We have finished an overhaul of the Convention rights pages to reflect recent political and legal developments since they were last reviewed. The most important of these is the vote to leave the European Union and what implications this might have for the UK’s obligations under the European Charter of Fundamental Rights and Freedoms. For the moment I have left in place the editorial material matching each of the Charter rights with the Convention rights but the Charter and the role of the ECJ in UK legal affairs may be one of the first features of the post-Brexit landscape to change (see Marina Wheeler’s post on how that court might have overstepped the mark with the Charter, and David Hart’s discussion on the topic of ECJ muscle-flexing here, here and here).
The task of updating the discussion on individual rights is in itself revealing. No progress has been made on the right to die with dignity since Diane Pretty took her case all the way up through the UK courts to Strasbourg, although we might draw some comfort from the decision by the Appeal Court in Conway to allow him to proceed with a challenge to the ban on assisted dying.
Arguments based on the prohibition on degrading treatment under Article 3 may be less effective than they were in deportation cases as signatory states’ medical and social services become more pressed; foreign nationals cannot oppose removal orders on the basis that welfare in destination states is inadequate.
The expansion of Article 4 to cover human trafficking is a bleak reflection on modern life; there was a time that the prohibition on slavery felt like something of an anachronism. But now that provision has had to be dusted off to persuade governments to double down on human exploitation. On the other hand, efforts by the UK government to control this trafficking by obstructing forced marriage arrangements have been frustrated by Article 8.
When it comes to the concept of the “family”, the formerly expansionist Strasbourg Court is having difficulty finding a place to stand. Transsexuals have no right to adopt under this provision, although more recently an argument that the refusal of adoption to a lesbian applicant breached her right to family life succeeded before the Grand Chamber. But the right to marry under Article 12 remains within its orthodox box, entitling only those individuals of opposite biological sex. Neither Article 8 nor Article 12 have prevailed as rights of access to modern reproductive technology. It seems that for the time being at least the Convention authorities prefer to leave people to prosecute their own search for reproductive success without the help of enforceable civil rights. But Article 14, which prohibits discrimination, has been found to cover discrimination on the basis of genetic disease (haemophiliacs who suffer from thalassemia). The Court reached this conclusion despite the fact that Article 14 “does not mention health, genetic characteristics or handicap amongst the bases upon which discrimination is prohibited.” The list of motivations for discrimination under Article 14 is “not exhaustive”, and therefore genetic disease constitutes a prohibited ground for discrimination derived from factors “external to the Convention, such as the EU Charter on fundamental rights and freedoms” ((Article 21). This ruling is interesting not only because the Court chose to rely upon the EU Charter of which prohibits discrimination on “genetic features”); it reflects the explosion in genomic data and the ability to diagnose susceptibility to future disease, based on DNA. Life insurance companies, mortgage lenders and employers take note.
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