The home secretary has accused Europe’s human rights watchdog of undermining the case for Britain to remain a member of the European Convention on Human Rights after it criticised the government’s stance on transgender rights and Palestinian protests.
Senior government sources said Shabana Mahmood took a “dim view” of claims made by the Council of Europe that the government’s treatment of trans people in the UK and that the arrest of those supporting Palestine Action could breach the European Convention on Human Rights.
The claims were made in a letter to Mahmood and senior MPs by Michael O’Flaherty, the council’s human rights commissioner, after a visit to the UK. His role is to identify possible shortcomings in human rights law among countries that are signatories to the convention.
A senior government source said Mahmood “fundamentally disagrees with the assessment” made by O’Flaherty and warned “it doesn’t help sustain public confidence in the European Convention when the council is seen to intervene in domestic politics and national security” in this way. The source warned it would play into the hands of Reform UK and the Conservatives, which have both advocated leaving the ECHR.
A second government figure said it was “supremely unhelpful” to those attempting to make the case that the ECHR could be reformed while remaining a signatory to the convention.
Robert Jenrick, the shadow justice secretary, said: “The ECHR, and the legal community around it, is digging its own grave. From net zero to gender, Strasbourg is now interfering with ever-more areas of national life, all beyond the original intent of the convention. I’ve been clear that we need to leave the ECHR to fix our borders, but this is now a far broader issue, about democracy and sovereignty.”
In two separate letters O’Flaherty took issue over transgender guidance resulting from the Supreme Court’s ruling in April on the definition of a woman in terms of the Equality Act, and also Britain’s decision to treat Palestine Action as a terrorist group.
Hundreds of Palestine Action supporters have been arrested for holding banners in support of the group since the ban was imposed in July.
O’Flaherty wrote to Mahmood: “Domestic legislation designed to counter ‘terrorism’ or ‘violent extremism’ must not impose any limitations on fundamental rights and freedoms, including the right to freedom of peaceful assembly, that are not strictly necessary for the protection of national security and the rights and freedoms of others.”
In a second letter to Sarah Owen, chair of the parliamentary women and equalities committee, and Lord Alton, chair of the joint committee on human rights, he claimed trans guidance introduced across different areas of society in the UK after the ruling in April by the Supreme Court — declaring that the definition of a woman must be based on biological sex — could exclude trans people from many areas of life.
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Mahmood’s allies said she considered the Supreme Court’s judgment to be “beyond reproach”. However, transgender rights campaigners believe it could be the first step in challenging the Equality and Human Rights Commission (EHRC) guidance, which is yet to be approved by Bridget Phillipson, the women and equalities minister.
O’Flaherty claimed there was a tendency to view the human rights of different groups as a zero-sum game, and doing so tended to discriminate against trans people.
He wrote: “It should be ensured that steps taken towards implementing the Supreme Court judgment avoid a situation where a person’s legal gender recognition is voided of practical meaning, to the extent that it leaves trans people in an unacceptable ‘intermediate zone’.”
He added: “It is also to be recalled that not all trans people wish to obtain legal gender recognition, and in reality simply live according to their gender identity. This does not in any way diminish their right to be treated with dignity, to be protected from discrimination, and to be able to participate in all areas of everyday life.”
O’Flaherty also expressed concern about the potential for organisations to require trans people to habitually “out” themselves publicly when accessing services or facilities.
His intervention is the clearest sign yet that the Strasbourg court may end up intervening in the trans rights debates in the UK — and could challenge new guidance produced by the Equality and Human Rights Commission on how to apply the judgment of the Supreme Court.
In response to the letter, the prime minister’s spokesman said: “The government has set out repeatedly that we support dignity and respect for everyone. We’re clear that there are laws in place to protect trans people from discrimination and harassment and proudly uphold a robust legislative framework.
“Trans people remain protected on the basis of gender reassignment, a protected characteristic written into the Equality Act. That was true before the ruling and the Supreme Court underlined that fact.”
Baroness Falkner of Margravine, the EHRC chair, said trans people were still protected from discrimination after the Supreme Court case.
She said the Equality Act allowed for single-sex spaces “where this is necessary and proportionate”, and that “by definition, this means that members of the opposite biological sex must be excluded”.
She added: “Our code will advise service providers on how they can do this sensitively and in accordance with the law, while ensuring that no one is left without any access to services such as public toilets.”
The Times revealed on Saturday that Phillipson had been accused of delaying the release of the guidance, which was submitted at the start of September, until after Labour’s deputy leadership contest over fears it would lose her votes. This was denied by Phillipson’s allies.
A spokesman for Stonewall, the LGBT charity, said it remained “concerned that unless the EHRC’s draft code is seriously revised, the starting point will be one of exclusion which could create legal risk for businesses across the UK”.
