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Lord Lester of Herne Hill: Nothing I say will assuage the noble Lord's fears. I am not attempting to address his fears but to explain what I understand the law to be and the implications for the amendment.
The European Court of Human Rights has similarly decided--no doubt it will increase the fears of the noble Lord, Lord Waddington--on 21st December 1999, in the case of Sagueiro da Silva v. Portugal, that a refusal by the Portuguese courts in divorce proceedings to grant custody of his child to the father rather than the mother, solely on the ground that the father was living in a homosexual relationship amounted to unjustifiable discrimination in the enjoyment of the father's right to respect for his family life. It found that the Portuguese Court of Appeal had broken Article 14 read with Article 8 of the convention. That decision, too, is inconsistent with one of the assumptions upon which Section 28 is based.
Section 28 forbids local authorities from allowing their teachers to describe homosexual relationships as capable of constituting real family relationships, whereas English courts, the highest court in the land, and the European Court have recognised that homosexual relationships, based on mutual love, affection and long-term commitment, like heterosexual relationships, are capable of being real family relationships.
Section 28 is a piece of clumsy state censorship and illiberal social engineering. It constitutes an unnecessary and disproportionate interference with the rights of teachers to communicate information and ideas to their pupils and of their pupils' rights and interests. Were a case to be brought after October, once the Human Rights Act is in force, complaining of the unnecessarily chilling effects of Section 28, in my view our courts would decide either that this limb of Section 28 cannot be read to be compatible with the right to free expression and other rights, or it would be interpreted so narrowly as to defeat the objective of the promoters of the amendment and of Section 28.
If I am right about that, even if the Chamber decided, in keeping with the arguments of the noble Baroness, to keep Section 28 on the statute book, it would be a pyrrhic victory because I think that the courts would come to the rescue using the convention strongly. But that is no reason to keep it on the statute book; it is one of the reasons for repealing it.
The other limb of Section 28 authorises interferences with free speech and discriminates against homosexuals with no objective or reasonable justification. It forbids local authorities from intentionally promoting homosexuality or publishing material with the intention of promoting homosexuality. It does not forbid them from intentionally promoting heterosexuality, as many noble Lords have said, nor from publishing material with the intention of promoting heterosexuality. It treats homosexuality as a serious social evil to be uniquely singled out, even though homosexual sexual activity between consenting adults is not unlawful, and even though homosexuals are as capable as heterosexuals of sharing their lives, of caring and love, of commitment and support, and even though a person's sexual orientation may be genetically determined.
Section 28 promotes a climate of intolerance among the public and a sense of shame and fear among homosexuals whose sexual preferences may be conditioned by their genetic inheritance as well as by their family and social environment.
It is legitimate to forbid the promotion by local authorities of any form of human sexuality, whether in the classroom or more generally. But I suggest that it is not the business of the state to promote any form of sexuality as distinct from providing educational guidance to young people--for example about the importance of marriage for family life and child rearing, parental responsibility, the virtues of a loving and caring relationship, the health risks of unprotected sexual activity, and so on. As many noble Lords have said, and as the Government have indicated, that guidance can be given in suitable statutory form, whether in the form of a code of practice or otherwise.
I believe that our courts would find that the prohibitions in Section 28 are not carefully tailored to the wholly legitimate aim of protecting children and young people from harmful and immoral influences. That aim can be met readily by less restrictive means which do not involve compelling local authorities to publish only the kind of literature of which the supporters of the amendment approve.
Lord Lester of Herne Hill: I would be happier if my children were heterosexual rather than homosexual because they would have an easier life. But I would not regard a homosexual child or grandchild as in any way morally inferior to a heterosexual child. That was well expressed by Peter Preston in his interesting article in the Guardian, he having identical twins, both girls, one gay and one not.
I was astonished and pleased to hear the right honourable Michael Portillo, MP, say on the "Today" programme last week that the issue is not about tolerance but equality. I agree with him, but I would add that it is not only about equality but also diversity and free speech.
The noble and learned Lord, Lord Howe of Aberavon--I think that he is in his place--reminded me of something said by a great American judge about the spirit of liberty. The judge said that the spirit of liberty is the spirit that is not too sure that it is right. The vice of Section 28 is that its promoters were absolutely sure that they were right and that everyone else had to follow their opinions. The present statutory prohibitions are based upon a religious or moral certainty that homosexuality is a major social evil to be combated by means of a ban imposed by primary legislation. That is the passionate and completely sincere belief of the supporters of the amendment. But it should not be allowed to stand as the statutory command as to what all local authorities must do, or refrain from doing, in conformity with those sincere
Lord Habgood: At this time of night, brevity is golden and your Lordships will notice that I have no sheaf of notes. We have sat through four-and-a-half hours of debate on homosexuality and I have become increasingly bemused by the fact that none of us knows why some people are homosexual and some are heterosexual. It is a great mystery. However, many speakers have assumed that there is a totally clear-cut distinction; that you are necessarily either homosexual or heterosexual, as though you were either left handed or right handed. That is a totally false analogy. Some people are ambidextrous, just as some are bisexual.
There is almost nothing in a human being which is either totally innate or totally culturally conditioned. We are an extraordinary mixture of some things which are given in our inheritance--no one knows whether there is a hereditary component in homosexuality and, although some people claim that there is, it is a disputed claim--the culture in which we are brought up and the personal history of each of us. Even our faces are not given by our genetic inheritance. To a limited extent, our faces are what we make them through our lives, which is a horrifying thought.
Given that flexibility, there is a strong case for saying that it is not just a question of nature which cannot be altered. Human beings are always altering nature; it is what being human is about. We need a culture in which people can discover themselves and can be helped towards discovering what most people through most of history have regarded as the most satisfying form of life; namely, marriage and having children. But that is not to say that one simply writes off some people who are at one end of the spectrum who know that they are homosexual, have known it for a long time and see no prospect of change.
In human up-bringing there is an important space in which people can be helped in one direction or another by their cultural environment, by what they are taught, by the people they mix with. We want a culture that is compassionate, which recognises real differences--and I am not being in the least anti-homosexual--which is supportive, which helps people through their difficulties as they are growing up but which is also clear about where the greatest happiness within the experience of human kind is to be found. Therefore, there is necessarily a bias in one direction without in any way denigrating those who cannot move in that direction as second-class citizens.
It is clear from the debate that we do not yet know how to frame legislation or even guidance which will encourage that kind of society. I therefore believe that the right thing to do is to vote tactically, which in practice will mean voting for the noble Baroness's