This article appears in the November 2001edition of the Catholic Medical Quarterly
Whose Rights Are They?
The creed of human rights has now become the new religion. It has permeated the conduct of domestic and international affairs to a prodigious extent: the lawyers are chuckling. According to Conor Gearty, Professor of Human Rights Law at King's College, London, commenting on the fact that the creed has now been implemented into our Human Rights Act 1998,
'it will provoke litigation which will be dazzling in its breadth, overwhelming in its volume and unprecedented in its implications for British politics and law '
Many will remember that when Chris Patten published his recommendations on the reform of the RUC, prominent among them was that the oath to the sovereign be replaced by one to the ethos of the European Convention of Human Rights.
We may well ask whose rights are they, those of the plaintiff or the interpretation of the judge. It was assumed that, with the implementation of the European Convention into the Human Rights Act 1998, we had driven into a legal cul-de-sac which firmly established them. After its commencement date - October 2000 - we had in effect entrenched a Bill of Rights into our law.
But we had not reckoned with the Family Division of the High Court with its redoubtable President, Dame Elizabeth Butler-Sloss. In our issue (November 2000) we discussed her judgement in which she approved of mercy killing in the case of two women regarded as being in a 'permanent' vegetative state and gave her consent for their assisted nutrition and hydration to be discontinued. By a neat stroke of law writing she decided that the right to life incorporated in the Human Rights Act did not apply to the deprivation of assisted nutrition and hydration, as death in that instance was caused by the disease or injury which created the condition and not by the act of another.
To refresh ourselves on what the European Convention on Human Rights states we shall recapitulate:
Article 2 'Right to life' states:
Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
Deprivation of life shall not be regarded as inflicted in
contravention of this Article when it results from the use of force which is
no more than absolutely necessary
a) in defence of any person from unlawful violence;
order to effect a lawful arrest or to prevent the escape of a person lawfully
in action lawfully taken for the purpose of quelling a riot or insurrection.
With such an unfavourable interpretation of the Convention in the Family Division of our own High Court we turn to consider an article by an anonymous member of ALDU in its recent News and Comments (Summer 2001, No.90). In it he states that the European Court of Human Rights fails to state clearly whether or not the lives of unborn children are protected by Article 2 of the Convention. The right to life and the scope of its protection embrace surely the most important human right covered by the Convention. Its plain and ordinary meaning is quite obvious, and the Court should state unambiguously and without equivocation the position. In his opinion it has avoided the issue in the past, as different states within the community have different beliefs and standards on destroying that life.
In Paton v. UK(1980, 19DR,244) the father claimed a breach of his rights under Article 8, in which an abortion sought by his wife violated the right to respect for his own private and family life. The High Court in England had rejected his claim, relying on an affidavit that, because of her husband's behaviour (such that she feared for her safety), life with him had become increasingly impossible and her 'health suffered' needing treatment from her doctor. She could not cope and believed that for months she had been 'close to a nervous breakdown'.
The Commission, in its judgement, evaded any decision on whether Article 2 covered the unborn child and declared the complaint inadmissible. The core of that decision was their finding that, if Article 2 did apply to the fetus at that stage of the pregnancy (10 weeks), there was an implied limitation in order to protect the life and health of the pregnant woman, and that therefore it was not necessary to determine whether or not the fetus comprised life within the contemplation of Article 2. They said they were not concerned with the life of the fetus during the whole period of pregnancy but only within the initial stages and were not considering any ground other than that of protecting the mother's life and health.
What a monstrous judgement that the life of the fetus has to be sacrificed in favour of a danger to the life and health of the mother, however slight.
We thus have two cases in which the judgements carefully avoid the main issue. There are others.
The paper from the ALDU member then goes on to discuss future action. As the Commission found the Paton complaint on abortion and Article 2 inadmissible, what seems desirable now is to identify a father aggrieved by the abortion of his child, or the prospect of it. The situation envisaged is one in which the grounds for the abortion are of the lower order, where the grounds were that the birth of the child posed some minor risk to the physical or mental health of the mother or of one of her children. Emphasis would be laid on the comparison between the sacrifice and the possibility of a nervous breakdown which perhaps was not stressed adequately in Paton.
If such a person was identified, he might be assisted to bring a complaint to the ECHR Court which has now replaced the Commission. His case would be that there had never been a definitive ruling on the first vital question of whether or not unborn life was protected by Article 2 and that such a decision should be made. In addition, as there was a similar case in Norway in which the Commission allowed discretion to the state in the case of abortion, that decision was plainly wrong.
On the contrary the argument would maintain that the decision should not extend beyond the need to protect the mother s life nor, possibly, beyond the need to protect her against the real risk of permanent or grave damage to her body or mind. Such are the risks necessary under the 1967 Act in this country after the 24th week. It is a most interesting proposal; our members doubtless will have firm opinions on its suitability.