Nicola Sturgeon offers apology in Holyrood to thousands of men prosecuted for having sex under old laws

This article is more than 2 years old

This article is more than 2 years old

Thousands of gay men in Scotland prosecuted for having sex will be automatically pardoned in a new bill that will also allow many to get previous convictions removed from their records.

The bill will pardon men who were convicted under Scotland’s anti-gay legislation, which remained on the statute book until 1981, 14 years after homosexuality was decriminalised in England and Wales.

Nicola Sturgeon, Scotland’s first minister, published the bill at Holyrood on Tuesday and offered an unqualified apology to those stigmatised and humiliated by the prosecutions.

She said full equality for gay and bisexual men only came into law in Scotland as late as 2001, when the age of consent was finally lowered to 16, the same age as for heterosexuals, two years after the first elections to the devolved parliament.

“Within the lifetime of this parliament, this nation’s laws created suffering and perpetrated injustice,” Sturgeon told MSPs. “The legislation we have published today addresses this injustice.”

She added: “Until we live in a world where no young person faces hate, fear and prejudice simply because of their sexual orientation or gender identity, we still have work to do.” Holyrood and her government were “utterly committed” to full equality for lesbian, gay, bisexual, transgender and intersex people.

The exact number of men affected by the pardon is unclear but it is estimated between 50 and 100 men were prosecuted every year in Scotland during the century in which gay sex, specifically gross indecency, was a criminal offence.

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The new bill mirrors moves to allow men in England and Wales, where an estimated 50,000 men were prosecuted, including 15,000 who are still alive, to request a pardon. In Scotland, pardons will be automatic, including posthumously.

The draft legislation, called the historical sexual offences (pardons and disregards) (Scotland) bill, will also allow men to apply for criminal offences covered by the bill to be swept from their records, or disregarded, if they need to for employment reasons.

Stonewall UK, the gay rights campaign group, said UK ministers needed to follow the Scottish government’s lead by expanding the kinds of offences which men could get wiped off their records.

“The disregard scheme in England and Wales doesn’t cover all the offences it should, but we secured a commitment from the UK government to change this,” said Calum Macfarlane of Stonewall.

“We are now working with the Home Office to ensure that everyone who should have their crime disregarded can do so. And we will be working with the Scottish government to achieve the same result for people in Scotland.”

The number prosecuted in Scotland was proportionately lower than other parts of the UK because Scottish law needs independent corroboration of an offence, such as two witnesses. That made it harder to prosecute men meeting at home, but Scottish authorities used other offences and created bylaws to persecute gay men in public.

Derek Ogg QC, a defence lawyer and expert in gay rights law, said this included a common law offence of loitering created by Edinburgh’s local authority. It attracted small fines but was specifically used against gay men who were taken to court.

Ogg said the statutory criminalisation of gay sex legitimised discrimination in other areas of society, for example by landlords and employers. “It meant people stayed in the closet,” he said.

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The pardons and apologies announced by Sturgeon would help heal the damage that caused, Ogg added, and also lift the stigma some families still felt after the prosecution of a family member.

“When people apologise to you for doing something wrong to you it is rehabilitative,” he said. “You feel vindicated. You can feel you have got your pride back.”

Despite Scotland’s reputation today as one of the world’s most gay-friendly countries, the pace of reform was initially very slow. It took until 1994 for the age of consent for gay men to be reduced from 21 to 18, and until 2001 for full legal equality when the age of consent was lowered to 16.

Another historic common law offence used against gay men, of shameless indecency, was not struck out until 2003.

The Equality Network published an account by a 47-year-old man called James who was prosecuted in 1990, then aged 20, for kissing his partner after leaving a nightclub in Glasgow.

He now has to disclose his offence every time he seeks a job or promotion. “Times have changed, and why should what happened 27 years ago still haunt me, for what was only a public display of affection and love for my partner of the time?” he said.