Letter to the Chairman from Nigel Warner,
Chairperson, ALEGRI
GIBRALTAR—CONTINUING
DISCRIMINATION IN
THE CRIMINAL
LAW AGAINST
GAY MEN
I am writing to request that you ask the Foreign
Secretary in the above hearing when the UK will fulfil its obligations
under international human rights law to ensure the repeal of criminal
laws that discriminate against gay men in Gibraltar.
— These laws discriminate with regard
to the male age of consent, the definition of "in private",
and in the terminology and structure of the criminal code. — It
is respectively 12 and 9 years since the equivalent age of consent
and "in private" legislation for the UK was found to
be in violation of the European Convention on Human Rights.
The attached background note gives more details.
The continued existence of these discriminatory
laws has been raised repeatedly with the UK government over the
years, in correspondence with the FCO, in Parliamentary Questions
in the House of Commons, by the Council of Europe Committee of
Ministers, and in the European Parliament.
We understand that the UK authorities have responded
by raising the matter with the Gibraltar government. Despite this
there has been no public commitment of any sort by the Gibraltar
authorities to repeal the legislation. It is clear that until
the UK exerts real pressure, the Gibraltar authorities will continue
to resist making necessary changes.
We would therefore be very grateful if you could
press the Foreign Secretary during the hearing as to when the
UK will finally take the actions needed to comply with its obligations
and bring about the repeal of the legislation in question.
9 April 2009
BRIEFING ON
CRIMINAL LAWS
WHICH DISCRIMINATE
AGAINST GAY
MEN IN
GIBRALTAR
HOW THE
LAW DISCRIMINATES
— Section 116 A (1) of the Gibraltar
Criminal Offences Act 1960, as amended in 1993, stipulates an
age of consent for sexual relationships between males of 18. This
compares with 16 for heterosexual relationships. — Section
116 A (2) of this Act includes discriminatory privacy provisions:
"An act which would otherwise be treated
for the purposes of this section as being done in private, shall
not be so treated if done—when more than two persons take
part or are present; or in a lavatory to which the public have
or are permitted to have access, whether on payment or otherwise"
— The whole basis for the treatment
of sexual relationships between men in the Gibraltar Criminal
Offences Act 1960 is discriminatory. Sexual acts between men are
treated prima facie as criminal (in Sections 115 and 116 of the
Act), and only permitted in the exceptional circumstances set
out in Section 116 A. In addition, the acts themselves are described
in negative and prejudicial terms.
THE UK'S
OBLIGATION UNDER
THE EUROPEAN
CONVENTION ON
HUMAN RIGHTS
Jurisdiction
The Government of the United Kingdom has declared
that the Convention applies in respect of Gibraltar.
Jurisprudence
In Sutherland v United Kingdom, adopted on
1 July 1997, the European Commission of Human Rights found that
the United Kingdom's discriminatory age of consent for gay men
violated Article 14, combined with Article 8 of the European Convention
on Human Rights. The substance of this ruling has subsequently
been confirmed by the Court in L and V v Austria and SL v Austria
(9 January 2003), and, specifically in respect of the United Kingdom,
in BB v United Kingdom (10 February 2004).
In ADT v UK (31 July 2000) the Court found
that the UK's law on privacy, which imposed discriminatory provisions
on gay men, violated Article 8 of the Convention.
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