Is the EU breaching its UK treaty by failing to protect LGBT rights?

18 June 2021

12:52 AM

18 June 2021

12:52 AM

Has the EU Commission lost any sense of moral value? This week, Hungary, an EU member state, voted to impose bigoted and oppressive laws on its LGBT citizens. This amounted to a clear breach of many of our domestic laws – and it is a breach of the shared Human Rights laws. Yet the EU’s response has been dismal. Is it time for Britain to show solidarity with LGBT Hungarians – and walk away from its treaty with the EU?

The EU Commission said it is aware of what is unfolding in Hungary and that:

‘When protecting children from harmful content it is important for member states to find the right balance of relevant fundamental rights, such as the freedom of expression and non-discrimination’

But this falls far short of what it needed to say.

Does this response mean the EU thinks children should be protected from knowing gay people exist? Surely, whatever your politics, there is no balance to be struck when it comes to ensuring LGBT people have basic protection in law?

This isn’t the first time that Viktor Orban’s government has sought to make life difficult for gay people. Back in December, Hungary banned same sex parents from adopting children. The EU’s response was, again, predictably weak. And it seems that the EU’s refusal to make Hungary’s government pay the price for its shameful policies has ensured a continuation of this worrying crackdown.

The new law effectively prevents children being told that gay people exist. So Radio 4 show, The Archers – which has the double of both openly gay characters, and now an openly bisexual one – could be banned in Hungary before a watershed. And what about Harry Potter: is that now for adults only in Hungary?

As well as breaching the international laws we share, these new laws breach EU law. That is because Hungary’s actions breach the Charter of Fundamental Rights and the European Convention on Human Rights, as well as the pithily titled, Audiovisual Media Services Directive and the Unfair Commercial Practices Directive.

Lots of law breaking.

Yet the EU commission has chosen to ignore clear and apparent breaches of the law provided that the right balance is struck. Does it also endorse the idea that it is necessary to protect children from knowing lesbians exist? Is it really saying that you can ban LGBT people from TV?

The idea that children need to be protected from the existence of people who are not wholly (or in part) heterosexual was a toxic and stupid idea. The damage done to the lives of LGBT people was recognised as wrong.

But far more importantly, we all enshrined the idea that we would never do it again in our laws. If you want to oppress LGBT people, a political view, you can’t do so because we brought the idea that you mustn’t in to law. And we are told that the EU is a creature of law.

The UK government has extensive powers under the treaty it signed with the EU. The UK has committed in law to apply that treaty. In fulfilling its legal obligation to uphold the treaty the UK must now consider using them.

Under Article SERVIN.1.3, the UK can suspend trade and capital (money) movements to EU investors or service providers in order to protect human rights. If the UK government believes it can protect an LGBT person in Hungary then it must do so by using these powers.

The entire treaty is based upon the promise that both parties will protect and uphold human rights. This is a legal obligation, on both, to call the other out if they do something so wrong as to oppress marginalised people. Article LAW.GEN.3 makes that very clear. It expressly recognises the EU ‘and its Member States’ are bound both by human rights law and by the Charter of Fundamental Rights – the things Hungary just broke.

It puts an obligation on the EU and the UK to hold the other to account. Belatedly, the EU Commission president, no doubt in response to public outcry, sent a tweet promising to ‘investigate’. But there is nothing to investigate here. Hungary is in the wrong.

To its credit, the EU parliament has confirmed Hungary is in breach of the rules. Ursula Von der Leyen can investigate the stable door all she wants, it’s open; the horse bolted. But whatever the Commission’s investigation decides, one thing is all too certain: the EU’s response is likely to be weak and insufficient.

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