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Much of the coverage devoted to the European Union (Withdrawal) Bill making its way through Parliament suggests it has one aim: ensuring all EU law is taken into UK law to avoid any legal gaps when the UK leaves the EU on 29 March 2019.
However, one piece of EU legislation is specifically excluded. Clause 5(4) of the Bill states ‘The Charter of Fundamental Rights is not part of domestic law on or after exit day.’
Despite attempts to amend this clause in both Houses of Parliament, and much concern expressed by human rights, civil liberties and LGBTI groups, it seems unlikely it will change before being enshrined into law on Royal Assent of the Bill later in 2018.
The clause affects various rights, but the LGBT community is one group that could be most vulnerable. The EU Charter of Fundamental Rights brings together all the personal, civic, political, economic and social rights enjoyed by EU citizens in a single text. It has been legally binding on EU countries since the signing of the Treaty of Lisbon in 2009, the first and only place specifying a right to non-discrimination for LGBT people.
Co-Vice Chair, IBA LGBTI Law Committee
Article 21(1) of the Treaty states: ‘Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.’
Leonardo Raznovich is Co-Vice Chair of the IBA LGBTI Law Committee. He notes that the UK is the only country in the EU with no written constitutional code.
‘This means the Parliament is empowered to do as it pleases without either the constraints of a written constitutional code or judicial control acts of Parliament,’ he says. ‘The EU Charter fulfils this role within the area of EU competence, but more importantly contains rights that are quite novel and go beyond the human rights protection in UK law.’ Prohibition of discrimination on the grounds of sexual orientation is a key example.
Dr Nikos Skoutaris, a lecturer in EU law at the University of East Anglia, is less convinced by the strength of this protection. He points out that in 2009 the UK, together with Poland, signed Protocol 30 to the Treaty. This states that, to the extent new rights are created by the Charter, they do not apply to the UK or Poland. In effect, the UK was opting out of the Charter, but discussion has continued ever since as to just how strong this opt-out is in reality.
Skoutaris also plays down the importance of Article 21(1) because LGBT protection is contained in other anti-discrimination directives, such as the Employment Equality Directive 2000/78, and that this type of protection appears in other secondary EU legislation. However, what the Charter does offer, he says, is a ‘belt and braces’ approach, covering ‘any discrimination’ including on the grounds of sexual orientation.
Such far-reaching protection is not available in every part of the UK since there is not one, but three separate legal systems operating across England and Wales, Scotland and Northern Ireland. ‘Equal marriage is possible in England, Wales and Scotland; yet is not legally possible in Northern Ireland,’ says Raznovich. ‘This means that British citizens are less worthy of equality if they identify as LGBTI people in Northern Ireland than in the rest of the UK. There is no remedy under UK law against this inequality.’
Raznovich adds that neither the UK Human Rights Act 1998 nor the European Convention on Human Rights expressly protect against discrimination on the grounds of sexual orientation.
Under the current UK government, it seems to be a case of when, not if the Human Rights Act is replaced by a British Bill of Rights, a move Stoukaris believes would be far more serious than not bringing the Charter of Fundamental Rights into UK law.
Looking more widely, Raznovich notes that Prime Minister Theresa May’s dislike for the European Convention on Human Rights is also a matter of record, citing a speech in 2016 where she ‘clearly stated that: “it isn’t the EU we should leave but the ECHR and the jurisdiction of its court”’. Evidently, leaving the ECHR remains a possibility for the current government.
Many people and organisations see the singling out of the EU Charter as a warning to the LGBTI community. Whilst huge strides have been made over the past 20 years in terms of ensuring LGBTI rights are recognised in law, for many this does not translate to their everyday lives where casual discrimination and inequality is still experienced on a daily basis.
As can be seen in the case of Bermuda, the UK’s oldest overseas territory, rights can be taken away very easily. In January 2018, Bermuda’s Parliament passed a bill cancelling a Bermudan Supreme Court judgment establishing marriage equality for same-sex couples.
Without the secure protection of legislation, such as the Charter of Fundamental Rights, the rights of not only the LGBTI community, but other minorities and vulnerable groups, could be rescinded in future.
Paul Crick is a freelance writer and editor. He can be contacted at firstname.lastname@example.org.