Joint Committee On Human Rights Appendices to the Minutes of Evidence

45.  Memorandum from Stonewall

  1.  We have considered the questions posed by the Committee in the lights of our own experience in supporting the quest for human rights for lesbians and gay men.

  1.1  We have therefore concentrated on answering those questions 1, 4, 6 and 7, on which we feel most qualified to make a contribution.

2.  Stonewall's experience of lesbian and gay human rights issues

  The cases we have been principally involved with are Sutherland v. UK (concerning the equal age of consent), Smith & Grady v. UK, Lustig Praen & Beckett v. UK (concerning the ban on lesbians and gay men in the armed forces), ADT v. UK (concerning definitions of privacy in gross indecency law).

  2.1  Each of these cases has led to significant changes in law and public policy in England and Wales and Scotland.

  2.2  We are also intervening in two other cases before the European Court of Human Rights, Karner v. Austria (rights of succession of death of a tenant), Frette v. France (application to adopt). Both these issues also involve issues of public policy relevant in this country.

  2.3  Under the Human Rights Act we are supporting the case of Shirley Pearce v. The Governors of Mayfield School, and MacDonald v. MOD both of which concern discrimination in the workplace and the scope of the Sex Discrimination Act.

  2.4  While a few of the applicants qualified for legal aid in most cases they were dependent on the resources of Stonewall, which is a small organisation totally reliant on funds donated to us by supporters. Stonewall has also been fortunate in being able to rely on the help of a number of distinguished lawyers. There is, we believe, considerable merit in a "self help" approach to human rights law. It means those affected "own" and support the whole process. However, as gay rights issues emerge onto the public agenda we believe that there is a strong case for a Human Rights Commission.

3.  Question 1: Benefits of a Human Rights Commission

  We believe the benefits of a Human Rights Commission are:

    —  a more systematic approach to the development of lesbian and gay human rights;

    —  an expert body able to advise both governments and public authorities;

    —  assistance to those whose rights under the Convention have been violated;

    —  human rights education. As outlined below homophobia still flourishes in our society, but there is also considerable evidence of overlapping prejudice towards minorities.

  We deal in more detail with some of these points below.

4.  A more systematic approach

  The cases of MacDonald and Pearce illustrate the tangle that has developed between human rights law and discrimination law. The problem is posed most acutely in the case of MacDonald. Mr MacDonald was dismissed from the armed forces because he was gay—an action that the European Court of Human Rights has already ruled to be an unjustifiable breach of his rights under Article 8. Thus he has an indisputable human rights claim, however he has no domestic remedy unless he is able to demonstrate that the Sex Discrimination can cover sexual orientation or that this legislation is incompatible and there is a ruling to this effect.

  4.1  It is perhaps ironic that the judgment of the ECHR in Smith & Grady found in favour of the applicants' complaint that they lacked an effective remedy under Article 13: "Everyone whose rights and freedoms as set forth in the Convention are violated shall have an effective remedy before a national authority".

  4.2  Article 13 is, of course, excluded from the Human Rights Act as the Act is intended to provide the domestic remedy. However, following the judgment of the Court of Sessions in Mr MacDonald's case, pending further appeal, it is clear that Mr MacDonald does not have a domestic remedy and his only recourse is to go to Strasbourg.

  4.3  We believe that a body that could think through some of these contradictions and anticipate and advise on such lacuna and pitfalls would be helpful to all parties and to the development of more joined up government policy.

  4.4  We are conscious that the area of family law and the rights of same sex partners and parents is likely to assume greater significance in the coming years. Again we believe that it would be helpful in the development of public policy to have a body that could advise government and public bodies on the human rights implications of existing and future law and policy.

5.  Advice to government and public authorities

  As set out above there is, we believe, a strong case for incorporating human rights expertise in government decision making. In relation to public bodies the need for advice on human rights issues is very strong. This is particularly apparent in the area of lesbian and gay human rights. The Committee will be aware of the controversy over the repeal of Section 28 last year. In fact the legislation was passed with a statement of incompatibility from the Minister and there is still huge confusion among local authorities and schools about its effect and the impact of the Human Rights Act.

  5.1  As the Committee will also be aware the EU Framework Directive on Discrimination requires the government to introduce legislation making it unlawful for employers to discriminate on grounds of sexual orientation by 2003. This leaves as unresolved territory matters relating to the provision of goods and services and the standards expected of public bodies.

6.  Legal assistance

  There is no body at present that can assist lesbian and gay applicants who wish to make a claim under the Human Rights Act. Nor can any of the existing Commissions fund such claims. The development of the law in this area is therefore dependent on whatever resources organisations like Stonewall can put together. This is unjust and unacceptable.

7.  Human Rights Education

  We enclose a synopsis of the results of a recent survey that we commissioned from MORI. We believed that there was considerable evidence of overlapping or "joined up prejudice" and this phenomenon is demonstrated by the survey.

  7.1  We know from our own experience that the public are much more persuaded to support the rights of lesbians and gay men if the claim for such rights is situated in the context of the more universal values of human rights and equality.

  7.2  At present in this country there is no public body that can act as an advocate for human rights. In our view this seriously weakens the government's attempts to challenge discrimination against minorities. The principle of equality can only have real effect in our society if it can be demonstrated that it is the right of every citizen, not a series of special measures to protect certain groups.

8.  Question 4: Single body or separate bodies for Scotland and Wales

  We consider that there should be separate commissions for England, Scotland and Wales. In Scotland there is a separate legal and judicial system and that, we believe, in itself justifies a separate commission. Additionally a key function of any commission is to work with the relevant government body and to educate, influence and advise public bodies and institutions. These functions could not, in our view, be successfully carried out from London. Our Scottish office, Stonewall Scotland, has already submitted evidence to the Scottish consultation in these terms.

9.  Question 6: Relationship between Human Rights Commission and other statutory Commissions

  We believe that this is a difficult issue, particularly from our standpoint as, of course, there is no body at present that has any responsibility for dealing with discrimination against lesbians and gay men. We have never advocated a Lesbian and Gay Commission and argue in the long term for one Equality Commission and one Equality Act.

  9.1  One great benefit for us that would be provided by a Human Rights Commission is that it would, we assume, include in its brief issues relating to the human rights of lesbians and gay men.

  9.2  In answer to the question, however, we do see, in principle, a distinction between the work of a Human Rights Commission and that of any other Equality Bodies. The position of lesbians and gay men in the military provides a case in point. The crucial human rights issues were adjudicated by the ECHR. If a Human Rights Commission had been in existence its views on the blanket ban could have been sought before the government decided to oppose the application. However, a decision on the human rights violation does not in itself address all the issues involved in implementing a new policy. This work, it would seem to us, would be better undertaken by an appropriate Equality Commission with this brief.

10.  Question 7: Independence and accountability of Human Rights Commission

  We favour a system of accountability to Parliament rather than to a government department.

  10.1  We also believe that the head of any Commission should be able to act as an advocate for human rights and that the office should invest in a strong communication department.

  10.2  While it may be difficult to reconcile the highest principles of legal integrity and impartiality with a role of persuasion and communication the maximum effect of a Human Rights Commission will be met by marrying those functions.

6 July 2001

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