Joint Committee On Human Rights Sixth Report


2  The right of non-discrimination on grounds of sexual orientation

Introduction

21. The Consultation Paper states that there is now a firmly established principle that "in a modern and diverse society, it is not acceptable for someone to be discriminated against because of their sexual orientation."[28] It notes that this principle has become established largely because of legislative steps such as equalising the age of consent for gay men, repealing s. 28 of the Local Government Act 1988, prohibiting sexual orientation discrimination in the workplace and introducing civil partnerships.

The relevant human rights standards

22. The Consultation Paper does not mention that the principle that it is wrong to discriminate on grounds of sexual orientation has also in recent years become established as an important human rights standard, particularly under the European Convention on Human Rights. As our predecessor Committee pointed out in its report on the Civil Partnership Bill,[29] it is now established in Convention case-law that a difference of treatment based on sexual orientation is covered by Article 14 ECHR (which guarantees enjoyment of the other rights without discrimination on certain grounds), and that where sexual orientation is the ground for different treatment, there is a need for particularly weighty and convincing reasons to justify such a difference of treatment. The European Court of Human Rights has held, for example, that the refusal to allow a same-sex partner to succeed to the lease of his deceased partner was in breach of Article 14 in conjunction with the right to respect for home in Article 8 ECHR.[30] As our predecessor Committee observed, although this case concerned a particular social protection for security of the home, the reasoning behind it is of wider application.

23. This recognition by the European Court of Human Rights that different treatment on grounds of sexual orientation is not only covered by Article 14 ECHR but requires particularly cogent reasons in order to be justified, has also been given effect under the Human Rights Act 1998 by the House of Lords in Mendoza.[31] In that case the Law Lords held that the Rent Act's protection for spouses or unmarried cohabitees of deceased tenants now had to be interpreted so as to include same-sex partners within the scope of the protection. Protecting the security of tenure of heterosexual unmarried couples but not same-sex couples was a difference of treatment based solely on sexual orientation and could not be justified as being necessary to protect the traditional family. The House of Lords therefore found a breach of Article 14 ECHR in conjunction with the right to respect for home in Article 8, and remedied the breach by interpreting the statutory words so as to extend the scope of the protection to same-sex couples.

24. Baroness Hale grounded the human rights guarantee of equal treatment in the foundational democratic principle that each individual has equal value:

"Democracy is founded on the principle that each individual has equal value. Treating some as automatically having less value than others not only causes pain and distress to that person but also violates his or her dignity as a human being. The essence of the Convention, as has often been said, is respect for human dignity and human freedom … Power must not be exercised arbitrarily. If distinctions are to be drawn, particularly upon a group basis, it is an important discipline to look for a rational basis for those distinctions."[32]

25. We note that in a recent case, Secretary of State for Work and Pensions v M, the House of Lords held by a majority of 4-1 (Baroness Hale dissenting) that treating unmarried same-sex couples differently from unmarried different-sex couples in relation to their liability for child support was not a breach of Article 14 ECHR because it did not fall within the ambit of any other Convention right, and even if it did the difference in treatment was justified by the need to allow the Government time to change the law in this area.[33] We find the reasoning in this case difficult to reconcile with that of the European Court of Human Rights in Karner v Austria and of the House of Lords itself in Mendoza, and we doubt whether, as a matter of Convention law, the European Court of Human Rights will reach the same conclusion.

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.


28   CP para. 2.2. Back

29   Fifteenth Report of Session 2003-04, Civil Partnership Bill, HL 136, HC 885, at para. 10. Back

30   Karner v Austria (2003) 38 EHRR 24. Back

31   Ghaidan v Godin-Mendoza [2004] UKHL 30; [2004] 2 AC 557. Back

32   Ibid., at para. 32. Back

33   [2006] UKHL 11, [2006] 2 AC 91. Back


 
previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2007
Prepared 28 February 2007