Thursday, July 27, 2017

#50YearsLegal (except for readers in Scotland)

As you probably know, today is the 50th anniversary of the decriminalisation of homosexual sex between men in England and Wales.  It was part of a sweeping range of 'permissive' reforms introduced during the Labour government of 1964-70, which also included the relaxation of divorce law, the legalisation of abortion, and the abolition of the death penalty (except for treason).  The changes were so swift and transformative that it's hard to understand why Harold Wilson isn't remembered as one of the Prime Ministers who 'changed the weather', in the same way that Clement Attlee and Margaret Thatcher are.  Probably the answer would be that the reforms were generally 'matters of conscience' that the government didn't directly take the lead on, but nevertheless it's hard to dispute that most of them wouldn't have happened, or at least not so quickly, if Wilson hadn't led Labour to overall majorities in 1964 and 1966.

In Scotland, of course, homosexual sex between men remained illegal until 1980.  It's not uncommon for southern commentators to use that delay as evidence of Scotland being a more backward country than the rest of the UK.  To which there is a very obvious and indisputable reply - Scotland did not have self-government until July 1999.  The decision was taken for us by an English-dominated parliament in London.  Yes, the point can be made that Westminster imagined it was taking into account different societal attitudes in Scotland, and perhaps a different mindset among the Scottish legal establishment.  But the fact remains that if Scotland had been in possession of its own elected parliament and government in the 1960s, our representatives might well have decided not to be a slave to prejudice but instead to lead public opinion, just as decades later Wendy Alexander took a lead on the repeal of Section 28, and Jack McConnell took a lead on a smoking ban in public places.

Scotland can't be held responsible for something over which it had no power.  All that can be accurately said is that "the British Parliament, for whatever reason, decided to keep homosexual sex illegal in Scotland for more than a decade after it had been decriminalised in England and Wales".


  1. That's an excellent point, one I'd never even thought of.

  2. I understood at the time that it was because law reforms often needed separate Scottish bills, as Scots law was different, and Westminster often couldn't be bothered making time for Scottish law reforms. It wasn't necessarily anything to do with their view of Scottish social attitudes. The "justification" in this particular case, that I heard as a law student, was that private prosecution was difficult in Scotland and needed the Lord Advocate's consent, and if he chose not to prosecute then homosexual sex would not in practice be punished, as if the stigma of theoretical illegality made no difference.

  3. I think Robert Moffat is getting close to the truth of why 'legalisation' was later in Scotland compared to England and Wales.

    Legislation relating to Scotland had limited time at Westminster and to pilot a specifically Scottish Bill through Parliament was a relatively rare occurrence. Frequently, amendments to Scottish legislation were often tacked on as additional clauses to usually unrelated Bills relating to England and Wales or to the UK as a whole. So, systematic change of the law of Scotland was seldom considered; it was a piecemeal business, because the majority of MPs represent English constituencies.

    Dealing with Scottish legislation was often squeezed in at odd times, often when there were few MPs in the chamber, even though MPs for Scottish constituencies would make an effort to attend. Nevertheless, with such minimal support often personal prejudices or preferences were the deciding factor.

    There was also a pragmatic factor at play. Scots Law requires corroboration of criminal acts and in respect of consensual homosexual acts in private, corroboration was rarely possible. So Procurators Fiscal and the police tended to ignore 'private' homosexual behaviour. Public acts, often in public conveniences or in parks, were prosecuted and frequently were reported salaciously, especially if some 'celebrity' were involved. So, there was a pragmatic 'tolerance' in Scotland: given the paucity of parliamentary time, a blind eye was turned.

    It would, of course, have been better for homosexual activity to be decriminalised and accepted. But, public attitudes, even in England and Wales after decriminalisation, were still pretty hostile. As a young, heterosexual man in that period I followed the attitudes of parents, neighbours, friends, the media and adopted, unthinkingly - because of never having knowingly met someone who was gay - the homophobia of the times.

    However, in the period up to the turn of the century, there was increased public 'tolerance' and gay people were more ready to 'come out'. I and other heterosexual people became acquainted with gay people, liked them, respected them, no longer feared we would be 'buggered'.

    Nevertheless some pretty hostile attitudes remained and even when the Scottish Parliament was established and able to address specifically Scottish issues systematically, when Wendy Alexander initiated the repeal of Clause 1B, there was a substantial vomiting of homophobic bile led by Cardinal Winning and Mr Brian Soutar of Stagecoach. However, to Parliament's credit, it stood firm and gay people and other minority groups can participate to the same extent as everyone else in public life.
    Some Unionists, most reprehensibly the pompous and patronising Ms Harriet Harman, asserted that because laws in Scotland were not liberalised until 16 years after England and Wales that we as a people were reactionary. She and people like Yvette Cooper used this lie to seek to deny the powers relating to termination of pregnancies being devolved to Holyrood.

    1. Was scrapping clause 2a in the labour manifesto and why did they waste so much time and money on ramming it through parliament instead of just a for instance. Completing the M8, a new Forth crossing, Dualling the A9 and A96, opening the Borders railway?

      Now we've arrived in 2017 and homosexual politicians have God-like powers and can decide people are evil homophobes and we can't dispute their wisdom because they're a slavering dyke.

      Bugger that for a free country.

    2. I meant to add I also prefer riding goats

    3. Ham-shank redemption, you frackin slime-mould.

  4. All I see from this is another reason to be independent we cant get to make our own laws when they are needed.Parity with the rest of the UK will never happen unless we are independent.I'm old enough to remember back then and the "jokes" that got made by "top" comedians.I'm straight but I do have sympathy with fellow citizens who are gay in the broadest sense of the word.I could never understand why people cant seem to concentrate on their own lives without interfering in other folks business.Its a kind of bullying and as is usual its weak minded "people" that do the bullying.Whether they do it by writing or in person usually only when there are a few of them against one I have been that one,but got smart enough to get them one by one,and from I was mostly left alone.I digress as I do,any way we must be independent to go our own way and educate the citizens in a better way.I have always wondered why are those that are not so clever allowed to leave school,college and never get to university,surely the thickest of us need more education not less.Myself in point I failed my "Quali" bad writing teacher could not understand what I had written so he said! anyhow I went to the junior secondary school,and left at 15,started work the same day,a few years later I was making almost 3 times what he that teacher who made my life a misery was getting,and I let him know,in a nice manner,felt good.

  5. There was also a breed of ultra Protestant, puritanistic Presbyterians in Scotland at that time, matched on the other side of the sectarian divide by socially conservative Roman Catholics. Neither group were particularly keen on gay people or their rights. So Westminster avoided antagonising them.