Law as Injustice

Dr Andrew Gilbert, Senior Lecturer in Law, contributes to our JusticeWeek2021 series by arguing that advances in liberty are not irreversible and need defending.

Does justice simply mean that someone is dealt with as they deserve according to the law? What if law itself creates injustice? One way in which law might cause injustice is if it treats minority groups less favourably than the majority or fails to protect them against disadvantage they experience in society. Following a talk I gave with Dr Caroline Derry for LGBT History Month in February, this piece considers a well-known example of a law which sent a powerful message that the family lives of gay people were ‘pretended’ and not equal to heterosexual families: section 28 of the Local Government Act 1988 (LGA 1988).  

Over the last century or so, the law regulating homosexuality has tended to move, more or less, in the direction of increasing liberalisation. However, section 28 stands out as the first piece of legislation in 100 years to reverse the trend of giving greater rights and recognition to the lives of gay men and lesbians. It stated:

A local authority shall not—

(a) intentionally promote homosexuality or publish material with the intention of promoting homosexuality;                       

(b) promote the teaching in any maintained school of the acceptability of homosexuality as a pretended family relationship.

What Caused Section 28?

When the British Social Attitudes survey began in 1983, 50% of respondents agreed that ‘sexual relations between two adults of the same sex are always wrong’. That number peaked at 64% in 1987, which was the same year 74% of the surveyed population thought homosexuality was always/mostly wrong. The emergence of AIDS in the early 1980s was instrumental in reversing the growing acceptance of gay men and women in society and in causing in the popular mind an association between homosexuality and disease. Into the mix was added the Conservative Party’s rhetorical emphasis on ‘Victorian values’, especially around the heterosexual married family, and its concerns about so-called ‘loony left’ councils run by the Labour Party. This latter point provides part of the background to the LGA 1988, which was primarily aimed getting better value for money from local councils.

However, it was specifically the involvement of local councils in providing (sex) education, libraries and funding volunteer groups which proved the catalyst for a law against promoting homosexuality ‘as a pretended family relationship’. Supporters of section 28 opposed councils using taxpayers’ money to stock libraries with books–which they saw as promoting homosexuality and harming children–such as Jenny Lives with Eric and Martin, and funding gay community groups, although the extent to which this was actually happening was contested during the parliamentary debates.

The Bill in Parliament

The origins of section 28 lie in an unsuccessful attempt to introduce an almost identical provision in December 1986. The amendment was proposed by Tony Giffard, the 3rd Earl of Halsbury. Halsbury’s speech displays a profound antipathy towards gay people, and it is a measure of the progress which has since been made that it is almost impossible to imagine such words being uttered in parliament today:

‘I was referring to male homosexuals. I did not think then that lesbians were a problem. They do not molest little girls. They do not indulge in disgusting and unnatural practices like buggery. They are not wildly promiscuous and do not spread venereal disease. […]

‘…We emancipate homosexuals and they condemn heterosexism as chauvinist sexism, male oppression and so on. They will push us off the pavement if we give them a chance.’ (HL Deb 18 December 1986, col 310)

Halsbury’s amendment failed to become law due to the 1987 general election. In May 1987, days before parliament was dissolved, prime minister Margaret Thatcher stated her ‘great pity’ that the amendment did not become law and hoped that it would do so in the next session.

The idea returned in December 1987 when backbench Conservative MP, David Wilshire proposed the amendment in the committee stage of the Local Government Bill. Although the amendment was proposed by a backbencher, the government supported it. Wilshire claimed that ‘[t]he clause is not a criticism of homosexuals, an attack on private behaviour or a restraint on giving people help, for whatever reason, if they require it.’ (HC Deb 15 December 1987, col 1006) And another Conservative supporter, Jill Knight MP, added that ‘the whole thinking behind the Bill [is] the need to protect children.’ (col 995)

Opponents were content to accept that councils should not promote homosexuality (or indeed heterosexuality) and that it is important to protect children from inappropriate sexual content, but they thought the wording went too far:

‘I do not believe that homosexuals want their sexuality to be promoted any more than anyone else does. They would argue not for discrimination in their favour, but for equal treatment with everyone else.’ (Simon Hughes MP, HC Deb 15 December 1987, col 992)

Similarly, Labour’s Joan Ruddock MP identified what it meant for law to be just:

‘It is a question of fundamental civil liberties, which bears heavily upon us. I am sure that hon. Members do not need to be reminded that it is in the treatment of its minorities that the real test lies of any nation's commitment to freedom and human rights.’ (col 1004)

Supporters (like Conservative minister Michael Howard MP) argued that the provision was addressed to councils and would not affect individual gay people. Opponents, however, were concerned that the law would create an increasingly hostile public mood towards gays and lesbians. Despite demonstrations of 25,000 people across Manchester and London, protesters storming the studios of live BBC news and abseiling into the House of Lords chamber during a debate on the Bill, the LGA 1988 became law in May of that year.

The Legacy of Section 28

Section 28 was law for 15 years. It was eventually repealed in 2003, in spite of widespread Conservative opposition, including from David Cameron who apologised for his decision in 2009.

With hindsight it can be argued that the Conservatives scored a spectacular own goal with section 28 because, first, there was limited evidence that ‘promotion’ was going on on anything more than a small scale; second, it served as a very effective ‘recruiting sergeant’ for the gay cause and led directly to the founding of lobby group Stonewall in 1989; and third, it damaged the reputation of the Party.

It seems that no legal action was ever taken against a local authority for breach of section 28. Some think that made it a pointless piece of legislation. But that’s to misunderstand how law works. The success of a law is perhaps better demonstrated in what doesn’t happen because of it than what does, e.g. the law against murder is most successful if no one is ever murdered. The lack of legal action around section 28 meant that councils were promoting homosexuality but the law was not being enforced, or councils were not promoting homosexuality, or both. There is certainly evidence that councils were complying with the law, although there remained some ambiguity around what ‘promoting’ actually meant.

Section 28 reminds us that, after a century of growing acceptance, parliament responded to public opinion to pass a law which sent a clear message about how the state viewed the lives of gay people. This episode teaches that progress made in justice, equality and fairness is reversible: those who care about these values need to defend and advance them.