LGBT people in the UK should prepare to defend our human rights law

Telegraph has reported that “Britain is preparing to opt out of major parts of European human rights laws”. “Boris Johnson’s aides and ministers” are reportedly “drawing up proposals to severely curb the use of human rights laws in areas in which judges have ‘overreached’”. It is not made clear exactly which judges have “overreached”, or the areas of law in which this overreach has occurred, but the article explicitly mentions “asylum cases”.

Details of the potential “opt out” are vague, but include “opt-outs from the Human Rights Act” which, reportedly, are being considered by “several Whitehall departments, including Number 10, the Ministry of Justice, the Home Office and the Ministry of Defence”. “One option”, it is said, “is to amend the Human Rights Act or disapply its provisions”, and other options include so-called “less radical changes” that are “designed to affect how judges interpret the law rather than changing the substance of the Act”.

It is also reported that “Senior Government figures want to roll back the influence of the European Court of Human Rights in Strasbourg, which several Cabinet ministers have accused of distorting the 67-year-old European Convention on Human Rights” (ECHR). “Senior Tories insist”, it is said, that “the ECHR was never intended to be used in the way it is now relied on…”

Nothing new

In some ways, the Telegraph article reports nothing new.

Back in 2014, the Conservative Party set out its proposal to repeal the Human Rights Act 1998 (HRA 1998), replace it with a new “British Bill of Rights and Responsibilities”, and raised the prospect that the UK might withdraw from the ECHR. The Conservative Party plan was based on a number of claims, not least that the HRA 1998 was said to undermine the role of UK courts when deciding human rights cases and “undermines the sovereignty of Parliament, and democratic accountability to the public”. 

The Conservative Party suggested that the UK should remain committed to the ECHR, but only if “the Council [of Europe] will recognise these changes to our Human Rights laws”. The threat was clear: the Conservative Party said that in “the event that we are unable to reach that agreement [with the Council of Europe], the UK would be left with no alternative but to withdraw from the European Convention on Human Rights”. My colleagues and I considered the implications of this in a policy paper in 2015.

The Conservative Party’s 2015 election manifesto repeated the intention to “scrap” the HRA 1998 and replace it with a “British Bill of Rights”. It also promised to “curtail the role of the European Court of Human Rights”. The Conservative Party's 2017 election manifesto suggested that the commitment to both the HRA 1998 and ECHR were time-limited: the HRA 1998 would not be 
repealed or replaced "while the process of Brexit is underway" and the UK would remain a signatory to the ECHR "for the duration of the next parliament". The Conservative Party’s 2019 election manifesto had less detail, but did contain the proposal that “[w]e will update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government”.

Alongside this there has been a continuous stream of anti-ECHR rhetoric from senior Conservative Party officials, such as the then Home Secretary, Theresa May, who, in 2016, argued forcefully that the UK should leave the ECHR.

In short, senior figures in the Conservative Party have repeatedly made it clear over the last six years that they want to fundamentally change the scope and influence of European human rights law in the UK. Today’s Telegraph article tells us the Conservative Party may have this back on its agenda.

Why LGBT people should be worried

The ECHR has been fundamental to developing LGBT rights and freedoms in the UK; it is the bedrock of many rights and freedoms that LGBT people in the UK enjoy today.

The European Court of Human Rights, which is the highest judicial authority in respect of interpreting the rights and freedoms contained in the ECHR, has been central in safeguarding the rights of LGBT people in the UK.

The HRA 1998, in simple terms, brings the ECHR closer to home. It means that any court in the UK – from magistrates' courts in England and Wales, to the UK Supreme Court – must take into account the jurisprudence of the European Court of Human Rights when considering any matter in connection with an ECHR right. Moreover, the HRA 1998 also requires that any UK legislation must operate in a way that is compatible with our ECHR rights.

The ECHR, in combination with the HRA 1998, provides LGBT people with one of the most powerful resources available to us to address the widespread forms of discrimination that we encounter in our lives. The ECHR provides LGBT people with one of the strongest shields to hold up against some of the most odious forms of discrimination.

The ECHR is a shield LGBT people have been using for a long time. Just three months after it was possible to make an application under the ECHR in Strasbourg in 1955, an individual in Germany submitted the first application concerning discrimination related to sexual orientation. Lesbian and gay people in the UK have been taking cases under the ECHR to Strasbourg since 1975, and trans people in the UK have been doing the same since 1981.

Decades of LGBT people in the UK taking cases under the ECHR to Strasbourg has resulted in, for example, the progressive decriminalization of male same-sex sexual acts, reform of the “age of consent”, the removal of the ban on gay people serving in the armed forces, and the right of trans people to full legal recognition of their sex/gender identity. The ECHR protects LGBT people from regressive action by this or future UK governments that may seek to “roll back” these important developments in human rights protection.

The ECHR continues to give LGBT people protection from discrimination in our everyday lives. For example, the ECHR in combination with the HRA 1998, provided the UK Supreme Court with a strong foundation for deciding, in 2013, that it was not lawful for Christian hotel keepers, who sincerely believed that sexual relations outside marriage are sinful, to refuse a double-bedded room to a same-sex couple. Similarly, the ECHR in combination with the HRA 1998, provided the foundation for an Employment Tribunal, in 2019, to conclude that certain “gender critical” beliefs about trans people are "not worthy of respect in a democratic society" and, consequently, not protectable under equality law.

The protective shield that the ECHR provides to LGBT people, and the capacity that the HRA 1998 creates to use that shield in the UK courts, could be severely diminished by the plans of the Conservative Party.

The lies they will tell us

Any plans that the Conservative Party come up with, to either reduce the scope of or disapply the HRA 1998, or curtail the UK’s commitment to the ECHR, will be cheered on by Eurosceptics and others. They will tell us a lot of half-truths, and downright lies, about the HRA 1998, the ECHR, and the European Court of Human Rights.

We will certainly hear, again and again, that human rights law is being abused, both by activist lawyers and activist judges, and has “gone beyond” what it was designed to do. We will be told that the European Court of Human Rights has usurped the power of democratically elected governments by way of an ever-expanding interpretation and application of the ECHR, continually adding rights in areas that should be left to governments to legislate in.

But when we hear claims like this we should remember the history - described in detail here - of the development of LGBT human rights under the ECHR. We should remember that there has never been any “judicial activism” or “overreach” when it comes to LGBT human rights. In fact, the opposite is true. As I argued here, whilst the European Court of Human Rights has certainly played an important part in bringing about changes to UK laws that once discriminated against people on the grounds of sexual orientation and/or gender identity – and I mentioned some of them above – it has also frequently adopted a conservative interpretation of the ECHR and, much to the disappointment of LGBT people, rejected complaints about discrimination.

When it comes to LGBT issues, it is “restraint” rather than “activism” that has usually been a hallmark of the European Court of Human Rights’ approach to interpreting the ECHR. So, whilst some would have us believe that the European Court of Human Rights has invented mechanisms to enable it to give rights away to everyone, the reality is that it is usually very cautious in evolving its interpretation of the ECHR. As a result, to put it simply, when LGBT people have knocked at the door of the European Court of Human Rights and asked for help, they have very often had the door slammed in their faces.

One of the reasons for this, as I set out in the Third Annual Belfast Pride Law Lecture, is that the European Court of Human Rights has itself often pandered to popularism when it comes to “gay issues” and, in doing so, decided not to side with gay people in ways that would be unpopular with European governments or the majority of people. It continues to do so, for example, on the subject of same-sex marriage, sticking rigidly to a heteronormative view of marriage and continually telling same-sex couples that, unlike different-sex couples, they have no human rights to marry.

For LGBT people, therefore, European human rights law has never been “activist” and has never “overreached”. It has evolved, painfully slowly, in response to LGBT people patiently bringing claims of discrimination, often failing, and trying over and over again to persuade those charged with interpreting the ECHR that gay rights are indeed human rights.

In short, there has never been and there is no “rights department store” where LGBT people can buy all the human rights we want, served to us by an over-reaching and activist judicial assistant. All of our human rights have been hard-won and have developed from long years of legal struggle in response to intense discrimination (listen to the voices of some of the brave people who engaged in that struggle).

The development of LGBT human rights under the ECHR is an exemplar of how the ECHR system can rarely accurately be described as activist.

So why should LGBT people guard the ECHR and the HRA 1998?

LGBT people should recognise the important role that the ECHR has played in the development of LGBT rights, and the ways the European Court of Human Rights has evolved its interpretation of the ECHR to protect LGBT people. We should also recognise the limitations of the ECHR system and, not least, that the European Court of Human Rights frequently doesn’t recognise that differences in treatment based solely on sexual orientation or gender identity amount to a violation of the ECHR. 

There is no contradiction in recognising the importance and also the limitations of the ECHR system for LGBT people. In my view, it's important to recognise where the limitations lie and try to address them, so as to improve human rights protection for LGBT people in the future. 

One of the reasons that the ECHR system sometimes fails LGBT people is because those charged with interpreting the ECHR sometimes adopt a socially conservative or cautious approach to LGBT rights. Such an approach is encouraged in a context in which unpopular decisions or judgments by courts are so often used to threaten the legitimacy of human rights law and those who adjudicate it. 

That's why the Conservative Party's agenda of attacking the legitimacy of the HRA 1998 and the ECHR is so worrying for LGBT people. At the very least, it encourages a climate that is antithetical to the proper functioning of human rights law. It encourages the conservative and cautious approach to human rights law that is unhelpful to LGBT people seeking to address the discrimination we face. 

As the history of the development of LGBT human rights shows, we need to foster and promote a climate in which those charged with interpreting human rights law feel empowered to take decisions that best protect human rights regardless of when these decisions are unpopular, or claimed to be unpopular. The ECHR system works best, at the domestic and international levels, when it has firm political support. But the Conservative Party may have a different vision: a vision of a future in which UK courts are limited in how they can apply the ECHR and, if this creates problems down the line in the European Court of Human Rights, a battle over the ECHR itself. Attacking the legitimacy of human rights law is a means of achieving that vision.

So LGBT people should beware on at least two fronts: first, we should beware claims of “judicial activism” and human rights “overreach”, because these bogus claims threaten the legitimacy of the ECHR and those that interpret it; and, second, we should beware a diminishing of the capacity to practically utilise ECHR rights to combat discrimination. We should get ready to fight to protect the HRA 1998 and the ECHR because, for all its faults, the ECHR system is the best framework we have for safeguarding our hard-won rights and freedoms, and evolving them in the future.