The legal case against a ‘conversion therapy’ law

Numerous legal opinions have been produced which demonstrate the dangers of attempting to legislate on what activists call ‘conversion therapy’ (sometimes known as ‘conversion practices’).

Time and again, it has been shown that legislation of this sort could breach the European Convention on Human Rights by criminalising free speech, the ordinary work of churches, parental guidance and gender-critical beliefs.

Several legal opinions have shown the legislation to be unnecessary, since abusive behaviour (which is what Government ministers say they want to tackle) is already illegal. Proponents of a new law have come in for criticism by lawyers for failing to consider existing law.

Below is a table of these legal opinions, followed by a summary of each.

Table of legal opinions on ‘conversion therapy’ legislation

10 April 2021      Philip Havers KC

A legal opinion on ‘conversion therapy’, from leading KC Philip Havers, was reported in the press on 10 April 2021. In it, he warned the then Conservative Government that its proposals would criminalise Christians who tell a child questioning their gender that they should not ‘transition’.

The Telegraph said: “The legal opinion considers 11 hypothetical scenarios, including Christians encouraging a teenager struggling with gender dysphoria that they should accept their body as it is and a vicar preaching a sermon on the Bible’s position on same-sex marriage.

“Mr Havers concluded that any of the proposed definitions of conversion therapy ‘have the potential to criminalise at least some (and in several cases all) of these scenarios unless specific exemptions are applied for faith-based activity, including within family settings’.”

Click here to read a report about the legal opinion.

19 April 2021      Jason Coppel KC

Only days later, prominent human rights lawyer Jason Coppel KC produced the first of several independent legal opinions for The Christian Institute. In it he explained that a law that mirrored the definitions of ‘conversion therapy’ used by leading campaigners and other jurisdictions would fall foul of the UK’s human rights obligations.

A law of this nature could see the ordinary work of churches outlawed in many circumstances, including private prayer, evangelism, parenting, pastoral advice, preaching and teaching, church membership, baptism and confirmation, and communion.

As a result, it would contravene the European Convention on Human Rights on no fewer than four grounds, and therefore be challengeable in the courts.

Click here to read the legal opinion.

7 Dec 2022          Aidan O’Neill KC

The Christian Institute commissioned an independent legal opinion into Scottish proposals for a law on ‘conversion therapy’ in late 2022. Aidan O’Neill KC had previously led for the Institute when it successfully challenged the Scottish Government’s ‘named-person’ scheme.

Having been involved in the striking down of laws in Scotland previously, O’Neill was well-placed to warn that recommendations on ‘conversion therapy’ from the Government’s Expert Advisory Group went “beyond the powers of the Scottish Parliament to legislate”. He also explained that the Expert Group had been appointed without any formal process and had not considered the existing law in this area.

Click here to read the legal opinion.

29 Nov 2023       Jason Coppel KC

Mr Coppel delivered a second legal opinion to The Christian Institute in November 2023, on a Private Member’s Bill by Baroness Burt of Solihull. He explained that the Bill was “notably broad in scope”, and would “would, if enacted, interfere with a number of rights protected by the ECHR”.

He concluded: “Put shortly, the Bill criminalises expressions of personal conviction even if they are made without expressions of hatred or intolerance, or improper purpose or coercion, or abuse of power. Such an approach runs contrary to the consistent case law of the European Court of Human Rights (“ECtHR”).”

Click here to read the legal opinion.

2 Feb 2024           Aidan O’Neill KC

O’Neill’s second legal opinion for The Christian Institute considered the plans of the Scottish Government, set out in its consultation paper proposing a new law. O’Neill memorably summarised the draft Bill clauses as “jellyfish legislation. The concepts it uses are impossible to grasp; its limits are wholly undefined; [and] it contains a sting in the tail in the form of criminal sanction of up to 7 years and unlimited fines”.

He said that, if passed, the legislation would criminalise parents and have “a chilling effect on the ability and willingness of religious bodies - and separately, among others, gender critical feminist activist individuals or groups - to teach and preach and lobby and proselytise, on any matters relating to sexuality and/or gender, which conflicted with any of the official positions now adopted by the State.”

Click here to read the legal opinion.

26 Feb 2024        Jason Coppel KC

A third legal opinion from Jason Coppel KC looked at another Private Member’s Bill, this time from Lloyd Russell-Moyle MP (Labour). A number of potential scenarios were put to Mr Coppel and he agreed that in each case they would be captured by the Bill. This includes the ordinary work of churches and a gender critical campaigner publicly disagreeing with gender ideology.

“I consider that a criminal prohibition on the conduct summarised above would be highly likely to breach ECHR rights”, he confirmed.

Click here to read the legal opinion.

26 Feb 2024        Jason Coppel KC

Another four legal opinions were provided by Jason Coppel KC in succession, each assessing a different iteration of an amendment to the Criminal Justice Bill. The first version of this amendment by Alicia Kearns was titled New Clause 14 (NC14).

“The central prohibition which would be introduced by the Amendment would apply to acts which cause no injury or distress; and, indeed, to acts to which the person in question consents. It would apply across a wide range of social and religious settings.”

Click here to read the legal opinion.

17 Mar 2024       Sarah Vine KC

In a highly unusual move, Alicia Kearns MP tabled, withdrew and re-tabled new amendments on ‘conversion practices’ in quick succession. Sarah Vine KC of Doughty St Chambers produced a series of legal opinions for Labour Women’s Declaration. The first of these looked at the second version of Alicia Kearns MP’s amendment to the Government’s Criminal Justice Bill (NC30).

She concluded: “The legal effect of this proposed amendment (as it relates to Gender Identity) passing into law would be to occasion numerous infringements of Articles 6, 7, 8, 9 and 10. This fact would be almost certain to result in a declaration of incompatibility under s.4 of the Human Rights Act 1998.”

Click here to read the legal opinion.

20 Mar 2024       Sarah Vine KC

An addendum to Vine’s advice of 17 March 2024 was published three days later. It compared Kearns’ amendment NC30 to the previous Private Member’s Bill (PMB) from Lloyd Russell-Moyle.

She concluded that “neither the amendment, nor the PMB as currently drafted will be held by the senior courts to be compatible with the Human Rights Act 1998. There are several human rights challenges to each.”

Click here to read the legal opinion.

21 Mar 2024       Jason Coppel KC

NC30 was also considered in a legal opinion by Jason Coppel KC, for The Christian Institute.

“It is very difficult to see how the wide-ranging interference with fundamental rights contemplated by the Amendment could be justified.”

Click here to read the legal opinion.

10 April 2024      Jason Coppel KC

The next version of the amendment was NC37. Jason Coppel KC explained:

“I consider that the Amendment, if passed, would constitute a serious intrusion into the legitimate activities and practices of Christian churches and religious communities, which would be contrary to their rights protected by the ECHR, and so to the Human Rights Act 1998. It would also interfere with the legitimate expression of gender critical views, again in a manner which would be likely to breach ECHR rights.”

Click here to read the legal opinion.

8 May 2024         Sarah Vine KC

In response to Kearns changing and re-tabling amendment NC30 as NC58, Sarah Vine wrote another addendum to her legal opinion of 17 March 2024. It focuses on NC58’s use of the term “transgender identity”.

Those promoting the amendment had hoped this term would clarify the amorphous concept of ‘gender identity’ which had previously been in its place. Vine dashed that hope, explaining that “this alteration to the amendment does nothing to address the most significant legal and practical obstacles which I have set out in my earlier advice.”

Click here to read the legal opinion.

13 May 2024       Jason Coppel KC

The final version of the amendment was NC90. Shortly after its publication the General Election was called and the amendment was never debated. Jason Coppel wrote:

“The Amendment would, if enacted, interfere with a number of rights protected by the ECHR. It would (by way of example) restrict the ability of religious organisations to express their beliefs (both within their own communities and to the wider world) and the ability of gender-critical persons to express their beliefs”.

Click here to read the legal opinion.