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Section 28’ Debate Bill 87 of 1999-2000

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Section 28’ Debate Bill 87 of 1999-2000 RESEARCH PAPER 00/47 The Local Government Bill 6 APRIL 2000 [HL]: the ‘Section 28’ debate Bill 87 of 1999-2000 Section 28 of the Local Government Act 1988 was introduced to prevent local authorities from promoting homosexuality. A clause in the Local Government Bill 1999- 2000 was intended to repeal this provision outright, but was defeated in the House of Lords and replaced by an amendment moved by Baroness Young. However, the Government has said that it intends to reintroduce a clause repealing Section 28 and instead provide for the promotion of marriage to be made compulsory in schools. The following Research Papers discuss other aspects of the Local Government Bill: RP 00/44 (local government leadership); RP 00/45 (electoral aspects); RP 00/46 (welfare services and social services functions). Arabella Thorp HOME AFFAIRS SECTION Gillian Allen SOCIAL POLICY SECTION HOUSE OF COMMONS LIBRARY Recent Library Research Papers include: 00/32 Human Rights in the EU: the Charter of Fundamental Rights 20.03.00 00/33 Russia: The Presidential Election and Future Prospects 23.03.00 00/34 The Euro-Zone: Year One 27.03.00 00/35 The Criminal Justice and Court Services Bill: Children and Family Court Advisory and Support Service, Disqualification from Working with Children, and Truancy [Bill 91 of 1999-2000] 24.03.00 00/36 The Criminal Justice and Court Services Bill: Probation, Community Sentences and Exclusion Orders [Bill 91 of 1999-2000] 27.03.00 00/37 The Criminal Justice and Court Services Bill: Drug Testing [Bill 91 of 1999-2000] 27.03.00 00/38 Direct taxes: rates & allowances 2000-01 29.03.00 00/39 The Learning and Skills Bill [HL] Bill 96 of 1999-2000 28.03.00 00/40 The Nuclear Safeguards Bill [H.L.] Bill 59 of 1999-2000 30.03.00 00/41 Economic Indicators 03.04.00 00/42 Advisers to Ministers 05.04.00 00/43 Census (Amendment) Bill [HL] Bill 100 of 1999-2000 05.04.00 00/44 The Local Government Bill [HL]: Leadership Etc Bill 87 of 1999-2000 06.04.00 00/45 The Local Government Bill [HL]: Electoral Aspects Bill 87 of 1999-2000 06.04.00 00/46 The Local Government Bill [HL]: welfare services and social services functions Bill 87 of 1999-2000 06.04.00 Research Papers are available as PDF files: • to members of the general public on the Parliamentary web site, URL: http://www.parliament.uk • within Parliament to users of the Parliamentary Intranet, URL: http://hcl1.hclibrary.parliament.uk Library Research Papers are compiled for the benefit of Members of Parliament and their personal staff. Authors are available to discuss the contents of these papers with Members and their staff but cannot advise members of the general public. Any comments on Research Papers should be sent to the Research Publications Officer, Room 407, 1 Derby Gate, London, SW1A 2DG or e-mailed to [email protected] ISSN 1368-8456 Summary of main points Section 28 of the Local Government Act 1988 inserted a new section 2A into the Local Government Act 1986. The provision is intended to prevent local authorities from promoting the acceptability of lesbian and gay relationships, and is part of civil, not criminal, law. A council as a whole would be the subject of any legal action rather than its individual employees, but as yet no local authority has been taken to court for a breach of the section. After setting out the terms of Section 28 and its history, this Paper gives an outline of the effects it has had. Technically it does not bind teachers in England and Wales as far as sex education is concerned, as this is now a matter for school governors rather than local education authorities. However, many teachers have felt that Section 28 has made it more difficult for them to meet the needs of lesbian, gay and bisexual pupils. The supporters of the provision consider it a necessary protection from proselytising, whereas human rights groups and homosexual organisations feel Section 28 to be unjustifiably discriminatory, and many health, welfare and education organisations see Section 28 as a hindrance to providing children with information and support. Neither side considers the wording to be entirely satisfactory. The Government’s commitments to repeal of Section 28 are described in the next section of the Paper, which goes on to discuss the debates on the Local Government Bill 1999-2000. This Bill included a clause intended to repeal Section 28 (clause 68). However, on 7 February 2000 the House of Lords voted by 210 votes to 165 to replace this with a clause leaving Section 28 in place but stating that it should not prevent the headteacher or governing body of a maintained school, or a teacher employed by a maintained school, from taking steps to prevent any form of bullying (clause 91). Following discussion with church leaders and organisations involved with sex education, the Government has stated that it will still seek to repeal Section 28 and instead provide for new statutory guidance on sex education in schools. It does not wish the repeal of Section 28 to be seen as a licence for schools to promote homosexuality. An amendment to the Learning and Skills Bill 1999-2000 was intended to impose a new duty on schools to follow statutory guidance on sex and relationships education; but this was defeated in its turn in the House of Lords on 23 March 2000. These matters are discussed in the next section of the Paper. Some of the sociological, human rights and religious arguments relating to homosexuality are then set out, before a final section which is devoted to Scotland. A great deal of publicity has surrounded the Scottish Executive’s plans to repeal Section 28. Annexes then set out the amendments to the Learning and Skills Bill; organisations that have made representations on Section 28; and examples of legislation designed to prohibit the promotion of homosexuality in other countries. CONTENTS I What is Section 28? 7 II Effects of Section 28 13 A. Legal proceedings 13 B. Schools 14 C. Homophobic bullying and attacks 16 D. Counselling, advice and health-care services 17 E. Arts and literature 18 III The Government’s commitments to reform 19 IV Sex Education (Gillian Allen) 24 A. Law 24 B. Guidance 24 C. New draft guidance 25 D. The Local Government Bill [HL] 26 E. The Learning and Skills Bill [HL] 27 V Some arguments relating to homosexuality 31 A. The promotion of homosexuality 31 B. Homosexuality and ‘family life’ 32 C. Human rights arguments 33 D. Religious views 35 VI Scotland 39 A. Scottish Executive proposals for reform 39 B. Sex education in Scotland 41 C. Scottish Parliament Debate 43 D. Representations on Section 28 in Scotland 44 E. The Ethical Standards in Public Life etc. (Scotland) Bill 45 Appendix 1: Lords Amendments to the Learning and Skills Bill [HL] 1999- 2000 48 Appendix 2: Organisations expressing a view on Section 28 51 Appendix 3: ‘Anti-promotion’ legislation in other countries 53 RESEARCH PAPER 00/47 I What is Section 28? Section 28 of the Local Government Act inserted a new section 2A into the Local Government Act 1986, which provides that: 2A - (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. (3) In any proceedings in connection with the application of this section a court shall draw such inferences as to the intention of the local authority as may reasonably be drawn from the evidence before it. (4) In subsection (1)(b) above “maintained school” means - (a) in England and Wales, a county school, voluntary school, nursery school or special school, within the meaning of the [Education Act 1996]; and (b) in Scotland, a public school, nursery school or special school, within the meaning of the Education (Scotland) Act 1980. The section has its roots in a Bill presented in 1986-87 by the Earl of Halsbury. The Bill was intended to prevent a local authority from giving financial or other assistance to any person for the purpose of publishing or promoting homosexuality as an acceptable family relationship, or for the purpose of teaching such acceptability in any maintained school.1 It was introduced at a time when it was alleged that some Labour local authorities were spending money on actively promoting homosexuality over heterosexuality. Dr Rhodes Boyson for the Government expressed sympathy for the aims of the Bill, but considered that it was unnecessary because there were already provisions to deal with what was being complained of, notably the Education (No 2) Act 1986 and the code of practice for local authority publicity to be drawn up under the Local Government Act 1986.2 The Bill was lost when Margaret Thatcher called a General Election in June 1987. The code of recommended practice on local authority publicity came into force on 15 August 1 The Local Government Act 1986 (Amendment) Bill 1987-88 2 HC Deb 8 May 1987 vol 115 c1006 7 RESEARCH PAPER 00/47 1988 and includes a provision that local authority publicity should not attack, nor appear to undermine, generally accepted moral standards.3 A clause prohibiting the promotion of homosexuality by local authorities was then introduced by David Wilshire in the Committee Stage of the Local Government Bill 1987-88 on 2 December 1987.4 He supported his introduction of the clause with a dossier of examples of the sort of activity it aimed to curtail, ranging from local authority advertisements for lesbian and gay officers, to extracts from the books Positive Images and Jenny lives with Eric and Martin.5 This now notorious picture book (depicting a day in the life of a young girl in Denmark who lived with her gay father and his partner) was intended as a resources guide for teaching about homosexuality.
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