The Hungarian Parliament, during Pride Month, passed a law banning the portrayal of homosexuality and gender affirming surgery in education materials and TV programmes addressed to children under the age of 18. Law T/16365 amends various child protection laws, conflating pornographic content with discourse about homosexuality and trans people. The legislation follows moves in Russia and Poland to roll back the human rights of LGBT+ individuals.
This law certainly appears to breach human rights, as guaranteed by the EU’s Charter of Fundamental Rights. It is contrary to human dignity and violates the principles of non-discrimination and freedom of expression. There are, however, difficult obstacles to EU enforcement of human rights law. One enforcement mechanism is Article 7 of the Treaty on European Union (TEU). This strips a Member State of its voting rights. This is unlikely to be used, however, as the decision to invoke Article 7 must be taken unanimously by the Members. Poland and Hungary have made it clear they will block any such move against the other.
The Commission is gearing up to take action through an infringement action against Hungary, but these processes will be subject to political and legal difficulties. Article 51 of the Charter limits the scope of its human rights protections to instances where Members are ‘implementing Union law’. The Commission’s letter to Hungary spoke about violations of the Audiovisual Media Services Directive and the e-Commerce Directive – which does not, on the face of it, sound to the point. But for the Charter to be of assistance, the Commission needs to find an EU law to hang its human rights case on. Intricacies of the law aside, this is a long process and will take some time to play out.
In Britain, there is much comment on the EU’s failure to tackle the rule of law crisis. The issue is sucked into continuity Brexit discourse. But by making this about us and our desire to relitigate our voting choices in 2016, we miss the fact that we can actually do something about this ourselves.
This Government likes to claim it wants ‘Global Britain’ to be a beacon of human rights. Dominic Raab’s offer of visas to Hong Kongers with British National (Overseas) status is couched in these terms. Yet only recently was Johnson courting Orbán in No 10. The Government is not merely sitting on its hands when it comes to protecting LGBT+ people; it is extending a welcoming hand to those who actively harm LGBT+ people.
A Labour party that aspires to have a serious and effective foreign policy cannot simply ignore attacks on LGBT+ people in a country so close to us, and one that our Government has recently warmly welcomed to Downing Street. Rather than watching on and doing nothing as our partners try to find a solution, the UK should be proactive in demonstrating its global commitment to human rights and, specifically in this case, the post-war European order of human rights. We should challenge Boris Johnson to prove, as he promised after the referendum, that the UK has left the EU but hasn’t left Europe.
There are options available to our country. For now, the UK remains a signatory to the ECHR – as does Hungary. Article 33 of the ECHR empowers signatories to bring a case against other signatory states. Labour should call on Dominic Raab to initiate a suit against Hungary and invite other signatories to the ECHR to join us. It is a legal and diplomatic weapon left cold and unused in the armoury.
This action would clarify the position of the UK Government when it comes to the human rights of LGBT+ people. The UK Government’s present approach on human rights is to have its cake and eat it. The dividing line ought to be simple: the Government either stands with Orbán or stands with LGBT+ people. It can continue down the path of culture war nastiness by aligning itself with an illiberal populist who conflates homosexuality with paedophilia, or it can take practical action in the defence of human rights.
The assault on LGBT+ rights in Europe is part of a global reactionary turn – one that we must make our business to fight through actions as well as words.