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Gay Times Law by Clive Sanders LLB

13 : Section 28 Local Government Act 1988 - ABOLISHED

Summary of Section 28 ABOLISHED

On 17th November 2003 Clause 28 was abolished in England and Wales. It had already been abolished in Scotland in 2002

The following information regarding Clause 28 is of historic interest only.

The Legislation

Section 28 used to state:

(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. or
(b) 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.

(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.

In summary a local authority were not allowed to intentionally promote homosexuality or promote the teaching in any maintained school. Crucially, Section 28 applied only to local authority funded activities. It did not not apply to schools, or to any head-teacher, governor, or member of school staff.

The question then arose as to what activities did the legislation prohibit? The crucial wording in the legislation was the word “promote” and it was never clear what promote actually meant. The ordinary dictionary meaning of the word is “to further, to advance, to encourage, to help forward, to publicise and sell or to initiate”

What activities might have fallen foul of clause 28? Probably if a local authority funded a campaign to persuade people that “being gay or lesbian” was better than “being heterosexual” or spent more money on services that were exclusive to lesbian gay & bisexual people than it did on services for heterosexual people then it could have fallen foul of Clause 28. In fact no proscecutions were ever brought whilst the legislation was in force.

Clause 28 as drafted would not have stopped a local authority stocking a range of materials about homosexuality, dealing with homosexual themes or written by homosexual authors unless they were setting out intentionally to promote homosexuality.

Throughout the time this law was in force it was inconceivable that any local authority would breach the legislation. The reality of Clause 28 was that it prohibited an activity which no local authority was likely to do anyway hence there were never any prosecutions.

The main effect of the clause seemed to have been more self-censorship. There was alot of misunderstanding of the law and many in education were less supportive of gay issues than they would otherwise have been wrongly believing somehow that they might be breaking the law. Local authorities may additionally have used clause 28 as an excuse to deny or withdraw funding for LGBT projects