Implementing human rights obligations
26. In light of these significant developments in
relation to sexual orientation discrimination under the European
Convention on Human Rights, it is now clear that discrimination
on grounds of sexual orientation in relation to any matter which
is within the ambit of any of the Convention rights would be very
likely to be in breach of Article 14 ECHR, in the absence of any
compelling justification. In its Departmental Memorandum to the
JCSI, the Office of the First Minister and Deputy First Minister
expressly acknowledges that the right to be protected from discrimination
on grounds of sexual orientation attracts the protection of Article
8 and 14 of the Convention.
27. Sexual orientation discrimination also potentially
engages a range of other rights. Discrimination against gay people
in relation to access to publicly provided services such as housing,
health or education, for example, would be very likely to lead
to breaches of Article 14 ECHR in conjunction with the right to
respect for home in Article 8 ECHR, the right to physical integrity
in the same Article and the right to education in Article 2 Protocol
1. It is also possible that there may be a breach of the right
to an effective remedy in Article 13 ECHR because of the lack
of any means of obtaining redress for the discrimination against
them in the enjoyment of their Convention rights. Rights to non-discrimination
are also protected by other international human rights treaties,
such as Article 26 of the International Covenant on Civil and
Political Rights, Article 2 of the Convention on the Rights of
the Child, and Article 2.2 of the International Covenant on Economic
Social and Cultural Rights.
28. By introducing regulations prohibiting sexual
orientation discrimination, the Government will therefore be giving
effect to our international human rights obligations, making it
less likely that breaches of Article 14 ECHR and other non-discrimination
provisions will be found in future in the circumstances of particular
cases, and less likely that the state of UK law will be found
to be in breach of Article 13 ECHR for failing to provide an effective
remedy for arguable violations of Convention rights.
29. We welcome the premise of both the Government's
Consultation Paper and the Northern Ireland Regulations that there
is now a firmly established principle that it is not acceptable
for someone to be discriminated against because of their sexual
orientation. We agree that people suffering unfair treatment on
grounds of their sexual orientation is unacceptable in a society
which purports to be founded on equal opportunities for all, respect
for the equal dignity and worth of each person and mutual respect
between communities.
30. We regard the right not to be discriminated
against on grounds of sexual orientation as a fundamental human
right, and we note the recognition in international human rights
law that sexual orientation has now joined race and sex as being
a ground for different treatment which requires particularly weighty
justification. We also consider that the Government has an obligation
to protect individuals from such treatment, whether from a public
or a private source, and to provide them with the means to challenge
it. We therefore welcome the Government's proposal to introduce
regulations prohibiting discrimination on grounds of sexual orientation
as a significant human rights enhancing measure, giving more effective
protection in our national law for rights of non-discrimination
which already exist under the Human Rights Act and are already
binding on the UK internationally.
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