Comment: Leaving the UK will make Scotland better for equality

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Joanna Cherry QC writes in response to criticism of the Yes LGBT’s ‘Rainbow Paper’, which argues why becoming independent would be good for LGBT Scottish people.

No one can seriously question the commitment to LGBT rights of the Scottish Government which has introduced one of the most progressive Gay Marriage Acts in the world and whose First Minister flew the rainbow flag above St Andrews House – the home of the Scottish Government – throughout the Commonwealth Games.

With a Yes vote the United Kingdom Supreme Court’s (UKSC) jurisdiction will no longer run to Scotland but this does not mean there will be no legal protection of human rights under Scots law including LGBT rights. Scotland will continue to have its own court system and its own Supreme Courts.

At present all courts in Scotland and the rest of the UK are bound by the Human Rights Act (HRA) and the European Convention on Human Rights (ECHR). However the Tories have promised to repeal the HRA and even Labour have threatened to water it down.

Unlike most countries in the world the UK has no written constitution and therefore no entrenched protection of human rights including LGBT rights.

As the Rainbow Paper points out independence brings with it the promise of a written constitution for Scotland which will be written by the people in a constitutional convention. The Scottish Government has already indicated its commitment to including fundamental human rights and socio-economic rights in such a constitution. In the meantime the interim constitution recently announced by the Scottish Govt incorporates respect for human rights, equality and the ECHR into Scots law.

One of the issues to be discussed by the Constitutional Convention will be the setting up a Constitutional Court for Scotland. In this endeavor they will have many interesting models to look at including not just the UKSC (which has only existed since 2009) but also South Africa and the Republic of Ireland to name but two.

The fatal flaw in Daniel Donaldson’s argument is his failure to appreciate that in the event of independence Scotland will have entrenched legal protection of human rights including the ECHR but if Scotland stays with the UK there is a very real threat that the ability of the UKSC to protect all human rights including LGBT rights will be compromised by the repeal of the HRA.

Furthermore he betrays a fundamental misunderstanding of how written constitutions work in his reference to the Fourie case in South Africa. It was precisely because the human rights and dignity of all people were entrenched in the South African constitution that the South African Constitutional Court was able to ensure that gay marriage would be available. Without entrenched rights this would not have happened.

Joanna Cherry QC is the Convenor of Lawyers for Yes.


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