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
We believe the benefits of a Human Rights Commission
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
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 gayan 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
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