Background to section 28 and its repeal
According to the British Social Attitudes surveys from the 1980s, this period saw a change in public attitudes towards same-sex relationships. In 1983, 50% of those surveyed agreed that “sexual relations between two adults of the same sex” were “always wrong”. By 1987, the figure had risen to 64%.
In 1983, a storybook for children, written by Susanne Bosche, was published in English entitled Jenny lives with Eric and Martin. The author decided to write the book after becoming aware that many same-sex couples in Denmark had children and realising “that there was a need for a book for these children to identify with”. In 1986, the book was found in the library of the Inner London Education Authority. The then Education Secretary, Kenneth Baker, described the book as “propaganda”. The episode generated significant media interest.
In 1986 Lord Halsbury tabled a bill that would have prohibited “local authorities from promoting homosexuality”, although the 1987 general election disrupted the bill’s passage. In the same year, the then Prime Minister, Margaret Thatcher, stated in her speech to the Conservative Party Conference that children were being “cheated of a sound start in life” due to being “taught they have an inalienable right to be gay”.
The Local Government Bill
On 8 December 1987 during the Committee stage of the Local Government Bill, the then Conservative MP for Spelthorne, David Wilshere, proposed to amend the Bill with a similar provision to those included in Lord Halsbury’s earlier bill. The proposed new clause (New clause 14) would prohibit local authorities from “promoting homosexuality by teaching or by publishing material”. In speaking to the new clause, David Wilshire said:
The new clause is necessary because its activities singled out in it are occurring. Even a few months ago, when I first came to this place, I would not have believed that these things were happening, but they are happening, there is promotion of homosexuality and it is portrayed as a pretend family relationship. In my judgment, that appals the majority of the British public.
If these activities are carried on, they encourage more people to indulge in homosexuality. Indeed evidence can be produced to demonstrate that [Local Government Bill, Standing Committee A, 8 December 1987, c1202].
In responding for the Government to the proposed new clause, the then Minister for Local Government (Michael Howard MP) said:
The promotion of homosexuality, particularly in schools, by local authorities is an unacceptable development. In view of the worry that has been expressed about that development in the House, in another place, and in many representations made to us by the general public, the Government wish to support the progress of the proposal. Legislation should make clear that the promotion of homosexuality, particularly in schools, by local authorities is not permissible. [Local Government Bill, Standing Committee A, 8 December 1987A, c1208]
In speaking for the Labour Opposition, Dr Jack Cunningham said that he would support the new clause:
The Labour party does not believe that councils or schools should promote homosexuality and I hope that no one in the Committee has any doubt about that [Local Government Bill, Standing Committee A, 8 December 1987, c1211].
The clause was agreed with a Government amendment that clarified that the prohibition on promoting homosexuality by teaching or by material should not prevent “doing of anything for the purpose of treating or preventing the spread of disease”. The amendment was intended to ensure the proposed prohibition did not stop local authorities working to prevent the spread of AIDS.
The Local Government Act 1988 and the repeal of section 28
The clause agreed to in Public Bill Committee went on to become section 28 of the Local Government Act 1988. The material provisions of section 28 read:
Prohibition on promoting homosexuality by teaching or by publishing material.
- The following section shall be inserted after section 2 of the Local Government Act 1986 (prohibition of political publicity)—
“2A Prohibition on promoting homosexuality by teaching or by publishing material.
(1) 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.
(2) Nothing in subsection (1) above shall be taken to prohibit the doing of anything for the purpose of treating or preventing the spread of disease.
Section 28 was met with large protests by LGBT+ groups. For instance, on 23 May 1988 a group of lesbian activists disrupted a live news broadcast at the BBC and in a radio debate on the clause the actor Sir Ian McKellen came out as gay. He would subsequently co-found Stonewall as a lobbying group. Organisations such as the Arts Council also opposed the clause on the grounds of its potential usage as a method of censorship in the arts.
Section 28 would be repealed in Scotland through the Ethical Standards in Public Life etc. (Scotland) Act 2000, one of the first Acts of the newly formed Scottish Parliament. Section 28 did not apply to Northern Ireland. The UK government would follow three years later, repealing section 28 in England and Wales through the Local Government Act 2003.
David Cameron, the then leader of the Conservative Party, would apologise for the clause in July 2009.
Developments since the enactment of section 28
2000: Sexual Offences (Amendment) Act
In 1994 the then Conservative MP for South Derbyshire Edwina Currie, introduced an amendment that sought to lower the age of consent for homosexual acts, from 21 to 16 in line with that for heterosexual acts. This amendment was defeated and instead the gay male age of consent was lowered to 18.
In the same year Euan Sutherland, then 17 years old, had lodged a complaint against the UK in the European Court of Human Rights. Mr Sutherland’s complaint was:
…that the fixing of the minimum age for lawful homosexual activities between men at 18, rather than 16 as for women, violated his right to respect for private life under Article 8 of the Convention and was discriminatory in breach of that Article taken in conjunction with Article 14
The Government submitted to the European Court of Human Rights that it would bring forward legislation to equalise the age of consent.
Beginning in 1998, the House of Lords defeated the provision to change the age of consent to 16 on two occasions and the then Home Secretary Jack Straw used the Parliament Act to override the Lords before the measure was passed in November 2000.
On 30 November 2000, the Sexual Offences (Amendment) Act 2000 received Royal Assent. This reduced the age of consent for gay and bisexual men to 16 in England, Wales and Scotland, and 17 in Northern Ireland. In 2008, this would be set as 16 in Northern Ireland.
2004: Civil Partnership Act
On 30 June 2003, the Government published a consultation paper, ‘Civil Partnership – A framework for the legal recognition of same sex couples’, outlining its proposals for a civil partnership registration scheme in England and Wales. The Civil Partnership Bill was introduced to the House of Lords in March 2004. On introducing the Bill, Jacqui Smith, the then Deputy Minister for Women and Equalities, stated that it “opens the way to respect, recognition and justice for those who have been denied it for too long.” Prior to this Bill, there was no mechanism for formally recognising a same-sex relationship, and couples had no recourse to the rights available to opposite sex married couples.
The Act established a new legal relationship for same-sex couples. Couples who register as civil partners of each other can then access many of the legal rights and responsibilities to which married couples had previously solely been entitled. The Library’s 2004 paper The Civil Partnership Bill [HL]: background and debate, provides the following summary of the rights and responsibilities that became available to those in civil partnerships:
Same-sex couples who enter a civil partnership would access a wide range of rights and responsibilities in many areas including property and financial arrangements; social security; children; housing and tenancies; employment and pension benefits; recognition under intestacy rules; life assurance; access to fatal accidents compensation; protection from domestic violence; and tax treatment
The Act came into force on 5 December 2005 and the first civil partnership ceremony, between Matthew Roche and Christopher Cramp at St Barnabas Hospice, would take place on the same day.
2013: Marriage (Same Sex Couples) Act
In March 2012, the Government Equalities Office published a consultation on “Equal Civil Marriage” (PDF), which looked at how to enable same sex couples to marry. The consultation stated that no religious organisation would be obliged, or permitted, to conduct marriage ceremonies for same sex couples. The consultation received over 228,000 responses, together with 19 petitions. It was stated to be the largest response ever received for a Government consultation.
In December 2012, the Government published its response to the consultation (PDF). The response document confirmed the Government’s commitment to legislating for the introduction of civil marriage ceremonies for same-sex couples, stating: “We believe that by allowing same-sex couples to get married we are further strengthening the institution of marriage”. The response also outlined that the Government would enable religious organisations that wished to perform same-sex ceremonies to ‘opt-in’ to the provisions, with no obligation to do so. The possible legislation would also provide legal protections for organisations that did not opt-in. Moreover, the Government stated that the legislation would enable couples to convert their civil partnerships into civil marriages. Finally, the response described proposals that would enable individuals to change their gender legally while remaining married, if both parties wished to do so.
The Marriage (Same Sex Couples) Bill was introduced into the House of Commons on 24 January 2013. Broadly, the Bill aimed to amend pre-existing legislation so as to legislate for the points outlined in the Government’s consultation response.
It received Royal Assent on 17 July 2013. The Act’s marriage provisions extended to England and Wales. The first ceremonies took place in England and Wales on 29 March 2014. In Scotland the Marriage and Civil Partnership (Scotland) Bill introduced the same provisions and was passed in February 2014.
Legislation to prohibit conversion practices
The Government’s July 2018 LGBT Action Plan committed to “bringing forward proposals to end the practice of conversion therapy in the UK.” So-called conversion therapy is a type of practice that attempts to ‘cure’ an individual of being LGBT+.
On 29 October 2021 the Government published a consultation on banning conversion therapy. The consultation document stated:
The government will ban conversion therapy. There is no justification for these coercive and abhorrent practices and the evidence is clear that it does not work: it does not change a person from being LGBT and can cause long lasting damage to those who go through it.
[…]
It is the Government’s intention to deliver a ban as quickly as possible and we will be preparing a draft Bill for Spring 2022.
The consultation ran until 4 February 2022. A draft bill has not yet been published.
In a statement to the House of Commons on 17 January 2023, Michelle Donelan, then Secretary of State for Digital, Culture, Media and Sport, confirmed that the Government would introduce legislation to “ban conversion practices”. These proposals would be set out in a draft bill. The draft bill would seek to “protect everyone, including those targeted on the basis of their sexuality, or being transgender.” According to the Secretary of State, the draft bill would be published and undergo pre-legislative scrutiny by joint committee before the end of the parliamentary session:
This is a complex area, and pre-legislative scrutiny exists to help ensure that any Bill introduced to parliament does not cause unintended consequences. It will also ensure that the Bill benefits from stakeholder expertise and input from parliamentarians.
In response to a PQ on 6 March 2023, the Government confirmed this timeline. On 5 May 2023, the Government again indicated that it planned for a bill to “complete pre-legislative scrutiny in the current parliamentary session”.
A draft bill was not introduced in the last session of Parliament, which ended on 26 October 2023, and did not feature in the King’s Speech 2023, which outlines the Government’s legislative agenda for the parliamentary session ahead.
In a recent parliamentary question on the issue, the Minister for Equalities stated that the Government “are carefully considering this very complex issue” and that it would set out “further details on this in due course.” In response to an oral question from Ben Bradshaw MP on 16 November 2023, the Leader of the House, Penny Mordaunt MP, said:
The Secretary of State is still looking at the policy on this, and she is very aware that the House will want her decision brought forward. I know that she is taking great care to ensure that we can protect people who might be vulnerable to these kinds of barbaric practices.