Even at the huge price of £34.99 – which would be expensive even for a hardback – this is an indispensable book to anyone who wants to understand the current state of the law affecting gay men and lesbians. It is a sobering account of the many legal, social, and political inequalities we still have to contend with and overcome.
While nine authors – all authoritative, some of them familiar names – are listed on the title page, there is no indication as to which of them has written any particular chapter or section. This makes the first-person references to their experience and opinions frustratingly and unnecessarily anonymous!
After an introductory historical chapter setting the present-day scene, the following chapters deal successively with issues of discrimination, family matters (including parenthood and adoption), cohabitation and the rights of partners sharing a joint home, inheritance and succession, immigration, the criminal law relating to sexual offences, drugs and pornography, and possible strategies for the way forward to “Equality 2000”.
On the subject of equality, there could usefully have been more emphasis on the discrepancies in laws and practice respectively in England and Wales, Scotland, and Northern Ireland (there is no indication that the text only applies fully to England and Wales), and as they apply between gay men and lesbians. Otherwise, the book is almost unfailingly accurate and reliable. In fact, I only noticed two slight errors: the Homosexual Law Reform Society did not “become” the Campaign for Homosexual Equality (but turned itself into the Sexual Law Reform Society) [1.14]; and the ‘blasphemous’ Kirkup poem, ‘The Love that Dares to Speak its Name’, is not reprinted “in full” in Geoffrey Robertson QC’s book The Justice Game [7.187].
Although this is formally a legal textbook, the poisonous thread running all through it is homophobia. Until 1967, all male homosexual behaviour was treated as one of a number of serious offences: those of us who were attracted to other members of our own sex were, before the 1957 Wolfenden Report, almost universally regarded as degenerate perverts, or mentally sick, or both. Typical of the historic background is the amusing reminder [1.02] that anal sex was first criminalised – attracting the death penalty – by an Act of 1533 “against buggery, Welshmen, vagabonds and other misdemeanours”. (In view of recent events on Clapham Common, perhaps the less said about this the better...)
Virulent pockets of homophobia still exist, as evidenced by the prejudice, bigotry, and ignorance rife in the recent Lords’ debates on the age of consent; and, as this book eloquently attests, a comprehensive overhaul not only of statute and common law, but also of local byelaws and of much police and other official practice, is urgently called for. Whether New Labour will in fact deliver any such new deal remains to be seen. On some fronts, this government seems to be developing a track record of lipservice to progress rather than effective action. However, in all fairness, the authors might have noted that sexual orientation has been included in the definition of “equal opportunities” in Section L.2 of Schedule 5 of the Scotland Act 1998.
Overall, it is surprising and indeed encouraging that so much progress has been made since 1967 – not least by some senior judges as well as politicians – in recognising that homosexuality is a valid personal orientation deserving adequate social recognition and legal protection. Some of the recent judicial pronouncements cited in this book would have been unthinkable ten years ago. But, as one of the authors says [2.05], “if one accepts that, both intellectually and morally, all human beings have an equal right to respect and dignity, discriminatory treatment which fails to recognise their worth as individuals cannot be tolerated on any basis in civilised society.” Preferably, these matters should be tackled through domestic legislation – not left to individuals pursuing the expensive and hazardous route of reference to the European courts which, in any event, have produced some disappointing recent decisions. At present, British lesbians and gays still do not have the same degree of protection against discrimination as do women and non-white people.
One very important issue which I am glad the authors have pinpointed [4.12] is the legal presumption that all sexual relationships (heterosexual as well as homosexual) outside marriage are “immoral”, and so contrary to public policy. This has the effect of making contracts grounded upon such relationships illegal, and therefore unenforceable. This presumption needs to be overturned by statute. Such a change would render less vulnerable the position of same-sex cohabitants who, at present, have no recourse to family law-based remedies to guide the settlement of any disputes that arise in relation to their joint home when their relationship breaks down [4.47].
Another essential piece of advice which I know would have gladdened the hearts of my now dead friends Bernard Williams and Dudley Cave, co-founders of the Gay Bereavement Group, is that, so far as gay people are concerned, “the three most important things in getting one’s affairs in order are making a will, making a will and making a will” [5.63].
Chapter 7, on the criminal law, is one of the best in a generally excellent book. Many points which are ordinarily neglected, even by experienced gay rights campaigners, are highlighted and accurately detailed. What comes through very clearly is that the law concerning gay sex – and, indeed, sexual behaviour of all kinds – is still in an unholy mess. The complications of the statutory provisions and case law decisions concerning “privacy” beggar comprehension, while the scope for police misinterpretations of the law and misbehaviour in applying it remains uncomfortably wide. The observation that “unfortunately, the collective cynicism displayed by juries towards [gross indecency and public order prosecutions] was not shared by lay and stipendiary magistrates in the lower courts: from experience as a practitioner looking after a large number of gay male defendants in the 1980s, the author would put the acquittal rate in the Crown Court [i.e. with a jury] at about 80% whilst the corresponding rate in the magistrates’ court during the same period was about 20%” [7.04/7.05] is especially worrying in view of Home Secretary Jack Straw’s current intention to remove the right of jury trial from defendants in this type of case.
If space permitted, I could write much more about the merits of Advising Gay and Lesbian Clients. However, I must conclude by urging everyone who wishes to be well informed about these essential matters to buy, beg, borrow, or steal a copy and to peruse it from cover to cover.