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Wednesday, August 13, 2008

judicial activism is in the house

This is slightly off-topic, because it relates to the ECHR rather than the EU.

The Times Law Report today on the recent 'sham marriges' judgement (from 30 July) is really striking. It's relevant to the EU because it is a classic example of the unintended consequences that so often flow from setting out positive rights.

To cut a long story short, the UK has had a statutory scheme requiring the permission of the Home Secretary for marriages by people are were subject to immigration control, or illegal entrants - basically to avoid people arriving illegally and then procuring a sham marriage purely in order to stay.

However, the ECHR sets out a right to marry. It sounds fair enough, because:

A national authority might properly impose reasonable conditions on the right of a third-country national to marry in order ascertain whether a proposed marriage was one of convenience and, if it were, to prevent it. That was because article 12 existed to protect the right to enter a genuine marriage, not a right to secure an adventitious advantage by going through a form of marriage for ulterior reasons.

So far, fair enough. But the problem is that allowing people to marry first and requiring the burden of proof to be on the authorities to investigate every single marriage is totally unworkable in practice.

But this is the law, so practical considerations need not apply...

It might be that persons in the categories specified in the Instructions were more likely to enter a marriage of convenience than others and that might be material in investigating genuineness but the section 19 scheme did not provide for or envisage any investigation at all, because it would be too expensive and administratively burdensome.

Subject to the discretionary compassionate exception, the scheme imposed a blanket prohibition on exercise of the right to marry by all in the specified categories, irrespective of whether their proposed marriages were ones of convenience. That was a disproportionate interference with the exercise of the right to marry.

Lady Hale delivered a concurring opinion; Lord Rodger, Lord Brown and Lord Neuberger agreed.

So the law will be completely changed. The Home Office is having kittens.

Do you think politicians saw this coming? This sort of case is the reason why we are sceptical when (as in the case of the EU Charter of Fundamental Rights) politicians claim that it is "just a load of words" and that they are sure it "won't change national law".

Its odd that despite the fact that so many politicians seem to be lawyers by background, the reasonings of activist judges always seems to take them by surprise...

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