinced by some of the assurances about the locks that are to be put in place'.

Lord McAvoy also stated: '[n]o one from the Government will give the absolute guarantee that the Roman Catholic Church, for instance, will not be prosecuted—that someone will not take a case to the European Court and win it. Where is the guarantee?' 

Lord Faulks, who argued that the Court should be 'very slow indeed to interfere' in UK law but as shown by the case of 'prisoner voting' often is not, stated that although the Court had 'shown considerably more reluctance to interfere in areas of life where religious freedoms are involved' that he had 'some residual anxiety because the convention is what is called in Strasbourg a “living instrument” and there is nothing to prevent the court taking a different view in the future'. 

Then there was the possibility, Baroness O'Loan argued, of homosexuals going to the Court to complain about some of the differences established by the Bill. For example, '[i]f a same-sex marriage does not have to be consummated, surely a partner in an opposite-sex marriage who wishes to remain married to his or her partner despite the fact that the marriage has never been consummated would have the right to bring a challenge in the European Court against the Government for discrimination in not according to them the protections afforded to those in same-sex marriages'.

Finally, there were those who took the opportunity to engage in some straightforward condemnation of the Court in respect of its judgment in 
Othman (Abu Qatada) v. United Kingdom

Lord Singh of Wimbledon argued that 'Government assurances that their lawyers see little likelihood of European human rights legislation being used to force people to act against their consciences inspire little confidence when we remember that the same lawyers said that there would be no problem deporting a certain Muslim cleric'. 

Similarly, Viscount Astor stated: 'I have listened to those who claim that the European Court of Human Rights might overrule British law. If it does, I would be delighted, as then we could all agree to leave this outdated and flawed institution that has allowed so many dangerous terrorists to remain in this country'.

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