Proposed pardons for Scottish gay and bisexual men to have ‘no practical effect’

James Chalmers

A legal academic has qualified the Scottish government’s announcement that it will legislate to pardon those convicted for same-sex sexual activity under offences that no longer exist, saying that the pardon will have “no practical effect”, but that the introduction of a “disregard” scheme would bring Scotland into line with England and Wales.

The disregard process will allow people to have these convictions removed from their criminal records, similar to the disregard process that was introduced in England and Wales in 2012.

The proposals for an automatic pardon closely mirror those which had been proposed for England and Wales by SNP MP John Nicolson in the House of Commons through his Sexual Offences (Pardons etc.) Bill.

The UK government has since confirmed its support for a different pardons process in England and Wales.

Justice Secretary Michael Matheson said: “We will introduce an automatic formal pardon for those convicted under these discriminatory laws so they know they are absolved fully.

“We want to address the injustice that people experienced simply because of their sexual orientation in circumstances that are now legal and this is one way of achieving this.

“Information on these convictions is held on Police Scotland records and we have engaged with Police Scotland to seek views on steps that could be taken to right these historic wrongs.

“I have instructed my officials, working in partnership with Police Scotland, to determine the practical steps required to establish a scheme to allow men convicted for actions that are now legal to seek to have those convictions disregarded. Where an offence is disregarded a person will be treated as not having been convicted of that offence and so it would not appear on, for example, disclosure checks.”

James Chalmers, regius professor of law at the University of Glasgow (pictured), told Scottish Legal News that the pardon will have “no practical effect”, although the introduction of the disregard scheme would bring Scotland into line with England and Wales.

Professor Chalmers said: “The press release suggests something very similar to John Nicolson’s bill. The phrase ‘automatic formal pardon’ is the interesting part, because it sounds much grander than it can really be.

“In practical terms it’s bound to have the same limitations – Holyrood can pass a statute saying that everyone convicted of something which wouldn’t be a crime today ‘is pardoned’, but there would be no way of knowing who that actually is. So the words ‘automatic’ and “formal’ don’t really add anything; they just make it sound better!”

He added: “So inevitably, further down the line, you are probably going to get someone (whether in Scotland or in England) who applies for a job/volunteering position that requires an enhanced criminal record check, that check reveals an old conviction for gay sex, and they will be embarrassed and shocked because they’d seen the news about all this and thought they had been pardoned.

“And in a sense that will be true, but the pardon has no practical effect – they’ll have to apply for a disregard to stop the conviction showing up in this way. But at least they will now be able to do that in Scotland, albeit several years after they could make that application in England and Wales.”