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Watch out Commonwealth – the empire is striking back on LGBT rights

LGBT rights

Professor Philip Murphy, director of the Institute of Commonwealth Studies, welcomes a new generation of Commonwealth activists who are using established legal and constitutional tools to tackle its ‘imperial-era homophobic laws’.

I went to a rather unusual meeting about the Commonwealth on Monday 22 July. It was hosted in Parliament by shadow home secretary, Diane Abbott. There was a large and enthusiastic audience, the vast majority black, Asian and minority ethnic (BAME) and well under the age of 40. There were none of the familiar faces from the London Commonwealth circuit, and there was an urgency and sense of purpose about the gathering, which was genuinely inspiring.

This was the sort of ‘renewed’ Commonwealth that its true-believers dream about. But there were few references to the 53-member organisation and none to the Commonwealth Secretariat or its Dominica-born secretary-general, Patricia Scotland, despite the fact that much of the lively two-hour discussion focused on the Caribbean.

The key to all of this was the subject of the meeting: LGBT rights in the Commonwealth. The continued criminalisation of homosexuality in the majority of member states (35 out of 53) seriously undermines the organisation’s claim to be united by a commitment to human rights. And the Commonwealth has been notably resistant to global trends towards reform.

In 1964, homosexuality was outlawed in around 140 states across the world. The figure has now halved to 72. But half of that number are Commonwealth states (the other half largely consisting of non-member states that apply Islamic law). The blame for all of this can be traced back to Thomas Cromwell, Henry VIII’s shadowy enforcer, who introduced the Buggery Act in 1533 as a fiendish addition to the suite of measures used by his boss to crush the power of the monasteries.

But the main culprit was the British Empire, which as late as the Grenadian Criminal Code of 1958, was spreading homophobic legislation across the world. Cultural attitudes have also helped to keep these measures alive. Indeed, as Abbott noted, in some parts of the Commonwealth, there are signs of attempts to put back the clock. So this is very much a ‘Commonwealth problem’, and the UK bears a large element of historical blame.

The UK government certainly supports decriminalisation. For example, it has recently provided £12 million to fund a collaborative research project involving Dr Corinne Lennox of the Institute of Commonwealth Studies, exploring the economic benefits of policies combating the exclusion of LGBT citizens. Yet at last year’s meeting of Commonwealth Heads of Government in London, the Theresa May administration was accused of soft-peddling its stance on this issue, perhaps for fear of damaging post-Brexit trade opportunities in the Commonwealth and the Middle East.

The ever risk-averse Commonwealth Secretariat has proved even more reluctant to take a firm stand. The announcement earlier this year by the government of Brunei that it intended to make homosexuality punishable by death drew a public rebuke from Patricia Scotland. But short of threatening to stone LGBT citizens to death, it is unclear what Commonwealth countries have to do to provoke a strongly-worded statement from Marlborough House. Unless I misunderstood her, Abbott’s chief of staff promised at Monday’s meeting that a Labour government would seek to ensure that Commonwealth members who did not respect LGBT rights would be expelled from the organisation. To which my private response was ‘Good luck with that.’

Ultimately, however, the mood on Monday was one of optimism. The take-away message was this: ‘Progress doesn’t happen on its own. It needs activists to fight for it.’ And the panel members embodied this spirit. Among them was Jason Jones who challenged the anti-homosexuality laws of Trinidad and Tobago on constitutional grounds and won a landmark ruling in his favour last year in the High Court of Port of Spain.

If the Privy Council confirms the ruling, this could have major implications for seven other mostly Caribbean Commonwealth counties which still use this venerable institution as their final court of appeal.

Indeed, the implications of the ruling have already been felt further afield. Peter Laverack, a human rights lawyer who represented Jones, noted that in its judgement of September 2018 decriminalising homosexuality in the country, the Supreme Court of India cited the Trinidad and Tobago ruling.

Another aspect of the legal struggle for LGBT rights was described by Karen Doyle from the Movement for Justice. She outlined the background to an even more recent landmark judgement, by the High Court in London, which in June this year overturned the deportation to Uganda of a young asylum seeker and – in an unprecedented move – ordered her return. She had been arrested and removed under the Home Office’s ‘Fast Track’ system, despite arguing that as a lesbian her welfare would be under threat if she was sent to Uganda. We simply don’t know how many of the estimated 10,000 people removed under Fast Track were LGBT, and this may, as Doyle suggested, have the makings of another Windrush scandal. But this was undoubtedly a major victory.

So ‘history’ may be to blame. But history also provides potential tools of resistance. The meeting presented striking evidence of young, grass-roots activists utilising arcane, centuries-old Commonwealth legal institutions to challenge imperial-era homophobic laws. It also provided further proof of the obsolescence and irrelevance of the Commonwealth Secretariat.

Professor Philip Murphy (left) is director of the Institute of Commonwealth Studies (ICWS) and professor of British and Commonwealth History at the University of London. He has published extensively on the history of British decolonisation and, recently, on the Commonwealth-wide role of the British monarchy. Since 2007, he has been co-editor of the Journal of Imperial and Commonwealth History. His latest book, The Empire’s New Clothes: The Myth of the Commonwealth, which offers a personal perspective on this complex and poorly understood institution.

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