The Scottish Government’s Historical Sexual Offences (Pardons and Disregards) (Scotland) Bill becomes law today.
The bill provides a pardon for people who were convicted of the historical discriminatory ‘homosexual offences’ between men, which are no longer crimes. It also provides a way for people with these convictions to have them removed from their criminal records (called a ‘disregard’) so that they do not appear on criminal record checks for jobs and volunteer posts.
The First Minister, Nicola Sturgeon, will make a statement of apology for these convictions in the Scottish Parliament this afternoon.
Welcoming the bill, Tim Hopkins, Director of the Equality Network, said: “The bill and the First Minister’s apology are a hugely important statement that the Scottish Government acknowledges and regrets the discrimination of the past, and that Scotland is now committed to LGBT+ equality. Of course nothing that is done now can repair the damage caused by past discrimination, but we welcome that the bill spells out that these convictions were wrong and discriminatory, and reinforces that, by granting an automatic pardon to all those convicted.”
Following consultation with LGBT+ organisations in Scotland, the bill avoids two significant flaws with the similar legislation in the rest of the UK.
Firstly, the Scottish bill provides an automatic pardon to all people who were convicted in Scotland under these discriminatory offences, posthumously for those who have died, and to those who are still living. In contrast, the legislation for the rest of the UK does not provide the pardon to living people unless they specifically apply for it, and as a result an estimated 98% of those living with these convictions in the rest of the UK have not received the pardon.
Secondly, the Scottish bill covers all the offences that were in the past used in this discriminatory way, including where men were convicted for “importuning” – simply for chatting up other men. The legislation in the rest of the UK does not currently cover those convictions.
Tim Hopkins, added: “It has taken the Scottish Government a little longer to develop the legislation here, but that means there has been time to consult, and to learn from the debate about the way this operates in the rest of the UK. As a result, we have a significantly better bill.”
The disregard system in the bill enables people who have received the pardon to have their criminal record altered, which is important for those who work or volunteer in posts that require a records check.
James is a 47-year-old man who works in the health and social care sector. In 1990, he was prosecuted for kissing his partner in the street, and fined £150.
He recalls: “In 1990 at the age of 20 after leaving a night club in Glasgow a bit on the merry side, I was kissing my partner in the street. We were both approached by the police and arrested and later charged with intent to commit a homosexual act in a public place. At the time I was not out as being gay to my parents and really just coming to terms with my sexuality, so I thought rather than face the humiliation of going to court the easiest thing to do was to plead guilty by letter, not really understanding the ongoing consequences. Most of my working life I have worked in health and social care and find for every job I apply for, or internal promotion, yet again I have to be interviewed regarding my conviction and relive what happened now 27 years ago. 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?”
The Equality Network estimates that the total number of these historical discriminatory convictions in Scotland runs into thousands, and that there are hundreds of men alive today with such convictions on their records.
Until 1981, all sexual activity between men was a criminal offence in Scotland. Legislation in 1980 (which came into effect in 1981) decriminalised sex between men over the age of 21 (the age of consent for sex between men and women, or between two women, was then 16). In 1994 the age of consent for sex between men was reduced from 21 to 18, but it was not until 2001 that the discrimination was removed, by equalising the age of consent at 16.
Prior to these changes, men were prosecuted for activity with another man that would have been legal then between a man and a woman, and that is legal today between two men. This included consensual sexual activity in private, and acts such as kissing or chatting up another man in a public place.
Sex between women was never criminalised in this way in Scotland, and the same rules applied to it as applied for sex between a man and a woman.
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