Laws criminalising male homosexual activity stretch back to the Middle Ages. The infamous ‘Buggery Act’ was created during the reign of Henry VIII in the 1500s, outlawing anal sex between men in Britain and making it punishable by death. After 200 years, the death penalty was eventually abolished by way of the Offences Against the Person Act 1861, although the activity itself remained illegal with the penalty a minimum 10 years imprisonment. In 1885, the Criminal Law Amendment Act made all other male same-sex sexual acts a criminal offence carrying a two-year prison sentence.
Henceforth, throughout most of the 20th century, male same-sex sexual activity remained a criminal act and men could be prosecuted and sent to prison for offences including consensual sexual activity in private, kissing another man in a public place, or just chatting up another man in a public place, which was known as ‘importuning’. There was no criminalisation of female same-sex sexual activity, as the prevailing view was that no such thing existed.
The post WWII period however was one of renewed optimism in the UK, with a desire for greater personal freedoms heralding a more receptive climate for people seeking laws criminalising homosexuality to be repealed.
A watershed moment came in 1954 with uproar at a number of high-profile convictions that year, most notably the trial and eventual imprisonment of Edward Montagu (the 3rd Baron Montagu of Beaulieu), Michael Pitt-Rivers and Peter Wildeblood for committing acts of ‘homosexual indecency’. The Conservative government set up the Wolfenden Committee (WC) to investigate aspects of Britain’s sex laws including homosexuality and a report was published on 3 September 1957 recommending to Parliament ‘homosexual behaviour between consenting adults in private should no longer be a criminal offence’.
On 5 March 1958, the academic A.E. (Tony) Dyson wrote a letter to The Times, published on the 7th, calling for reform of the law by the implementation of the Wolfenden Committee's recommendations. The letter drew supporters of the Wolfenden Report together and prompted the founding in 1958 of the Homosexual Law Reform Society (HLRS) to campaign for the WC report recommendations to be implemented. Notably, the pamphlet ‘Homosexuals and the Law’ was sent to MPs in preparation for their first debate on the Wolfenden Report which was initiated on 4 December 1957 by Frank Pakenham (Baron Pakenham). However, the government of Harold McMillan did not act upon its recommendations, due to fears of a public backlash and on 29 June 1960, the House of Commons, by a majority of 114, voted against a motion endorsing the Wolfenden Committee's recommendation.
This did not deter activists and on 12 May 1960, over 1000 people attended the first HLRS public meeting in Caxton Hall in central London. In 1963, the HLRS expanded to become a nationwide campaign, forming the North-Western Homosexual Law Reform Committee (NWHLRC) in Manchester. The North-Western Committee was the most radical and proactive of the HLRS’ groups, targeting trade unions and industrial workplaces and raising awareness of the Wolfenden Report eventually becoming the Campaign for Homosexual Equality (CHE).
After almost ten years of campaigning change eventually came when a Labour Government assumed power in 1964. In the newly elected Parliament, Labour MP Leo Abse took up the issue and the Sexual Offences Bill was put before Parliament seeking to implement some of the Wolfenden Committee's recommendations. The Sexual Offences (No. 2) Bill ultimately passed in the House of Commons on 4 July by a vote of 99 to 14 (a majority of 85) and in the House of Lords on 13 July by a vote of 111 to 48 (a majority of 63). It received Royal Assent on 27 July, becoming the Sexual Offences Act 1967. The new Act stated that ‘a homosexual act in private shall not be an offence provided that the parties consent thereto and have attained the age of 21 years’.
The Act nevertheless had significant limitations – it only applied to men aged 21 years and above; sexual activity had to be in private; soliciting/procuring remained a criminal offence; and the new rule did not apply to Scotland or Northern Ireland or the Armed Forces. Further, the maximum penalty for any man over 21 committing acts of 'gross indecency' (which included masturbation and oral sex) with a 16- to 21-year-old was increased from two years to five years, and it was also a criminal offence to take a photograph of more than two people engaging in same sex activity.
Although the Act was an important advance, a clampdown on activity not protected by law ensued, with an uptick of convictions following a focus by the Government on ‘law and order’. While sex may have been legal, most of the things that might lead to it were still classified as 'procuring' and 'soliciting' (e.g. it remained unlawful for two consenting adult men to chat up each other in any non-private location). In 1966, the year before partial decriminalisation, some 420 men were convicted of gross indecency. By 1974, the annual number of convictions had soared by 300% to 1,711 in that year. Research also indicates an estimated 15,000 plus gay men were convicted in the decades that followed the 1967 Act.
The Act nevertheless gave a greater sense of confidence to campaigners as more freedom of assembly for gay rights groups was now possible. In March 1970 the HLRS became the Sex and Law Reform Society (SLRS) with their focus shifting to campaigning for legal changes, for example in 1974 they produced a report for the Criminal Law Review Committee on lowering the age of consent. The Campaign for Homosexual Equality also became very active. For example, they organised the first London Pride in 1971 to protest against the age of consent at 21; held the first Gay Rights conference and Rally at Hyde Park in 1973; met with the Home Office to express concern about ongoing arrests; and established a working party on law reform proposing to lower age of consent to 16.
The Scottish Minority Group (SMG) was founded in Glasgow in May 1969 to campaign for the decriminalisation of homosexuality in Scotland. In 1972 SMG hold the International Gay Rights Congress at Edinburgh University Student’s Union where 400 people attend. Eventually homosexual activities were legalised in Scotland on the same basis as the 1967 Act, by Section 80 of the Criminal Justice (Scotland) Act 1980 which came into force on 1 February 1981 including the age of consent lowered to age 18.
Sadly, this uptick in gay rights groups assembly/campaigning did not translate into substantial legal gains throughout the 1980’s and into the 1990’s. Indeed, a new Conservative government came into power in 1979 which was hostile to the gay rights movement, cementing this hostility by introducing section 28 of the Local Government Act in 1988 (clause 2a in Scotland). The notorious section 28 made it illegal to ‘promote’ homosexuality in schools, including ‘the acceptability of homosexuality as a pretended family relationship’.
One bright moment came when the age of consent of 21 for homosexual males set by the 1967 Act was reduced to 18 by the Criminal Justice and Public Order Act 1994 after an attempt to equalise the age of consent with that of the heterosexual age of consent of 16 introduced as an amendment by the then Conservative MP Edwina Currie narrowly failed. This law also extended the definition of rape to include male rape; until then the latter had been prosecuted as buggery.
Leading LGBT campaign group Stonewall was formed in 1989 to campaign for the repeal of section 28, bringing together political activists and others such as Ian McKellan, Lisa Power and Michael Cashman and going on to successfully campaign for and win a panoply of queer people’s rights including repeal of s28.
In 1997 when the New Labour government came to power the political landscape had shifted dramatically with the new Home Secretary Jack Straw signalling sympathy for advancing queer people’s rights. Stonewall saw an opportunity to influence policy development after New Labour were elected and sought to tackle remaining legal constraints by using a combination of test cases and political lobbying.
Stonewall’s first key campaign win was to remove the ban on the Armed Forces personnel. They provided legal representation to two officers in the European Court of Human Rights (ECHR) case Lustig-Prean and Beckett v United Kingdom (2000) 29 ECHR 548 where the ban was found to be illegal. In response the Labour Government immediately removed the ban on 25 January 2000 which meant being gay in the Armed Forces did not lead to a person losing their job.
Stonewall also supported the appellants in the Sutherland v UK ECHR 27 March 2001 case which contested the different age of consent between homosexual activities (18) and heterosexual activities (16). The ECHR found this to be discriminatory and that the age of consent for homosexual acts should be lowered. The Home Secretary Jack Straw struck a deal with Stonewall and settled the Sutherland case by introducing a free vote on the Criminal Justice Bill, and on 8 Jan 2001 the Sex Offences (Amendment) Act 2000 lowered age of consent to 16 in England, Wales and Scotland (17 years in Northern Ireland).
Following the ECHR cases in Sutherland and Perkins and R, the Sexual Offences Act 2003 was introduced. The Act overhauled the way sexual offences were dealt with by the police and courts, replacing provisions in the Sexual Offences Act 1956 as well as the 1967 Act, while keeping in place the non-criminalization of homosexuality and an equal age of consent. The offences of gross indecency and buggery, which were still formally in place were removed from statutory law. As a result of the 2003 Act, the vast majority of the 1967 Act has been repealed.
The turn of the 21st century heralded a fertile period of positive legislation being introduced, advancing queer people’s legal rights, with Stonewall taking a prominent campaign role: