THE STATE’S LEGAL team that defended Ireland’s criminal ban on sexual relationships between men in the 1980s wanted to use the HIV/AIDS crisis to argue its case in Europe.
Decades-old files newly released by the Department of Justice to the National Archives show the lengths the State went to in order to try to preserve legislation that criminalised homosexuality.
Ireland was brought to the European Commission of Human Rights and later the European Court of Human Rights by now-Senator David Norris, who argued that the ban violated the European Convention on Human Rights.
Norris’ case came in the wake of a ruling by the European Court in a case arising from Belfast, known as the Dudgeon Case, that found a similar law in Northern Ireland violated the Convention.
Letters, memos and other documents held by the Department of Justice from the years during Norris’ case show that the State believed it had almost no hope of successfully defending the case, but that it still put significant work into preparing its legal arguments.
In 1983, it initially discounted the idea of arguing that a ban on homosexuality was necessary on health grounds, deciding that there was no evidence on which it could build that argument.
However, the matter was raised again two years later in 1985, when at least two members of the State’s legal team were in favour of using the HIV/AIDS crisis to try to defend the ban.
Acting on their advice, then-Minister for Foreign Affairs Peter Barry brought a memo to a Cabinet meeting asking the Government to authorise the legal team to raise AIDS in its defence.
Attorney General John Rogers, Chief Medical Officer Dr Brendan O’Donnell, and the Departments of Health and Justice took positions against the proposal, which was ultimately dropped once again.
Ireland’s first case of AIDS, the disease caused by untreated HIV, was diagnosed in 1982. Since then, campaigners have sought to dispel taboos about HIV and AIDS, citing evidence that stigmatisation can hinder efforts to prevent transmission.
Around July 1985, a legal advisor in the Department of Foreign Affairs believed that the State could use the emergence of AIDS to “delay” a finding in the Norris case by “saying that even though the precise nature of the medical situation is not known at present, the implications are so serious that a change in our legislation could not be contemplated until the situation is clarified”.
A letter from the same legal advisor on 27 September 1985, marked as urgent, said: “I am directed by the Minister for Foreign Affairs to refer to the case taken by Mr David Norris under the European Convention on Human Rights and to enclose herewith a Memorandum for the Government seeking authority to raise the health risks as a justification for Irish law on homosexuality.”
Another lawyer for the State had prepared a report, dated 25 September 1985, that urged the government to argue that the emergence of AIDS should permit Ireland to keep its ban on gay relationships.
In his report, the lawyer described holding meetings with several doctors working in hospitals in London, who gave “various views on the appropriateness of raising AIDS” to defend the legislation – one of the doctors strongly supported it, another was less inclined toward the idea, and a final doctor fell somewhere in the middle.
The lawyer said: “In my view [...] to require a country to change its law and to relax criminal sanctions on homosexuality would most probably have the result of increasing the level of such activity in the society concerned.
In the light of the present knowledge of AIDS, that is a risk which no State should be forced to take.”
His official advice was: “I am of the opinion that the issue of AIDS should be raised squarely in the pleading to be filed on behalf of Ireland. It is a matter of policy as to the manner in which the disease is raised.”
On 31 July 1985, a meeting was held in the Office of the Attorney General attended by an official from the Office; the two aforementioned members of Ireland’s defence team; and a medical inspector from the Department of Health, as well as another civil servant who took a record of the meeting.
The record of the meeting noted that it “consisted almost exclusively” of a “long sequence of questions” posed to the medical inspector “very much in the manner of counsel examining a witness in court”. The inspector “became nettled by this approach” and the exchanges “became quite heated”. The record noted that the approach to the questions “may or may not have been justified in the circumstances”.
The lawyer, who would go on to write the aforementioned report, “indicated that he thought Ireland’s case would have to be based very largely, if not exclusively, on the ‘disease’ aspect and in particular the significance of AIDS”.
The meeting record stated that “it appears that the purpose of the questions addressed [...] was to see if material could be obtained to back up a case that the State would not be justified in proposing the repeal of the statutory provisions in question, at this juncture, in view of the consequent danger to public health”.
However, the medical inspector was “adamant that this view could not be upheld”.
Given that the “best hope of combatting” AIDS was understood to be encouraging people most at risk to come forward to be advised on how to avoid the disease, the inspector was “emphatic that all leading international experts would be of the view” that “making homosexual acts serious offences would work strongly against this policy”.
The lawyer “sought to elicit” from the medical inspector the “name of a medical man of international standing who would give evidence” in line with the legal argument he wanted to make.
The medical inspector was “clearly annoyed by this question and reiterated the view (which coincides with his own personal view) that no reputable medical man specialising in this field would give such an opinion”.
The Minister for Foreign Affairs at the time was Fine Gael’s Peter Barry, who was also deputy leader of the party.
He brought a memo to a Cabinet meeting in October 1982 outlining the reasons that had been identified for and against raising AIDS in Ireland’s defence, requesting authority from Government to use it.
“From the perspective of foreign relations there is much to be said for refraining from raising the AIDS point at all,” Barry said.
“On the other hand, the advice available to the Government from Counsel is that the AIDS argument should be used if it is a factor in the Government’s thinking on the desirability of retaining our present laws,” he said.
“On that assumption, authority is sought to raise the issue in the defence,” the minister wrote, adding that it would not be raised without “express Governmental authority”.
Opinions were sought from the Department of Health and the Chief Medical Officer, the Department of Justice, and the Office of the Attorney General on whether the State should try to use AIDS to build its defence.
The Department of Health’s opinion was that it would be “most unwise”.
The Chief Medical Officer had written a short report on the matter as early as at least May 1985 in which he set out the facts as they were known and warned against using AIDS in Ireland’s legal defence.
He said it would be difficult to find any “reputable expert” who would see Ireland’s criminalisation of homosexuality as being in the interest of public health.
“Although the majority of the reported cases of A.I.D.S. have been in homosexuals (70%+) it is arguable that blood borne spread of the virus carries the most serious threat to the public health through blood transfusion. It is also relevant to point out that 18% – 20% of cases occur in Intravenous Drug Abusers. There has also been considerable spread of the virus through heterosexual activity,” the chief medical officer wrote.
“The disease has a 2-year 70% – 80% mortality rate. The best hope of its control rests with developing an effective vaccine. This is a difficult and complicated procedure and no vaccine can be expected in under 5 – 10 years,” he said.
“In the interim the developed countries are depending on valid reporting of cases, health education and counselling of groups at risk such as the ‘Gay Community’ and Drug Addicts. It is arguable that our laws relevant to homosexuality are a constraint on both of these measures. Certainly reputable medical experts working in the control of this disease would take this view.
“I would find difficulty in identifying a reputable expert at international level who would see our present laws on homosexuality as working in the interest of the Public Health. Indeed any attempt to make a case for our present laws based on this premise could I believe have a rebound effect.”
From a legal standpoint, Attorney General John Rogers stated he did not believe Ireland should try to use AIDS to defend the laws.
In a formal opinion issued on 8 October 1985, Rogers said he was “of the opinion that AIDS should not be pleaded as defence”, offering four reasons.
Then-Minister for Justice Michael Noonan told the Cabinet meeting that he would “have no objection to AIDS being dropped as an element in Ireland’s defence subject to advice from his Department in the light of medical opinion obtained from the Department of Health”.
Government ministers ultimately decided not to give the legal team authorisation to use AIDS as a defence.
Norris won his case before the European Court of Human Rights and Ireland passed legislation that decriminalised homosexuality on 24 June 1993.
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