Friday, 1 March 2013

An attempt to repeal the UK's Human Rights Act and its implications for gay and lesbian rights

The UK Parliament is today debating, at Second Reading, the Human Rights Act 1998 (Repeal and Substitution) Bill. This is a Private Members' Bill, introduced by Charlie Elphicke MP. Whilst this Bill is the result of a broader and ongoing debate about human rights in the UK (and reflects the fundamental dislike of the European Court of Human Rights by some Conservative parliamentarians) it should be of interest to those of us concerned with the ECHR and sexual orientation. This is because the Bill frames human rights in a way that may significantly limit the progress of gay and lesbian human rights (and the rights of other minorities) in Britain and raise the protection of those who are opposed to them.

The reason for this is that, in proposing a repeal of the Human Rights Act 1998 and unbinding any UK Court from the jurisprudence of the ECtHR, the Bill also opens the way to elevate and privilege some aspects of human rights currently protected by the HRA and ECHR above others. For instance, the Bill mirrors the HRA provision that  'Freedom of thought, conscience and religion' needs particular protection (it is included in the section 'Other rights and proceedings') to emphasise the current requirement that: 'If a court’s determination of any question arising under this Act might affect the exercise by a religious organisation (itself or its members collectively) of the UK right to freedom of thought, conscience and religion, it must have particular regard to the importance of that right'. This provision can be seen to closely relate to the retention of the 'Right to education', in Article 14 of the proposed UK Bill of Rights, which states that: 'In the exercise of any functions which they assume in relation to education and to teaching, public authorities shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions'. Although the Bill proposes to make no intrinsic changes to the rights that are guaranteed, the worry in relation to sexual orientation is that it is closely bound-up with a Conservative discourse about how rights in the UK have become unbalanced by the ECtHR and need domestic correction. 


For instance, there is a long-standing complaint among Conservative MPs that the development of gay and lesbian rights in the ECtHR has negatively impacted upon the rights of religious individuals and organisations 'at home'. Such a claim has been made over and over again in respect of all manner of legislative developments in respect of sexual orientation (civil partnerships, adoption, hate speech etc). We should view an attempt to divorce the UK from the ECHR as intrinsically linked to the argument that the domestic courts will be better at rebalancing rights in favour of religious groups and individuals over sexual minorities. Elphicke's voting record on sexual orientation issues since he joined the UK Parliament in 2010 shows that he is very much in favour of wanting to better 'protect' religious rights and limit the rights of homosexuals. For instance, Elphicke recently voted in favour of the Equality (Marriage) (Amendment) Bill, a 10 Minute Rule Bill, which seeks to amend the Equality Act 2010 in order to, as its sponsor argued, better 'protect those who hold the traditional view that marriage is between a man and a woman [...] They believe that history, biology, ethics and religion all tell us that marriage is, uniquely, the coming together of one man and one woman for life to the exclusion of all others'. Elphicke also voted against the Marriage (Same Sex Couples) Bill


Whilst a critical engagement with the ECHR and human rights generally is both welcome and necessary in a democratic society, Elphicke's Bill is an attempt to establish a principle so often cherished by Conservative MPs: that majoritarian national opinion (particularly when it is in sympathy with the official view of the Church of England) must prevail above all else. For this reason, those of us who care about gay and lesbian human rights should be very wary of this and other attacks on the ECHR.


*** UPDATE *** 


Hansard shows that the word 'religion' or 'religious' appeared 23 times in the Commons' debate. Elphicke paid particular attention to emphasise that his key aim, in attempting to take power away from the ECtHR, is to heighten the protection of religious freedoms:

"freedom of religion should be protected to a greater extent than they are today. We have seen too many attacks on people’s thoughts, feelings and beliefs. There has been too much aggressive secularism, which has sought to attack the Church and people who have deeply held religious beliefs. We have seen that in the case of the Plymouth Brethren and the Charity Commission, and in the constant attacks on the Church and on religion both in Parliament and outside it. We must ensure that there is a space for people to have religion and religious beliefs in this country, and that people should be able to set out and preach what they think. Their right to free speech should be better protected."

This argument is identical to the arguments made in every Parliamentary debate by those who oppose the development of legislation aimed to establish equality in respect of sexual orientation. 





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