Analysis: UK’s Magna Carta 2000
PlanetOut,
December 22, 2000
By Katherine Bell
SUMMARY: The impact of Britain’s new Human Rights Act on gay and lesbian issues
is already evident, and activists are studying its implications for the future.
On October 2, Britain put into effect what could be the most radical change to its
legal system since the Magna Carta was signed in 1215. The UK’s judicial system has
always been based on negative rights, meaning that you can do anything you want unless it
is specifically prohibited by law. Until now, the country has never had a single written
document that outlines all of the basic rights of its citizens.
The Human Rights Act (HRA) codifies into domestic British law rights that have been
technically available to citizens since the UK ratified the European Convention on Human
Rights in 1951. The Convention was the core treaty of the Council of Europe, formed after
World War II to protect the rights and freedoms of people across Europe, thereby guarding
against totalitarian regimes. In 1959, the European Court of Human Rights was formed in
Strasbourg, France to adjudicate the Convention rights, although the British government
refused its citizens access to the Court until after the Labour party came to power in
1964.
The European Court of Human Rights should not be confused with the European Court of
Justice, which is the judiciary arm of the primarily economic European Union. The Court of
Justice focuses on economic and employment issues.
Bringing a claim to Strasbourg is arduous and costly, as cases can take up to five
years. But for years, more claims were brought against the UK than any other European
nation. Britain has been forced to revise its laws again and again in response to Court
decisions, several of which have involved gay rights. Gay men and lesbians were allowed to
serve openly in the British military after a ruling by the European Court. More recently,
the Court ruled in favor of a man, known only as ADT, who had been arrested on the basis
of videos found in his home by police. He claimed that the infamous " gross
indecency" statute and its ban on group sex among men in private interfered with his
rights. The current British government forced a bill to equalize the age of consent
despite the dissenting House of Lords, in part because a case brought against the UK by
two sixteen year olds was on hold in Strasbourg, pending the promised revision of the law.
The new Human Rights Act means that Britons will no longer have to go to France to
argue for their Convention rights. Cases will remain expensive, but they will be resolved
in local courts, and they won’t require that all other avenues be exhausted first.
Unlike American justices, British courts will not be able to overturn legislation that
conflicts with the HRA. Instead, they will be required to alert Parliament to
discrepancies in the law.
When the Human Rights Act went into effect, Conservatives like shadow Home Secretary
Ann Widdecombe predicted a flood of "frivolous" American-style lawsuits, and a
slippery slope leading to such horrors as same-sex marriage. The truth is that nobody
knows how the Act will play out. "There’s a certain amount of testing the waters
going on," said Sebastian Sandys, press officer of the Stonewall Lobby Group. But he
doubts that same-sex marriage will be legalized under the HRA. While the clause that
protects the right to marry will allow Prince William and Prince Harry to marry Catholic
women (previously forbidden for future kings), it clearly limits marriage to one man and
one woman.
But there is plenty of language in the Human Rights Act to bolster same-sex
partnerships. "We want to have partnerships recognized and valued" said Sandys,
especially regarding issues of next of kin, health care and visitation rights,
inheritance, pensions, and housing. In fact, one of the first cases presented in London
under the HRA was that of a 78-year-old gay man in danger of losing his rent-controlled
lease after the death of his partner, despite the fact that both men had lived in their
Kensington apartment for 25 years. If the couple had been heterosexual and married, the
lease would have passed automatically to the surviving spouse.
Stonewall is focusing first on instances in which the law favors heterosexual unmarried
couples over homosexual partnerships; an example is criminal injuries compensation. In
England and Wales, if someone is killed in a violent crime, his or her heterosexual
partner is eligible for compensation, whether or not they are married. After the Admiral
Duncan pub in London’s queer Soho district was bombed in 1999, the husband of Andrea
Dykes, a straight woman who died in the explosion, was able to claim damages, while the
partner of the Dykes’ friend Nick Moore, a gay man who did not survive the bombing,
was not (see PlanetOut News of July 25, 1999). Stonewall is planning to take either that
case, or another like it, to court under the Human Rights Act.
The Human Rights Act may also offer an opening to challenge Section 28, the legislation
that prohibits local governments from devoting resources to the "promotion" of
homosexuality in the schools. The government has already acknowledged that Section 28 is
inconsistent with the rights to education and freedom of expression guaranteed by the HRA.
According to Debbie Gupta, director of policy and public affairs, Stonewall is exploring
the possibility of mounting a challenge to Section 28, but the problem is finding the
right case. "How do you prove that Section 28 has impinged on your rights?" she
said. "You’d have to show a very clear example of that."
Ironically, the main architect of the European Convention on Human Rights was an
avowedly homophobic English lord, Maxwell Fyfe, Earl of Kilmuir, who declared, "I am
not going down in history as the man who made sodomy legal." Fyfe would probably be
appalled by his legacy, as the Council of Europe and the European Union (EU) have together
crafted an astonishingly forward-looking body of law. Europe already leads the world by
most gay rights measurements, and even more radical changes are on the horizon, as the EU
prepares to enact job protections for gay employees, and countries across the continent
grapple with same-sex partnerships. "It oughtn’t to be radical,"
said Sandys. But it is — and it’s happening right now in Europe.
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