Law professor Nicola Barker writes for PinkNews that Tory plans to weaken the Human Rights Act risk rolling back LGBT+ rights.
Last month the government published its proposals for overhauling the Human Rights Act 1998, which incorporates the rights set out in the European Convention on Human Rights (ECHR). The Human Rights Act has been very important for LGBT+ communities with some of the earliest cases brought under the Act resulting in significant new protections for same-sex relationships and trans rights. The government wants to make it more difficult for people to assert their rights and these reforms are likely to pose particular dangers for LGBT+ rights.
Two of the government’s key concerns about the Act are the incremental expansion of rights to keep up with changes in society (referred to as the ‘living tree’ doctrine) and that judges’ powers to interpret legislation in line with Convention rights lead them to ‘rewrite’ legislation instead of simply interpreting it.
The government’s preferred approach would see a more literal reading of the text against its original meaning. This would pose a serious risk to the further development of LGBT+ rights, which were for obvious reasons not anticipated in the early 1950s when the Convention was drafted. Moreover, the premise of this reform is simply incorrect: the recent Independent Human Rights Act Review, commissioned by the government, rejected in the strongest possible terms the idea that judges rewrite legislation and concluded that “it is fanciful to suppose that, even if it is desirable to do so, the living tree element of the Convention could be stripped out, leaving the Convention to be interpreted in its ‘original’ form (whatever that would now be taken to mean)”.
The consultation refers to preventing “frivolous or spurious” cases from even coming before the courts. There are no specifics in the consultation document to indicate what the government means by that phrase, but we can turn to the justice secretary’s previous writing on the subject to find out what types of cases he might put into this category. In his book, The Assault on Liberty: What Went Wrong with Rights, Dominic Raab uses trans rights to illustrate his opinion that the Human Rights Act has gone too far: “The right to a private life has generated a right to hormone treatment, from public funds, to facilitate sex changes,” he wrote. “This new right comes with a range of positive duties on government to recognise sex changes – including a duty on social services to alter past personal records in order to hide the fact that such treatment has taken place”. He goes on to criticise the labelling of trans rights as human rights.
The government’s proposals also target the Article 8 right to private and family life, which has been key in virtually all LGBT+ rights cases. First, the government seeks to effectively remove the right to family life from migrants who are resisting deportation on the basis that they have a partner and/or child in this country, having already previously changed the law so that a right to family life can only prevent deportation in very limited circumstances.
Although the government frames this as being about “foreign criminals”, the consultation actually proposes to include all migrants, whether they are “failed asylum seekers” or “those who enter the UK through safe and legal routes but overstay their right to remain” (p.82). The status of LGBT+ migrants is already very insecure, as illustrated in a case in which the right to family life of a married lesbian couple (who had been lawfully resident and working in the UK) did not prevent deportation. This proposal will make LGBT+ migrants all the more vulnerable to being separated from their family life with loved ones in the UK or deported to countries that would not recognise their relationship.
Second, the government proposes to change the balance that is currently struck between freedom of speech and privacy, so that privacy carries less weight. This has clear implications for issues like outing. For example, in a recent case a man created a website disclosing details of his sexual relationship in order to harass his closeted ex-boyfriend who was born, and now lives in, a country which criminalises same-sex relationships.
The claimant was able to use the Human Rights Act to get an injunction requiring the website to be taken down. If the government proceeds with changing the balance between free speech and privacy it would be much more difficult for people in this situation to protect themselves. At the moment, where there is a competing claim of free speech against privacy neither has precedence. Instead, “the court must consider carefully (or, as is often said, apply an ‘intense focus’ to) the comparative importance of the rights claimed. The justification for interfering with or restricting each right must be taken into account, and the test of proportionality applied”. There hardly seems to be a compelling reason for the government to interfere with this careful balance struck by the courts on a case-by-case basis.
The Human Rights Act has not been a perfect tool. The history of LGBT+ rights shows us how difficult litigating for change is with slow, incremental progress. But while imperfect, the European Convention and its UK counterpart, the Human Rights Act, have been essential tools for LGBT+ rights claims. These proposed reforms threaten, at best, to limit the potential for these cases to be brought and to succeed in the UK courts in future. At worst they pave the way for LGBT+ rights in this country to be rolled back.
Nicola Barker is a professor of law at the University of Liverpool. This article draws on her research project ‘From the Human Rights Act to the British Bill of Rights: A Feminist Perspective’, which was funded by the British Academy.