The UK Conservative party plans to scrap the Human Rights Act, replacing it with a “British Bill of Rights and Responsibilities”, however Scotland’s government and equality campaigners sharply criticised the move and said it would be resisted.
Prime Minister, David Cameron, Home Secretary, Theresa May, Justice Secretary Chris Grayling announced that if the Conservatives were to win next year’s general election, the UK will scrap the Human Rights Act which requires judges to “take into account” European Convention on Human Rights (ECHR).
Article 14 of the Human Rights Act 1988, which outlaws discrimination, has been extensively used in many legal cases to protect human rights, including specifically, LGBTI rights, with ECHR striking down discriminatory violations.
Under the new proposal ECHR rulings would be treated as just “advisory,” rather than as binding by British courts.
Chris Grayling, stated: “We can no longer tolerate this mission creep, … We will put in place a provision that will say that the rulings of Strasbourg will not have legal effect in the UK without the consent of parliament. Effectively, what we are doing is turning Strasbourg into an advisory body.”
While Cameron vowed: “we do not require instruction on this from judges in Strasbourg. So at long last, with a Conservative government after the next election, this country will have a new British Bill of Rights, to be passed in our parliament, rooted in our values. And as for Labour’s Human Rights Act? We will scrap it, once and for all.”
Under this proposal ECHR rulings would no longer be enforceable in the UK, a similar position to Russia, which takes little notice of the rulings against LGBTI discrimination, warn human rights campaigners.
Many of ECHR rulings have repealed anti-LGBTI legislations both in the UK and abroad and abolishing this mechanism could seriously impair any future challenges to discrimination against LGBTI people, warn campaigners.
ECHR rulings have transformed British laws to become more equal and removed anti-LGBTI legislations, including:
- Trans pension rights in the case Grant v UK, 2006
- Removing the ban on gay people serving in the armed forces, Lustig-Prean & Smith v UK 2000
- Equalising the age of consent of gay people, Sutherland v UK, 1997
- Introduction of gender recognition into UK law, Goodwin v UK 2002
- Decriminalisation of same-sex acts in Northern Ireland, Dudgeon v UK, 1981
- Lifting a ban on sex between more than two men as a breach of the right to privacy ADT v UK, 2000.
- Giving same-sex couples tenancy rights, Mendoza v Ghaidan 2004 (based on previous ECHR 1999 ruling)
Human rights, law groups and politicians have sharply criticised the proposals. Tim Hancock, campaigns director of Amnesty UK, strongly criticised the proposal: “Under these plans human rights would be reserved for only those people the government decides should get them. This is a blueprint for human rights you would expect from a country like Belarus.
“We should all be worried when politicians try to set themselves above the law,” he said.
While Andrea Coomber, director of the law reform charity Justice, said: “If we give our parliament the right to a ‘pick and mix’ approach to human rights standards, we send the message that that is also OK for the [Russian] Duma. If the rule of law is tempered by the popular majority, it becomes no real rule at all. Talk about this kind of British Bill of Rights might be good politics, but it’s unnecessary and dangerous for our constitution.”
Ed Miliband, leader of the opposition Labour Party wrote on a post on Facebook: “Our human rights laws have protected the rights of victims of crime, the elderly, the disabled and gay people. We shouldn’t put that at risk.
“… leaving the European Court of Human Rights, which the Tories appear to be proposing, would be a disaster for this country – putting Britain in the same bracket as Belarus.”
However, when quizzed by KaleidosScot, a Scottish Conservative party spokesperson said: “Scotland and the UK has been at the forefront of protecting and enhancing LGBTI rights, whether in the form of same-sex marriage or the enforcement of existing anti-discrimination laws. This has seen our country make some remarkable progress in gaining equality for LGBTI people, making us one of the most progressive nations in the world.
“Today’s proposals to replace the Human Rights Act do not change our commitment to that. The rights of LGBTI people will continue to be protected. Most aspects of existing human rights legislation are controlled by the Scottish Parliament, so any proposed changes will be considered carefully to ensure Scotland continues to have protections in place for all aspects of society.”
Nevertheless, the Scottish LGBTI charity, the Equality Network, said they were “very concerned” by the proposals. A spokesperson added, “The UK was one of the founders of the European Convention in 1950 and has a proud history of promoting human rights in Europe, which this proposal would throw away. A Bill of Rights may be worth considering, but it would need to build on and enhance the basic protections in the European Convention, not reduce them.
UK coalition partners, the Lib Dems have also criticised the proposals, with Scottish Secretary, Alistair Carmichael, claiming Scotland could ignore the UK ruling and remain a signatory to the Human Rights Act itself.
This could be achieved, he argued, since the Human Rights Act is central to the original devolution of powers from London to Edinburgh, whereby any actions of the Scottish Parliament must comply with ECHR and that the Act cannot be altered or repealed in any way by Holyrood.
Response has been swift from the Scottish Government, as Justice Secretary, Kenny McAskill addressed the Law Society of Scotland on Friday stating, “They [Conservatives] have been on this trajectory for some time. We should not accept this as diktat. This is not a trajectory that a European democracy should be proceeding along in 2014″ and he confirmed he will be writing to Westminster to express the opposition of the Scottish Government to the proposals.
Roseanna Cunningam, Community Safety and Legal Affairs Minister at Holyrood, also stated on Friday: “The Scottish Government is strongly opposed to any attempt by a future UK Government to repeal the Human Rights Act or to withdraw from the European Convention on Human Rights. To do so would require the consent of the Scottish Parliament and, given our longstanding opposition, we would invite the Scottish Parliament to refuse this.”
“Human rights protections, and the Human Rights Act, are central to the law of Scotland and we intend to do everything within our power to ensure those protections remain in place.”
Speaking with KaleidoScot, human rights campaigner Peter Tatchell said: “I applaud the the Scottish government’s announcement that it will retain the Human Rights Act and the ECHR, even if the Conservatives at Westminster scrap both. Yet again the government in Scotland has shown itself to be a progressive administration.
“The Human Rights Act guarantees all citizens, including LGBTI people, equal rights and protection against discrimination. It gives us safeguards against an over-bearing, intrusive government and redress against the abuse of power by state agencies.
“There have been several important human rights law rulings in support of LGBTI rights. The ECHR passed judgments striking down the unequal age of consent, the ban on gays on the military, the criminalisation of homosexuality in Northern Ireland and the denial of recognition to transgender people. The threat of an adverse ECHR judgment was one of the factors that prompted David Cameron to legalise same-sex marriage.
“To axe the Human Rights Act and withdraw from the ECHR, as the Conservatives are proposing, would be a disaster for equality and human rights. It would deny the LGBTI community vital legal protections and redress.”
Siobhan Reardon, Amnesty’s Scotland Programme Director, praised Scotland’s resistance: “It’s good to hear that Scotland doesn’t want to join in Cameron’s race to the bottom on human rights.
“Human rights are a cornerstone of Scottish society and people here know the value of holding the powerful to account.
“Whatever decisions may be taken in the Westminster parliament in years to come, Scotland’s politicians must stand firm in guaranteeing the human rights of all the people of Scotland and use their standing to promote human rights internationally.”