The role of common sense in human rights rulings

Every so often the Human Rights Act comes to the fore with a decision that frustrates, offends, or confuses large swathes of the population. The most obvious defence of it in such circumstances is often that it is protecting a minority right which may not be popular with the majority, and that such cases are cause for celebration of an act that is fulfilling a counterbalancing role in a democracy ruled by the will of the many. This can be true, but it can also be a theoretically principled defence which falls short when applied to the facts. Even when the Human Rights Act delivers a verdict that goes against the baying cries of the media, or the immediate public intuition of justice that you might measure at the bar of a local pub, it ought always to be explicable in a way which does not offend commonly held values of fairness and justice. Otherwise, the act – via application – risks becoming its own worst enemy. By failing to couch judgments in the graspable commodity of common sense, there is a serious risk of "human rights" becoming limp-wristed, liberal jargon in the eyes of the public. This is a problem, not because justice should be done via the lowest common denominator, but because a bit more common sense could reduce the appetite to change an act which is – in the large proportion of cases that don't get reported widely – doing a great deal of good. The story this week of Christine Timbrell , who spent the first five decades of life as Christopher Timbrell before undergoing gender reassignment surgery in 2000, is the sort of case for which the Human Rights Act was created. Timbrell wanted to claim her pension at the age of 60, but HM Revenue & Customs refused. Under the 2004 Gender Recognition Act, as a transsexual she could only have her new gender status recognised if her happy marriage to Joy Timbrell was annulled or dissolved. They would then be able to enter a civil partnership, and continue to live as a family with their two children. Trimbell saw no reason to be forced by the government to divorce or annul. There are two manifest injustices in the legislation. The first is the obvious injustice felt by men everywhere that their pensionable age is greater than that of women. This case prompted quips in the Daily Mail about the lengths one might go to for a pension in these straitened times. The second injustice is that Christine would have been able to divorce and then enter into a civil partnership with Joy – the "different but equal" arrangement of the law being one which only in these sorts of unusual circumstances is exposed as rife with complication. Into this quagmire steps the HRA with the qualified right to a private family life, quite fairly being applied to this case to highlight the great injustice Christine has suffered. Lord Justice Aikens's ruling means that Christine will receive backdated pay, with the bar on her receiving a pension as a woman while in a marriage to Joy being considered rightly to be a form of discrimination. One wonders to what extent this ruling can be considered to be logically fair. Given that Christine was for 50 years of her life Chris, I am left asking why the law has not been applied (since the "discrimination" of pensionable ages is itself unchallenged in this case) to allow Christine to claim her pension aged 64 and two months – ie, taking proportionate account of the length of her life as a woman. Too literal? In this case there is a good argument to be made for such a ruling, and the basis is what is referred to – in the great Australian film The Castle – as the law of bloody common sense. A private life, like many of the rights enshrined in the HRA, is a qualified right. In certain proportionate circumstances this right can be removed, undermined, made subject to other allowances. Proportionality is not a mathematical concept, it is fundamentally a legal word for something far more graspable – that innate balance of fairness that we can all make, and which courts are forced to make, using the set of principles that govern our concept of justice. What is the difference between being allowed to retire and claiming a pension at one age or another? Gender. Upon what basis is the distinction justified? In the broadest terms, the length of time that one has been of the gender at the time of application. A woman who underwent surgery aged 61 to reassign her gender to that of a man would be depriving herself of her pension for four years. The law is made a nonsense of by these exceptions, and as I have suggested above, common sense can be considered and applied in a broader conception of justice than just the premise of the court case itself – the reckoning stick of the majority. Endless comments may question what constitutes the view of the man on the street, but courts are used to deciding such questions. Courts must consider the likely perception of the outcome of a case when trying to find a solution to an injustice and a way to articulate that solution. The Human Rights Act will be the stronger for it.