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Information for Social Change

Information for Social Change

"an activist organisation that examines issues of censorship, freedom and ethics amongst library and information workers..."
 

ISC 12. Clause 28

What exactly is Clause 28?

Section 28 of the Local Government Act 1988 states that:

A local authority shall not

a) intentionally promote homosexuality or publish material with the intention of promoting homosexuality;

b) promote the teaching in any maintained school the acceptability of homosexuality as a pretended family relationship;

Nothing in subsection (1) above shall be taken to prohibit the doing of anything for the purpose of treating or preventing the spread of disease.

In any proceedings in connection with the application of this section a court shall draw such inferences as to the intention of the local authority as may reasonably be drawn from the evidence before it.

Section 7 of the Public Libraries and Museums Act 1964 states that:

It shall be the duty of every library authority to provide a comprehensive library service for all persons desiring to make use thereof

It should be noted that if there is no intention to promote homosexuality, then there can be no breach of Section 28(1)(a). This does not mean, however, that the requirements of the Section can be evaded simply by citing some other primary purpose. For example, a novel depicting homosexuality in a favourable light might have been stocked purely on the grounds of its literary merit, but this will not prevent it from falling under the remit of Section 28. It is probably enough that policy and decision-makers are aware of the likelihood that homosexuality will be promoted. Further, it may be the case that Section 28 can be breached on the grounds that those in authority ought to have been aware that homosexuality would be promoted, even if they were not.

On the other hand, it is obviously not reasonable to expect that library workers will scour their collections for passages tending to promote homosexuality, so ignorance of a book's contents can prevent there having been a breach of Section 28. Likewise, poor judgement in recognising the promotion of homosexuality may provide a defence. Such issues are to be judged on the facts, and this is made clear by sub-section 3 of the Section.

In spite of the wording of sub-section 2 of the Section, it would probably not be acceptable to use the promotion of health issues as a cover for promoting homosexuality. Any information which would normally fall within the remit of Section 28 could probably only be justified if it is useful to the functioning of a health initiative. It would be necessary to acknowledge the existence of homosexuality in order to conduct an effective sexual health campaign, and it may be useful to liaise with gay interest groups, but organisers should be wary of straying into areas that are not very strictly connected to the spread of disease, since they would probably not be protected by the sub-section. In Newcastle upon Tyne, there have been recent criticisms of a health promotion organisation which is funded by local councils and health authorities on the grounds that homosexuality is thought to be being promoted using public money. It should be noted that the likely object of any legal action being brought against a Local Authority in respect of a public library would be the removal of the offending material, and that, provided the material is judged to breach Section 28, this will probably be achieved regardless of whether there is any liability on the part of the Local Authority or its employees.

Perhaps the thorniest issue in interpreting Section 28 is that of how promotion is to be construed. It might be said that a relatively innocuous statement such as "homosexuals are human beings" would be an infringement of the Section. Another view might be that the Section is not infringed unless there is encouragement to the public to become homosexual. The difficult issue of what exactly is meant by promotion would be a matter for the courts, which can consider the purpose of legislation and ministerial statements made in Parliament.

Since it is widely thought that no legal action has ever been brought under Section 28, the above is largely academic. It is perhaps more pertinent to consider how the Section has been perceived in public libraries, and what effect it has actually had on library services.

Anne Ramsden
May 2000

 

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