Comment: The Tories should not withdraw Britain from the European Convention on Human Rights

Robert Wintemute January 6, 2014
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Writing for, Professor Robert Wintemute warns against plans by the Conservative Party to withdraw Britain from European arrangements protecting human rights as it could have serious repressions for the LGBT community.

A PinkNews poll of LGBT voters, published on Boxing Day, has revealed that support for the Conservative Party has risen from 11% to 30% since the 2010 election.

Understandable gratitude for David Cameron’s sticking with the Marriage (Same Sex Couples) Act 2013, despite strong opposition in his own party, has made many LGBT voters think that, at last, they can forgive the Conservatives for Section 28 and feel safe voting for them. The anti-LGBT “nasty party” of Theresa May’s 2002 conference speech, known for “demonising minorities” and failing to reflect Britain’s diversity, is gone. Its LGBT-friendly replacement can be trusted, and has earned a “marriage dividend” at the next election.

This would be a big mistake for LGBT voters, and voters from ethnic and religious minorities, be they of Asian, African or Caribbean origin, or Hindu, Jewish, Muslim or Sikh. The autumn 2013 conference speeches of Home Secretary Theresa May and Justice Secretary Chris Grayling made it clear that the “nasty party” is back in a different guise. This time, it has become the Anti-Human-Rights Party.

If the Conservatives win a majority in 2015, they plan to withdraw from the European Convention on Human Rights, and repeal the Human Rights Act 1998, to make it impossible to enforce the Convention, including its protection against discrimination, in the European Court of Human Rights, or in UK courts. Justice Secretary Chris Grayling confirmed last week that he is working on the details.

As May put it in her conference speech, “Labour and the Lib Dems will have to explain why they value the rights of terrorists and criminals more than the rights of the rest of us.” In his speech, Grayling added that “[our] Supreme Court should be in Britain and not in Strasbourg”.

LGBT and other minority voters should think long and hard before supporting the Conservative plan to pull Britain out of the 63-year-old European human rights system. The Convention (as interpreted by the Court) has established minimum human rights standards for 47 European countries with 800,000,000 people, represents the most important lesson learned from World War II, and serves as a living “never again” memorial to all those who died in the Holocaust. In countries where equal rights for a minority have been achieved, the Convention protects against regression, by “locking in” rights against a change in political opinion, and providing an “early warning system” that can be invoked at the first sign of an attempt to revive discrimination.

In countries where a minority’s rights are not equal, the Convention can be used to challenge discriminatory laws. The system works because it is based on reciprocity. All democratic European countries have agreed to be supervised by the Court and to comply with its judgments because, post-1945, violating human rights is no longer a prerogative of national sovereignty. Compliance must be with every judgment. Governments are not free to ignore judgments with which they disagree.

In his conference speech, Grayling claimed that the Convention has been “twisted by political correctness”. LGBT voters in Britain have been among the leading beneficiaries of this “political correctness”. Many of the most important advances in LGBT equality were forced on Britain by the European Court of Human Rights, which simply pointed out that we were lagging behind the majority of European countries. It was because of judgments of the Court (or a report of the former European Commission of Human Rights) that we decriminalised sexual activity between men in Northern Ireland (Dudgeon v. UK, 1981), equalised the age of consent (Sutherland v. UK, 1997), ended the blanket ban on LGB members of the armed forces (Smith & Grady v. UK, 1999), and finally passed a law allowing legal recognition of gender reassignment (Christine Goodwin v. UK, 2002).

Although LGBT Britons have needed the Court less since 2002, it remains a safeguard against relapses by future UK governments. More importantly, it provides ongoing protection for LGBT people in Eastern Europe, who desperately need it. If Britain were to withdraw, it would remove protection that LGBT Britons might need in the future, and undermine the Convention system, jeopardising LGBT people in Eastern Europe. Without Britain setting an example, by remaining in the system and complying with all of the Court’s judgments (including on the right of some prisoners to vote), it is unlikely that Russia will comply with the Court’s judgments on LGBT human rights.

The Conservative Party wants to leave the Convention so that Britain will be free to deport suspected terrorists to countries where they may face torture (or trials in which evidence obtained through torture will be used against them), and to deport convicted criminals regardless of the impact on the British partners and children they would leave behind. The Convention is a necessary brake on the power of the state to treat unpopular people badly. If it is removed for suspected terrorists and convicted criminals, it will be removed for LGBT people and other minorities, who must always fear discrimination at the hands of the majority. Unless one is convinced that homophobia and racial or religious prejudice have disappeared forever in Britain, scrapping European protection of our human rights would be taking a very big risk.

In fact, it is the Conservatives who are taking a big risk with their electoral chances. Their obsession with being as anti-European as UKIP will alienate many LGBT and other minority voters who might otherwise consider them. The prospect of Britain withdrawing from the Convention is frightening. But, as with many fears, the likelihood of its happening is small.  What is more likely is that the Conservatives will lose the 2015 election, and their new nastiness, expressed in a misguided campaign against the European Convention on Human Rights and the Human Rights Act 1998, will be one of the causes.

Robert Wintemute is Professor of Human Rights Law at King’s College London.

As with all comment articles the views expressed do not necessarily reflect those of

Related topics: Conservative Party, Europe, european court of human rights, human rights, lgbt community, LGBT rights, Professor Robert Wintemute, Robert Wintemute, tories, Tory party

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