The European Court of Human Rights has judged that Britain’s legal restrictions on gay sex are incompatible with the European Convention’s guarantee of the “right to a private family life”. The judgment created the predictable furore among the small-minded Little Englanders that make up the Tory party. The Daily Telegraph (slavish mouthpiece of the Tories) said that the decision was no business of the Human Rights Court. “It is not for foreign judges to decide whether or not Britain’s sex laws are fair to the people of Britain”, the paper thundered. “That is a job for our own Parliament.”
And this is the core of the right-wing argument: we don’t want foreigners telling us what our laws should be. Even though we signed up to the European Convention of Human Rights in the fifties, it seems that it is only now that the European Court is giving out reasonable judgments in favour of traditionally oppressed minorities that The Daily Telegraph decides to squawk about it.
Of course, soon we won’t have to ask foreign judges to treat us with dignity and fairness. In fact, there is only a month to go before the European Convention on Human Rights is incorporated into our own law and our own judges will be making decisions in its light.
Naturally the Tories don’t approve. They have now found themselves in the invidious position of having to rubbish the very concept of human rights, simply because this legislation has its origins in Europe.
They have already created scare stories saying the HRA will make it illegal for teachers in boarding schools to stop their pupils having gay sex and that gay couples will be demanding the right to white weddings in Westminster Abbey. The propaganda has only just begun.
First in the ring to condemn the Human Rights Act was Ann Widdecombe, the shadow home secretary, who declared that it will be a “disaster”. “Clever lawyers are going to be crawling through this legislation to find cases to bring,” she told the Daily Telegraph, “Common sense seems to have taken a back seat.”
The London Evening Standard – from the same stable as the Daily Mail and rapidly becoming indistinguishable from it – editorialised: “Now that it will be easier for petty criminals to allege that they have been subject to the illegal use of force, or for any sixteen year old delinquent to claim that their right to engage in sex has been curtailed, a large number of time-wasting, vexatious cases can be confidently expected… There is a real danger that some legal decisions, while technically justified under the Convention, will collide with common sense.”
If we look closely at what the Standard is saying, we see it for the distortion that it is. Why shouldn’t petty criminals be protected from police brutality? Aren’t they human? And why shouldn’t sixteen-year olds (delinquent or otherwise) make the case for their right to have sex if they want to – surely even teenagers are human? Human rights must be universal or they are meaningless; the idea of some people being more equal than others is a contradiction in terms – and deeply conservative. Yet this notion of “partial equality” is precisely what opponents of the HRA seem to be advocating.
Take Melanie Phillips in the Sunday Times. Writing about plans to give gays a better deal in law, she says the whole debate is now driven by the message that “homosexual behaviour is equal in every sense to heterosexual.” “Indeed,” she wrote, “the whole gay rights agenda is based on the premise that homosexuals merely want to be treated equally to anyone else.” She concedes that it is reasonable that everyone should be treated equally regardless of their sexuality, but then spoils it by saying that it is an error to believe that “tolerance must entail approval, when it means we must put up with things of which we don’t approve.” A second mistake, she says, is “to confuse tolerance of individuals with acceptance of their behaviour.”
She proceeds from the assumption, of course, that her own behaviour (presumably as a conventional married heterosexual) is the “norm” from which everything else is an aberration. It doesn’t seem to have occurred to Ms Phillips how breathtakingly arrogant this thinking is. The idea of a plural society, where everyone is not required to be the same, but where diversity is seen as desirable, seems beyond her comprehension.
We have to get to the end of her piece to find out what her real beef is. “Our society has been degraded by its obsessive reduction of sex to a casual experience with no meaning beyond physical sensation. All public sex is an affront to human dignity. If such encounters are an integral part of the homosexual lifestyle, they remain such an affront.”
There is an interesting debate to be had here about the different meanings sex has for men and women, but Ms Phillips has reduced it to the over familiar moralising of the Christian authoritarians.
Anyway, whatever the Right says, the Government is going to have to change the law so that gay men are not arrested, humiliated and punished for something that actually isn’t very important, and which heterosexuals do with impunity. And all thanks to the European Convention on Human Rights.
Whatever else Mr Blair may (or may not) have done, he can congratulate himself on introducing the Human Rights Act. He has given ordinary people the opportunity to correct glaring injustices in their lives without having to spend years hauling through the European justice system.
But, of course, every reform that this Act brings will result in another attack from the conservatives. The Daily Mail has already called for the HRA to be abolished before it has even come in England and Wales (it is already operating in Scotland). The paper commissioned Martin Howe, a barrister and QC “specialising in European law and constitutional affairs” to say: “Of course our laws should protect human rights. But there are British ways of doing so, which can be based firmly on our own history and traditions going back to Magna Carta. It is high time we exercised our option and abandoned this damaging and fundamentally un-British Convention.”
The British way of protecting human rights is obviously inadequate. Of all the Governments who are signatories to the Convention, Britain’s has one of the highest numbers of judgments against it. The “British way” with human rights presumably means The Daily Mail way. And that would mean a regression to the dark ages of mean-minded, narrow, bigoted, compassionless, nasty and unjust legislation. But hopefully the HRA is going to free us from all that. Never again will it be possible to legalise prejudice and discrimination, such as happened with Section 28.
Naturally those whose prejudices were best served by the old system (the one that goes back to Magna Carta, remember?) won’t be best pleased by this modernisation.
In The Daily Mail – which is in high gear over this whole issue – wheeled in Anthony O’Hear, a professor of philosophy to write: “There is no third way between the traditional values of the family and the ideology of political correctness underlying the proposed reforms [of sexual offences]. For that ideology, based on gay and feminist dogma, is profoundly hostile to the concepts of family life and heterosexual sexuality which, for centuries and for good reason, have enjoyed a privileged status under the law.”
But there is more bad news on the way for those who think human rights are just another frivolous expression of political correctness. Another initiative is emerging from Europe – this time a proposed Citizens Charter – that will give even more power to the people. It will guarantee, among other things: “The right to the equality of opportunity and treatment without any distinction such as race, colour, ethnic or social origin, culture, language, religion, conscience, belief, political opinion, sex or gender, marital status, family responsibilities, sexual orientation, age or disability.” It will complement that Convention on Human Rights and move into the area of employment, which the HRA doesn’t cover.
Anything that seeks to include everybody – but everybody – is anathema to conservatives. Their whole philosophy revolves around privilege and special treatment (so long as it is they who are receiving the privileges and special treatment). So, we can expect to see strong and sustained resistance to this Charter, although the Christian Institute had better get its skates on because it is hoped to adopt the final version at the summit of EU leaders in December.
There are some surprising dissenters, though. One is Richard Littlejohn of The Sun, who unexpectedly came out in favour of the European judgment. Over his piece stood the headline “Why I’m backing Europe over gay sex orgies”. He admits that he doesn’t generally have much time for the European Court of Human Rights, calling it “that ridiculous quango”, but in this case he thinks they’re right to rule that what people do in the privacy of their own homes is their business, not the state’s. “If four or five men want to spend the evening playing choo-choo trains with the curtains closed, that is entirely a matter for them, not the local constabulary,” wrote Littlejohn… “In private, consenting adults should be allowed to do what they like. I’m convinced that the vast majority of people would agree with me. It shouldn’t be beyond the wit of the government to frame the law to accommodate that. Without any help from Europe.”
But that’s the point, Dicky. This government – and all its predecessors – have not framed the law in anything but oppressive fashion. And they did need Europe to make them stop persecuting homosexuals. If it weren’t for Europe, nothing would be happening and the laws would remain in force.
Of course, even on our own side there are those who don’t share my Pollyanna-ish optimism about the HRA. Nick Cohen in The Observer worries that British judges are not going to go along with the idea that the HRA will liberalise our constitution. He points out that our legal system has consistently thrown up a bunch of geriatric reactionaries on the bench, and we cannot guarantee that they will reach the decisions that we want them to. The HRA, Mr Cohen informs us, “is hailed as part of Tony Blair’s attempt to create a new consensus. A ‘liberal century’ has dawned, we are told, in which the anti-Tory majority will finally take charge of the country. The difficulty with this argument is that the times are anything but liberal. Hardly a day passes without Blair or Willy Hague proposing some new assault on fundamental freedoms. They know the Human Rights Act is coming in and the judiciary will be able to interfere with their plans, but they carry on without pause… You might reply that our leaders are idiots, who don’t understand what is about to hit them. It’s an attractive thesis, I grant you. On the other hand, they might have taken a harder look at the judiciary than the gibbering conservatives and gushing liberals and concluded that it won’t be too much trouble.”
Well, I go with the gushing liberals. I really feel that the HRA is going to make a difference, and that the Citizens Charter will reinforce it.
Although we may feel devastated at the moment about what happened to Section 28, we can allow Lady Young her moment of glory. Let the old witch cackle while she can – her victory will be short-lived. The European steam roller is on the way, and hopefully it will crush her and her monstrous ilk once and for all.