Meanwhile, in the day’s other Supreme Court judgement, the justices struck down the government’s ban on non-EU spouses under the age of 21 coming to live in Britain. This legislation was, it should be noted, well-intentioned and aimed to make it harder to arrange forced marriages in this country. So far so admirable. But, as is so often the case, the law cheerfully entrapped the innocent as well as the guilty.
And so, as is so often the case, there’s a balance. Mitigating against forced marriages is a worthy endeavour and one that Lord Brown, dissenting, suggested should be given greater priority:
This is not an unreasonable view. But nor is that of the majority, as expressed by Lord Wilson:The extent to which the rule will help combat forced marriage and the countervailing extent to which it will disrupt the lives of innocent couples adversely affected by it is largely a matter of judgement. Unless demonstrably wrong, this judgement should be rather for government than for the courts.”
“I would acknowledge that the [change in rules] is rationally connected to the objective of deterring forced marriages,” he said. “But the number of forced marriages which it deters is highly debatable. “What seems clear is that the number of unforced marriages which it obstructs from their intended development for up to three years vastly exceeds the number of forced marriages which it deters. “On any view it is a sledgehammer but [Home Secretary Theresa May] has not attempted to identify the size of the nut. “She fails to establish that the interference with the rights of the respondents under Article 8 [of the human rights convention] is justified.”
In one of the cases before the court, a British student had been prevented from living in Britain with her Chilean husband. There was no suggestion the marriage was forced, or a sham or anything other than a normal, loving relationship. And yet the British government’s rules forced a British citizen into exile for the “crime” of marrying a man of the wrong age and nationality.
The Human Rights Act, as interpreted by judges, often may well be “anti-democratic” but it also offers protection against illiberal legislation that restricts liberty and opportunity. In those circumstances the courts are a valuable shield for the individual threatened by the state. No wonder they’re unpopular with politicians!
Granted, in this instance the law also sought to protect, to some degree, “vulnerable” people who might otherwise be forced into unwanted marriages. That, again, is a useful enterprise but there should, one must think, be ways of doing this that do not also criminalise the innocent. Blanket prohibitions are rarely happy laws and these cases merely demonstrate that once again.
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