Friday (22 October) marks 40 years since the European Court of Human Rights ruled that criminalising aspects of same-sex relationships in Northern Ireland breached the European Convention on Human Rights. This was in the case of Dudgeon v United Kingdom.

This Insight looks at the territorial and legal background to the case, as well as the effect of the judgment in the UK and Republic of Ireland.

UK law on same-sex relations

Jeffrey Dudgeon was a shipping clerk in Belfast and active in the Northern Ireland Gay Rights Association. In January 1976, the Royal Ulster Constabulary (RUC) searched Dudgeon’s house and seized documents which described homosexual activities. The RUC questioned Dudgeon at length about his sex life, but the Director of Public Prosecutions decided against proceedings.

At that time, the law regarding homosexuality in Northern Ireland was contained in the Offences against the Person Act 1861 (which made “buggery” an offence) and the Criminal Law Amendment Act 1885 (which made “gross indecency” between two men in public or private an offence). Sexual acts between women were never a criminal offence.

Both Acts were passed by the UK Parliament, which until 1922 included MPs from all of Ireland. Originally they applied to England and Wales, Ireland and, in the case of the 1885 Act, Scotland. In 1921, Ireland was partitioned and responsibility for criminal law was devolved to the Parliament of Northern Ireland. The Irish Free State (later the Republic of Ireland) gained independence from the UK in 1922.

The Sexual Offences Act 1956, (as amended by the Sexual Offences Act 1967), changed the law on homosexuality in England and Wales. Significantly, the 1967 Act meant that “buggery” and “acts of gross indecency” in private between consenting men should no longer be criminal offences. The Parliament of Northern Ireland did not pass a comparable measure and the 1967 Act did not apply in Scotland.

The offence of “gross indecency” from the 1885 Act was included when Parliament passed the Sexual Offences (Scotland) Act 1976. However, the policy of successive Lord Advocates was not to prosecute in this respect. A few years later, an amendment to the Criminal Justice (Scotland) Act 1980 brought Scottish law into line with that of England and Wales.

Following the abolition of the Parliament of Northern Ireland in 1973, legislation in devolved areas generally took the form of Orders in Council laid before the UK Parliament. In July 1976 the Secretary of State for Northern Ireland announced his intention to change Northern Ireland law on homosexuality. A report from the Standing Advisory Commission on Human Rights supported reform.

In July 1978, the UK Government published a draft Homosexual Offences (Northern Ireland) Order 1978. This would have brought Northern Ireland law into line with that in England and Wales. A consultation showed a substantial division of opinion in Northern Ireland, with most respondents opposed to the Order. A petition to “Save Ulster from Sodomy” organised by Ian Paisley’s Democratic Unionist Party collected nearly 70,000 signatures. None of Northern Ireland’s 12 MPs – nationalist and unionist – publicly supported the draft Order.

On 2 July 1979, a new Northern Ireland Secretary announced in a written answer that the proposed reform was to be dropped.

Dudgeon v United Kingdom

Jeffrey Dudgeon lodged an application with the European Commission of Human Rights on 22 May 1976. This argued that Northern Ireland criminal law constituted an “unjustified interference with his right to respect for his private life” and therefore breached Article 8 of the European Convention on Human Rights (PDF, 1,316 KB).
In 1980 the Commission unanimously concluded there was a breach. The case then passed to the European Court of Human Rights (ECtHR). The UK Government’s submission was made by Brian Kerr, later a Justice of the UK Supreme Court, and Nicolas Bratza, later President of the ECtHR.

They argued that the criminal law in Northern Ireland was justified by strong religious feelings in that part of the UK, which under “Direct Rule” it was required to take into account when legislating. It was contended (under paragraph 2 of Article 8) that there was no breach as these laws were “necessary in a democratic society” for the “protection of health or morals”.

While the Court accepted some of the UK’s arguments, it concluded that the resulting interference with Dudgeon’s private life was a disproportionate way of addressing the “pressing social need” claimed for the criminal law in Northern Ireland.  By a majority of 15 to 4, the Court concluded that: “Mr. Dudgeon has suffered and continues to suffer an unjustified interference with his right to respect for his private life.”

Significance of Dudgeon v United Kingdom

In response to the judgment, Patricia Hewitt, then general secretary of the National Council for Civil Liberties (now known as Liberty) and later a Labour MP, urged the UK Government to initiate a change to the law in Northern Ireland.

In a written answer on 24 February 1982, the Secretary of State for Northern Ireland said the UK Government would abide by the Court’s decision. A new draft Order was laid on 14 July and debated on 25 October 1982. As in 1978, all Northern Irish MPs were opposed.

The Homosexual Offences (Northern Ireland) Order 1982 brought the law in Northern Ireland into line with that in England, Wales and Scotland. It fixed the homosexual age of consent at 21, which was the same as that in Great Britain at that time, but higher than that for heterosexuals (16 in Great Britain and 17 in Northern Ireland).

In the Republic of Ireland, section 11 of the Criminal Law Amendment Act 1885 remained in force. With Dudgeon v UK serving as a precedent, in the case of Norris v Ireland, the ECtHR ruled that Irish law also breached Article 8. This led to the decriminalisation of homosexuality in 1993.

About the author: David Torrance is a researcher at the House of Commons Library, specialising in devolution and Northern Ireland.

Image: European Court of Human Rights (Strasbourg) under the Creative Commons Attribution-ShareAlike 3.0 License.

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