20th anniversary of the equalization of the "age of consent" in the UK and the role of the ECHR

The 30th of November 2020 marks the 20th anniversary of the enactment of the Sexual Offences (Amendment) Act 2000. This was the Act of the UK Parliament that lowered the minimum age for "homosexual acts" in the UK to that set for (most) different-sex and female same-sex sexual acts.

I've summarised the legal history that led to the 2000 Act in a short piece for Openly (which can be heard as a short podcast).  

The legal journey towards an equal "age of consent" in the UK began in 1967, when the Sexual Offences Act 1967 partially decriminalised sexual acts in England and Wales between two consenting males in private of or over 21 years of age. 

It was the creation of an unequal age of consent in 1967 that provided the impetus, over the next four decades, to reform the criminal law further to ensure that it treated people the same regardless of sexual orientation. 

The change in the law in 2000 wasn't the end of this criminal law "equalization" process - it left in place criminal laws that treated people differently because of sexual orientation, which were subsequently removed - but it was a monumental and decisive change. 

The role of the Convention

Although several factors contributed to the passage of the 2000 Act (and provisions in the earlier Criminal Justice and Public Order Act 1994 that reduced the minimum age for male same-sex sexual acts to 18 across the UK) the role of the European Convention on Human Rights was pivotal.

It is often said that cases in the "European Court of Human Rights" were central to the equalization of the age of consent in the UK but, in fact, none of the cases linked to the legislative reform of the age of consent ever reached the Court prior to the reform happening. The key Convention cases that led to the 2000 Act (and the 1994 Act before it) all took place in the (now abolished) European Commission of Human Rights and, in many ways, it was the possibility or potential of an adverse judgment by the Court that propelled law reform. 

This is an important point, because it reminds us that UK governments actively and willingly attempted to comply with their obligations under the Convention without being "admonished" for failing to do so by the Court. This is how the Convention system should work, and how it works at its best.   

The legal history

Because the UK comprises three criminal law jurisdictions, the regulation of "homosexual acts" by the criminal law was never uniform. 

For example, one of the principal criminal law offences used to regulate male same-sex sexual acts, buggery, was in force for nearly five centuries and has a complex legislative history in England and Wales, and Northern Ireland, but was never in force in Scotland (for a history, see Parliamentary History). 

Moreover, an unequal age of consent existed in England and Wales - because of the 1967 Act - long before Northern Ireland and Scotland ended the complete criminalization of same-sex sexual acts between men. 

The role of the Convention in challenging criminal laws in the UK that discriminated on the grounds of sexual orientation was therefore piecemeal, comprising many applicants and many cases in Strasbourg to challenge different laws in the different jurisdictions. 

A full, in-depth, legal history is available in Part I of Going to Strasbourg which details the step-by-step process by which cases were brought under the Convention and the impact they had. 

Remembering the applicants

UK governments have generally made little or no effort to publicly memorialize LGBT individuals and our shared history. For example, the UK has no major public memorial to the collective suffering endured by LGBT people during centuries of persecution, that included state-sanctioned murder.

Whilst on anniversaries of major legal change it is absolutely right to remember all of those who took part in achieving it - parliamentarians, Prime Ministers, NGOs, allies in the civil sphere - it is, in my view, of the utmost importance to remember the actual individuals who took on the legal cases.

The Convention system requires individual victims to bring cases about violations of their human rights. Cases cannot be taken to Strasbourg in abstract; victims must come forward and take a case themselves. 

It is right, therefore, to remember the actual applicants who went to Strasbourg and brought the cases that all contributed to the eventual equalization of the age of consent. 

A great impetus of the Going to Strasbourg project was to provide a lasting memorial to these brave people, and to collect together some of their stories. Some of their voices can be heard in a podcast I made during the project, and oral histories of many applicants are contained in the book

For me, charting this legal history is not a dry academic project. On the contrary, understanding this legal history is essential to understanding the present and, vitally, strengthening and protecting our collective LGBT rights in the future. 

As we live through a worrying time, in which attacks are made on the existence and value of the Convention system, I think understanding our past reminds us of all that we have to protect in the future. As I wrote back in September, LGBT people in the UK should prepare to defend our human rights law. 

With this in mind, on this 20th anniversary of the Sexual Offences (Amendment) Act 2000, let's remember the Convention cases, and the very brave people who brought them, that challenged the unequal and discriminatory age of consent...

"Age of consent" cases brought under the Convention in Strasbourg

Case dates        Case name, and applicants

1975 - 1979     X. v UK (Peter Wells)

1976 - 1983     Dudgeon v UK (Jeffrey Dudgeon MBE)

1982 - 1984     R.D. v UK (Richard Desmond)

1993 - 1995     Wilde, Greenhalgh and Parry v UK 
                        (Ralph Wilde, Hugo Greenhalgh, and William Parry)

1994 - 2001     Sutherland v UK (Euan Sutherland) 

1996 - 2001     Morris v UK (Christopher Morris)

2000 - 2004     B.B. v UK (Anonymous)

2006 - 2009     Small v UK (Luke Small - case concerning Jersey)