Referendums are becoming a risk to human rights – here’s how the EU’s single market could solve this

Do you remember the euphoria in Ireland in 2015 when the results of the Irish referendum on equal marriage came in? The vote was conclusively in favour of allowing same-sex couples to marry. Australia followed suit in 2017. Earlier this year Ireland then voted again and chose overwhelmingly to overturn the abortion ban.

There are questions about whether referendums are the solution to these knotty human rights issues. For many LGBT+ people, the fact that their rights were to be voted upon at all seemed wrong. Similarly, a woman’s autonomy doesn’t belong in a ballot box.

And what happens when your side doesn’t win? Last Sunday Romania went to the polls to decide whether the law should make clear that marriage is only between a man and a woman. The odds were stacked against the LGBT+ community, but the vote was invalid because only 20 per cent of voters turned out to vote.

A spokesperson from the main European LGBT+ organisation, ILGA, neatly summed up the outcome of the botched poll: “The referendum once again showed how vulnerable the [LGBT+] community is, in the absence of proper legal recognition of same-sex partnerships and families.” It was a close shave in Romania, but elsewhere, the LGBT+ community hasn’t been so lucky.

In 2013 a referendum held in Croatia supported banning same-sex marriage; 700,000 people had already signed a petition demanding a vote. In a country with a population of 4 million that’s intimidating, and, not surprisingly LGBT+ people were left vulnerable to hatred and bigotry. Something similar happened in Slovakia in 2015 where 90 per cent of voters sought to ban same-sex unions. But, like Romania, a low turnout invalidated the referendum.

Slovenia’s parliament was set to introduce equal marriage, but a petition of 400,000 people, supported by Pope Francis, forced a referendum in 2015 whereby the proposed bill defining marriage as a union of two adults was rejected.

This snap survey of the role of referendums in relation to marriage equality highlights the risks associated with them. But what is a referendum? I hazard a definition. It is an official opinion poll, a true sample of what the public thinks on a single question during a short period of time.

Making an opinion poll a mandate for government policy, especially where that policy relates to human rights, is an abrogation of government responsibility. If it turns out not to have been in the interests of the country, who’s to blame? The government or an opinion poll?

There are also strong arguments that referenda are merely an expression of majoritarianism, devoid of checks and balances. In the recent Brexit referendum, 37 per cent of the electorate voted to leave the EU. The rest either voted remain or didn’t vote. It’s hard to fathom in what way the outcome of that referendum represents the public will when 63 per cent did not vote to leave the EU. Could the death penalty be restored on 37 per cent of the vote? Or the recriminalisation of abortion or homosexuality?

The problem with referendums – certainly without extensive safeguards – is that they can use the veneer of democracy to undermine a democratic society. Referendums and human rights do not mix.

Which leaves us with that vital question, how do you secure these fundamental rights?

Except for Australia, all these cases occurred in EU member states. Arguably it is these issues which prove beyond a shadow of a doubt that the EU is not a federal entity. But does the EU offer a solution? Member states make their own laws. As long as those laws don’t impede the EU’s four freedoms of goods, services, capital and people, member states can act with relative impunity.

But they are all bound by the European Convention on Human Rights (which is nothing to do with the EU), and the Strasbourg-based court (ECHR) that decides cases under that convention is clear that while equal marriage is not (yet) protected, civil partnerships are. Therefore, despite dragging the LGBT+ community through the indignity of referendum, there are now same-sex civil partnership guarantees in Slovenia and Croatia.

And then there’s the single market. The genius of that single market is that it has taken the sting out of many of these essential human rights issues. Huge strides have been made for equality through the effective functioning of the single market. For example, the court of the EU has held that you cannot discriminate against married same-sex couples in the enjoyment of their free movement rights, even in countries that do not permit equal marriage.

Litigation can be useful, as this case shows, but you need to compare it with the UK Supreme Court’s “gay cake” case last week which held that a baker could refuse to bake a gay man’s pro-equal marriage cake. That case did not engage EU law, but it highlights the risks associated with litigation. Legislation can work, but it tends to focus on compromise and not rights.

Perhaps the best guidance for delivering rights comes from the EU and its Charter of Fundamental Rights. It’s a remarkable document, comprehensive, dynamic and nimble all at the same time. The charter is now bedding down, and it will be interesting to observe how human rights grow and flourish in the EU over the years to come.

But we in the UK will be onlookers. A cabal of Conservatives and the DUP (with a few stragglers) chose to remove the charter from UK law post-Brexit. The UK could have been informing human rights protection within the EU and beyond, but instead our priorities will be elsewhere, and more worrying, no doubt there will be attempts by some, most notably in the Brexiteers’ ranks, to prove you don’t really need human rights at all.