Strasbourg, the House of Lords or Elected Politicians: Who decides about rights after Re P?
| DOI | http://doi.org/10.1111/j.1468-2230.2009.00770.x |
| Date | 01 September 2009 |
| Published date | 01 September 2009 |
patiblewith the prohibition of inhuman and degrading treatment,notwithstand-
ing the high likelihood of the irreversible tragic e¡ect of acute physical and psy-
chological su¡eringand early deaththat wouldmost probably follow.The present
article suggested that the judicial reasoning in the case su¡ers from several short-
comings.The mostserious concern,to conclude,is that the sad e¡ects of thisjudg-
ment will not only become evident in subsequent case law, where there is a
chance that authorities and courts will have to explain less any decision to leave
other desperate needy unprotected.The consequences will be wider, for the judg-
ment of the majorityof the Grand Chamber set a precedent that undermines the
belief that human r ights lawhas a role to play for those most i n need of it. NvUK
constitutes a statement that the dignity of the poor and needy foreigner amongst
us does not carry equal worth to ours, who are privileged enough to live in a¥u-
ent communities and who are not prepared to make an e¡ort to rescue them, even
at a relatively low cost.
Strasbourg, the House of Lords or Elected Politicians:
Who decides about rights after Re P?
Aileen Kavanagh
n
In Re P, the House of Lords decided that art 14 of the Adoption (Northern Ireland) Order 1987
which prohibited unmarried couples from being eligible to adopt, violated articles 8 and 14 of the
European Conventiono n HumanRights. Apart from its signi¢cance for adoption lawand anti-
discrimination law, Re P is also important in understanding the constitutional role of the courts
under the Human Rights Act 1998 (HRA). Re P recognizes that if Strasbourg has determined
that an issue falls within states’ margin of appreciation, this does not prevent municipal courts
from enforcing those rights.This comment will discuss the meani ng and scope of the courts’
obligation under section 2 of the HRA, the status of the rights protected by the HRA and the
appropriate role of the courts in a rights dispute which is subject to moral, social, religious or
political controversy.
INTRODUCTION
Cases of immense constitutional importance often emerge from unassuming
factual beginnings. So it was with Re P.
1
This case concerned article 14 of the
Adoption (Northern Ireland) Order 1987
2
which prohibited unmarried couples
n
Reader in Law, University of Oxford.For helpful feedback, discussion and comments on Re P,Iam
grateful toBrice Dickson, Mark Bell, Jonathan Herring, an anonymous reviewerand the audience at a
seminar on this topic at the School of Law, Queen’sUniversity Belfast on March11th 2009.
1 [2008] UKHL 38.
2 SI1987/2203 (NI 22),hereafter ‘the1987 Order’.
‘Who decides about rights after Re P?’
828 r2009 The Author. Journal Compilationr20 09 The Modern LawReview Limited.
(2009) 72(5) 815^843
from adopting in Northern Ireland.
3
An unmarried couple from Northern
Ireland, who had lived together for over 10 years, claimed that this Order was
incompatible with the European Convention on Human Rights (ECHR).
The woman had a 10 year-old childfrom a previous relationship which the couple
had raised together and now wished to adopt so that the man could become the
legal father. They argued that their ineligibility to adopt under the 1987 Order
violated their right to respect for family life under Article 8 ECHR in conjunc-
tion with their right to non-discrimination underArticle 14 ECHR. By a major-
ity of 4:1, the House of Lords held that the blanket rule contained in article14 of
the Order which automatically prohibited the couple from being eligible to
adopt simplybecause th eywere unmarried, was an unjusti¢able interference with
their Convention rights.
4
It followed that it was unlawful forthe Family Division
to reject the appellants as prospective adopters and article 14 of the 1987 Order was
not applied.
5
The upshot of Re P is that unmarried couples in Northern Ireland
are no longer ineligible to be considered as adoptive parents.
6
Clearly, this dec ision has important implications for adoption lawi n Northern Ire-
land. But Re P also raises issues of fundamental importance for the constitutional role
of the courts under the HRA 1998. In particular, the House of Lords in Re P took the
opportunity to £esh out the meaning and implications of section 2 of the HRA
which provides that when determining whether legislation is compatible with Con-
vention rights, the courts‘must take into account’
7
any relevant Strasbourg jurispru-
dence.
8
Although there was no Strasbourg authority directly on the issue of whether
di¡erenceoftreatmentonthebasisofmarriagewouldconstituteunlawfuldiscrimi-
nation for the purposes of adoption, there was Strasbourg authority on discrimina-
tion against same -sex couples as potential adopters.
9
Extrapolating from this case law,
threeoftheirLordshipsinRe P thought that it was ‘not at all unlikely’
10
that Stras-
bourg would ¢nd the 1987 Order to be incompatible with Convention rights. How-
3 Adoptionby unmarried couples is now permitted in England under the Adoption and Children
Act 2002, s 50and i n Scotlandu nder theAdoption and Children (Scotland) Act 2007,s 29.
4 n1 above at [18] (Lord Ho¡mann).
5 The case was referredback to the Family Division of the High Court wherethe couple’ssu itabil-
ity to adoptwould be considered in light of the best interests of the child, see n 1 aboveat [38].The
1987 Order was secondary, not primary, legislation as de¢ned in HRA, s 21(1), and could be dis-
applied (or,as Baroness Hale put it,‘disregarded’, n 1above at [116])if found to be i n contravention
of Convention rights, see n 1above at [3]. Although s.3 HRA, can be applied to primarya nd
secondary legislation, no one argued that HRA,s 3 could be applied to ‘alter the plain language
of art 14 of the Adoption Order’before the House of Lords in Re P n1aboveat [70].
6 The Civil PartnershipAct 2004, s 79(12)provides that civil partners would be eligible to adopti n
England, Scotland andWales, but not in Northern Ireland. However,it did not amend art 14 of
the 1987 Order to allow registered civil partners jointly to adopt,although it did amend art 15to
exclude a civil partner from making a sole adoption. Their Lordships in Re P thought that this
must havebee n ami stake,since not allowing civil partners to adopt is contrary to ECHR,art 14,
see Re P n 1 above at [40] (Lord Hope); [69] (Lord Walker); [101] (Baroness Hale); [143] (Lord
Mance).
7 HRA, s 2(1).
8 For an analysis of s.2 HRA, see further A. Kavanagh, Constitutional Review under the UK HRA
(Cambridge:CUP, 2009) 144^167.
9Fret te vFrance (2002) 38 EHRR 438; E.B.vFran ce (2008) 23 BHRC 741;se e further G.Letsas,‘No
Human Right to Adopt?’ (2008) 1UCL Human Rights Review13 4.
10 n 1above at [27] (Lord Ho¡mann);[53] (Lord Hope);[125] (Lord Mance).
Aileen Kavanagh
829
r2009 The Author.Journal Compilation r200 9 The Modern LawReview Limited.
(2009) 72(5) 815^843
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