What is in Kelvin's Head?

  • Referendum? On a human rights issue?

    At least one of the front pages of the Scottish newspapers is going to be full of Cardinal Keith O’Brien’s call for a referendum to be held on Equal Marriage – that being the issue that the Scottish Cabinet is due to talk about and hopefully make its mind up about on Tuesday. I think that there are a lot of people who would feel rather queasy at the idea of having a referendum on the human rights of others in society.

    Here’s what I say:

    The voice of Scotland’s Roman Catholic Cardinal is sounding ever more shrill as he appears to be losing the argument. These days, many view Equal Marriage as a human rights issue rather than something that one church should be able to rule out simply because of its own moral code. The time has come for the Scottish Government to legislate for Equal Marriage. If religious people do not want to conduct such marriages then that should be up to them – after all, no religious celebrant is ever forced to conduct any marriage currently and no religious celebrant will be forced to conduct a same-sex marriage if the law changes. The Roman Catholic Cardinal is not the moral arbiter of Scottish society. The decision about Equal Marriage should properly be taken by those elected to take it. The sooner that the Scottish Parliament gets a chance to vote for Equal Marriage the better. Marriage as an institution will be strengthened and reinforced as the gold-standard for human relationships when it is open to same-sex couples in the same way that it is currently open to couples of the opposite sex.

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2 responses to “Human Rights Petition”

  1. Steven Avatar
    Steven

    Kelvin

    I strongly agree with your sentiments and intend to sign the petition. As a practising barrister I can say that the incorporation of the Convention has had a hugely beneficial effect across society – especially in creating a rights aware culture amongst the judiciary.

    I have successfully relied on the Convention to (1) ensure that the state continues to support destitute asylum seekers whilst they are appealing an asylum support decision (2) prevent the removal of a mentally unwell Brazilian amputee who is awaiting further surgery in the UK (3) ensured that those detained under immigration powers are not held in “ordinary” prisons and (4) prevented the deportation of a Turkish national for a crime committed whilst a child. The Convention naturally “benefits” those on the edges of society – whose cause might be unpopular. That does not mean, of course, that it is unworthy. Quite the opposite.

    I have of course relied upon the Convention in cases which stretch the reach of the various articles. That is how the law develops. Judges do not embrace such claims uncritically. Unfounded and weak claims are rejected as such and so the public perception of an “out of touch” judiciary is misplaced. Thank God for the Judges who – if they were to follow the whims of public opinion would “string em up”, “bring back the birch” and “throw away the key”!

    The Human Rights Act 1998 still retains parliamentary sovereignty in any event. This means that Parliament can still introduce laws that are in breach of the Convention. All that a Judge can do when faced with such legislation is declare it to be “incompatible” and that is it. This may create political pressure (especially at a European level) but it means that the “Queen in Parliament” is still sovereign.

    In addition the HRA 1998 has become entrenched as an almost constitutional statute. Repeal or significant amendment would not create less litigation. On the contrary, as the Daily Mail might put it, lawyers would have a “field day” arguing about when a particular right ceased to exist under the ECHR in the UK and the extent to which rights survived repeal or amendment. It would create a legal mess, a constitutional back-step and a political nightmare.

    In fairness though a solicitor did ask me if they could bring a case to challenge a refusal by the police to allow a man more regular smoke breaks on the basis of his Convention rights (he was being questioned for murder)…I reminded the solicitor that the drafters of the Convention had in mind the ashes of Auschwitz when drafting the Convention and advised him to, as they say in Ulster, “catch yourself on!”

    Reply
    1. kelvin Avatar
      kelvin

      Thanks Steven. It us really helpful to have your perspective and some concrete examples.

      Reply

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