The major concern raised by Brexit for the LGBT community was the risk that hard fought human rights protections for LGBT people emanating from the EU could be diluted post-Brexit.
To a degree our concerns were laid to rest because the PM made clear that any rights protected under EU law would be transposed into UK law post-Brexit and she heralded the so-called Great Repeal Bill as the vehicle that would do this.
Human rights are protected in many different ways under EU law, but the main way of asserting rights within EU law is through the EU Charter of Fundamental Rights (CFR).
That document is the first international human rights treaty binding on the UK that expressly protects people on the basis of their sexual orientation. Article 21 states “any discrimination based on … sexual orientation shall be prohibited.” Wherever the EU is engaged, the Charter applies (it does not apply outside of the scope of EU law). Obviously all the rights in the Charter apply to LGBT people, but the right to dignity, protected by Article 1 is of particular importance.
Last week the Government published its White Paper on the Great Repeal Bill.
Controversially, it makes clear that the government does not intend to convert the Charter into UK law. If the Charter does not become part of UK law the LGBT community will be obvious losers. Some have sought to argue that the protection offered by the Charter can be found in the Equality Act and the Human Rights Act (HRA), which makes the European Convention of Human Rights part of UK law (ECHR). The ECHR is completely independent of the EU. LGBT rights have been read into the ECHR but it does not expressly protect LGBT people.
The CFR goes beyond current UK law and always has. It even includes some international human rights standards not ratified by the UK. The loss of the CFR will be serious for human rights protection in the UK, but no community will feel its absence like LGBT people. There is nothing like A21 CFR in UK law. The Equality Act is a specific piece of legislation and it will not fill that gap and nor can the HRA/ECHR.
Article 21 applies to all aspects of the EU. It is a constitutional equality provision. Neither the Equality Act, HRA nor ECHR have this express status. This matters. The ECHR has been essential in protecting LGBT people but its protection has been limited. You just need to compare LGBT asylum case law under the EU with the ECHR to make that point.
Additionally under the HRA, if an Act of Parliament is clear, that Act has to be applied even if it violates human rights. Under such circumstances all the Courts can do is declare the law incompatible. The CFR is not constrained in this way. And without the CFR & A21 coupled with the right to dignity, what’s to prevent the Equality Act from being tinkered with. We know there are plenty of people in Parliament who think that faith should take precedence over LGBT equality.
And there is the further danger that the HRA will be repealed. A prospective future British Bill of Rights will – no doubt – contain express protection for LGBT people. But I can guarantee that whilst the catalogue of rights within it will be extensive it, its enforcement mechanisms will be limited.
For the first time the gay and lesbian community have a provision that expressly protects us. We need to fight to keep it. Article 21 CFR and the right to dignity must be included in the Great Repeal Bill. But we shouldn’t give up on the rest of the Charter. We need a civil society coalition to fight for it too.
Jonathan Cooper is a barrister specialising in human rights at Doughty Street chambers.