Barrister Jonathan Cooper OBE of Doughty Street Chambers looks at the protections guaranteed by the EU Charter of Fundamental Rights and the consequences of its loss, especially for the LGBT community.

Does it matter that the government is proposing to jettison the EU Charter of Fundamental Rights? If David Davis gets his way in the House of Lords, where the EU Withdrawal Bill is about to be debated, the Charter will cease to have effect in UK law after Brexit. Despite a well organised campaign by human rights organisations backed up by the opposition parties, the House of Commons by a slender majority voted to ditch the Charter. Losing the Charter matters. We will all be affected if it goes, but the LGBT community will feel its loss more than most. The Charter is the only international human rights treaty that expressly forbids discrimination on the grounds of sexual orientation.

The EU Charter applies whenever EU law is engaged. The extent of the engagement required for the Charter to kick in is not clear cut but if EU law touches the issues that are being challenged, it should be assumed that the EU Charter applies. For example, the Charter will be relevant to the Carillion affair if there is a transfer of undertakings. Asylum law is another example. All aspects of refugee law are governed by EU law. It’s the same for health and safety and most aspects of employment and discrimination law. It is fair to say that anything relevant to the functioning of the single market will engage the Charter. Currently (pre-Brexit), the Charter, therefore, touches most aspects of everyday life in the UK. Its loss is meaningful and real and it will affect us all. And to be clear there is not, and never has been, a UK opt out to the Charter.

The Charter provides much wider human rights protection than UK law. The rights it contains are much more extensive than the rights in the European Convention on Human Rights (ECHR), for example, which is part of UK law because the Human Rights Act (HRA) has made it part of our law. Some rights overlap but the Charter contains many more rights. Most notably from an LGBT perspective, the Charter contains a right not to be discriminated against on the grounds of sexual orientation and the right to marry is gender neutral. The enforceable right to human dignity is also particularly relevant. The European Court in the early ’90s had already established that trans men and women are protected by European equal treatment laws.

The Charter became part of UK law as a result of the Lisbon Treaty. Parliament gave that Treaty effect in UK law. It came into force at the end of 2009.

The Charter prevents EU member states from violating the Charter when EU law is engaged. Article 21 of the Charter forbids discrimination on the basis of sexual orientation. Perhaps the best LGBT example of this is Adrian Coman’s case. Adrian married his husband, Clay, in Brussels where Adrian was working. Adrian is Romanian, Clay is American. They wanted to settle in Romania. Because same-sex unions are not legally recognised in Romania, the Romanian authorities would not acknowledge Clay as Adrian’s spouse. Adrian and Clay brought a case against the Romanian authorities. It was referred to the EU’s Court in Luxembourg. We haven’t had the final judgment yet, but that Court’s Advocate General (AG) has found that not to recognise Clay as Adrian’s spouse for the purpose of EU free movement rights is in violation of the EU Charter.

Even the most passionate EU federalists would accept that the rules governing marriage in each Member State are a matter for that State (subject to general principles of human rights law). The Charter could not impose equal marriage on Romania, but, at the same time, it could not countenance discrimination on the basis of sexual orientation. Adrian and Clay cannot be discriminated against in the enjoyment of their free movement rights because they are gay. Would the AG have been able to find for Adrian and Clay without the Charter? Almost certainly not.

It is this catalogue of rights that the government has opted not to include as part of retained EU law post Brexit. That free standing right not to be discriminated on grounds of sexual orientation will cease to be part of UK law post Brexit if the House of Lords does not amend the EU Withdrawal Bill to retain it. Does it matter? Yes. The exclusion of the Charter particularly matters to LGBT people. Don’t dismiss Adrian’s case because it involves Romania and not the UK. Adrian’s case proves the power of the Charter’s right not to be discriminated against on the basis of sexual orientation.

A helpful example which shows the power of the Charter is the right to be forgotten (essential in the social media age). It was forged out of the Charter. Without the Charter we’d have less protection over our personal data. The case that established the right to be forgotten was against Google in Spain, but the right applies across the EU and as a result of that case data protection rights have been magnified in the UK.

We never know when we will need our human rights. That’s the point of them. In a recent article in The Guardian, I speculated and gave the example of B&B owners in the future being given the right in law to opt not to allow LGBT couples to stay in their homes. Current cabinet members have expressed sympathy for that position. The battle between faith and LGBT rights is ongoing. If such a provision was passed it would supersede the Equality Act. Does the HRA/ECHR have the teeth to prevent it? Possibly not. If the Charter is still in place it would be our principal source of protection. To continue the battle metaphor, ditching the Charter is like losing our artillery. We are left with tactics provided for by the ECHR which may or may not be successful. Returning to Adrian Coman’s case, could the ECHR have guaranteed his rights in the way that the Charter has? In my humble opinion, no.

Is the B&B scenario I suggest likely? Hopefully not, but gone are the days when we knew that George Osborne and David Cameron wouldn’t countenance such a proposition. I also do not believe that Theresa May wants to make LGBT people feel vulnerable. However, there are such competing interests in government nowadays that nothing is certain and LGBT rights have dropped way down the agenda, if they’re even on the radar at all. The loss of LGBT rights will be an unintended consequence of Conservative Party policy in relation to Brexit. The decision to ditch the Charter is a political one. Brexit does not mandate a diminution of human rights protection in the UK.

As I say in my Guardian article, the government could have opted not to make the Charter part of retained law and replaced it with something comparable or better. The Equality and Human Rights Commission have proposed a free-standing right to equality. The government could have worked with them on that. Tory MP Dominic Grieve has suggested similar ways to retain the same level of protection. These have also fallen on deaf ears. I would welcome the opportunity to work with the government to secure a Brexit where there is no diminution of human rights protection. If the Brexiteers were canny, they would replace what they are planning to take away with the EHRC’s proposal for a free-standing right to equality. That would muffle their critics (and something good would have come from Brexit).

Given her Downing Street speech when she became Prime Minister, it is surprising that Theresa May has not chosen to mitigate the effects of Brexit. The 36 per cent of the electorate that voted to Remain are now feeling that they are being doubly punished by Brexit. Not only do they lose their citizenship, they also lose large swathes of their human rights protections. Do the 37 per cent who voted to Leave have the mandate to take those rights away? Does leaving the EU require the loss of the rights that we have been guaranteed through EU membership? Those rights are guaranteed by the Charter. The Charter is their only material source.

I am not in the business of scaremongering but it is counter-intuitive to take away rights protection. There is even a question in international law as to whether you can renounce human rights treaties once they’ve been affirmed. Yet, the government is prepared to remove the only treaty that specifically protects those who are discriminated against on the basis of their sexual orientation in international law. They’re not enforceable domestically but women will still have the UN’s women’s treaty, children will have the Convention on the Rights of the Child, Race has CERD, those with disabilities the Disability Convention. The Charter is much more powerful but at least those groups have those treaties. In the absence of the Charter, the LGBT community have nothing that expressly protects us.

The Equality Act is great and in places it offers deeper protection than the Charter, but the Charter’s scope is much wider. Westminster can also amend that Act as my hypothetical example above in relation to B&Bs shows. And, don’t forget, a principal source of the Equality Act is the Charter.

We need to preserve what we have. Why is Brexit a mandate to take away our human rights protections? As a community we are particularly vulnerable to the whims of others. The struggle for our rights has been hard fought. Many lives have been destroyed along the way. We must fight equally hard to retain them.