Meeting of the Parliament

Meeting date: Tuesday, November 7, 2017

Official Report 778KB pdf

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Apology (Same-sex Sexual Activity)

Our next item of business is a statement by Nicola Sturgeon, on an apology to people who were convicted for same-sex sexual activity that is now legal. After the First Minister’s statement, I will ask the other parties to contribute, so there should be no interventions or interruptions.

14:12  

I am grateful for the opportunity to address Parliament. Today marks an important milestone in achieving true equality for Scotland’s lesbian, gay, bisexual, transgender and intersex community.

This morning, the Historical Sexual Offences (Pardons and Disregards) (Scotland) Bill was published. Scotland has travelled so far in recent years in relation to LGBTI equality that it still shocks us to recall that as recently as 1980—well within my lifetime—consensual sexual activity between men was still classed as a criminal activity in this country. Furthermore, the age of consent was lowered to 16 only in 2001, two years after this Parliament came into being. Before then, hundreds of people in Scotland were liable to be convicted as criminals simply for loving another adult.

The words that are inscribed on the Parliament’s mace set out the values that we seek to uphold and promote: integrity, wisdom, justice and compassion. Yet, even within the lifetime of this Parliament, this nation’s laws have created suffering and perpetrated injustice. The bill that we have published today addresses that injustice: it provides an automatic pardon to men who have been convicted of same-sex sexual activity that would now be legal. In addition, the bill will establish a new procedure whereby people can apply to the police for their offence to be disregarded from criminal records, which means that it will not, in the future, appear on a disclosure certificate.

The legislation therefore has both symbolic value and practical value. The pardon sends an unequivocal message to anybody who was convicted of an offence for an activity that is now legal: the law should not have treated you as criminals and you should not now be considered as such. Instead, this Parliament recognises that a wrong was done to you.

The disregard will have an important practical consequence: it will allow people to ensure that their past criminal records will no longer have an impact on their day-to-day lives. That will change people’s lives. At present, as the Equality Network and others have highlighted to us, some people who were convicted merely of showing love and affection to their partners still have to explain their criminal record every time they move job or apply for an internal promotion. That is quite simply unacceptable, and we are determined that it will end.

The bill that we have introduced will right an historic wrong. However, I want to go further today, and to do something that legislation on its own cannot do. A pardon is, of course, the correct legal remedy to apply for the convictions that we are talking about, but the term “pardon” might still, to some people, imply that Parliament sees those people as having done something wrong. That is, after all, a common context in which a pardon might be granted.

However, as all of us know, that is not the case here. For people who were convicted of same-sex sexual activity that is now legal, the wrong has been committed by the state, not by the individuals—the wrong has been done to them. Those individuals therefore deserve an unqualified apology, as well as a pardon. That apology, of course, can come only from the Government and from Parliament. It cannot come from the justice system; after all, the courts, prosecutors and police were enforcing the law of the land, at the time.

The simple fact is that, over many decades, parliamentarians in Scotland supported, or at the very least accepted, laws that we now recognise were completely unjust. Those laws criminalised the act of loving another adult; they deterred people from being honest about their identities to family, friends, neighbours and colleagues; and, by sending a message from Parliament that homosexuality was wrong, they encouraged rather than deterred homophobia and hate.

Therefore, today, as First Minister, I categorically, unequivocally and whole-heartedly apologise for those laws and for the hurt and the harm that they have caused to so many people. Nothing that Parliament does can erase those injustices, but I hope that this apology, alongside our new legislation, will provide some comfort to the people who have endured them. I hope that it provides evidence of this Parliament’s determination to address the harm that was done, as far as we can do so.

The final point that I want to make is that although the bill marks an important milestone in Scotland’s progress towards LGBTI equality, our journey is not yet complete. Given how recently the laws that I have just outlined were in force, it is remarkable and inspiring that Scotland is now considered to be one of the most progressive countries in Europe when it comes to LGBTI equality. Indeed, one of the proudest moments of my 18 years as a member of the Scottish Parliament—I know that it was one of the proudest moments of many MSPs across the chamber—was in February 2014, when people from all parties came together to support equal marriage.

However, as all of us know, until we live in a country—in fact, until we live in a world—in which no young person suffers hate or fear or discrimination or prejudice simply because of their sexual orientation or their gender identity, we still have work to do. That is why we have promised to improve our gender recognition legislation. We know that we need to ensure that it reflects the experiences and needs of transgender and intersex people.

It is also why I attach such importance to the Scottish Government’s work with the time for inclusive education—TIE—campaign, to ensure that our young people do not have to fear bullying in school. It is why we are reviewing hate crime legislation, to ensure that our laws provide the right protections against bigotry and hatred, and it is why I hope that today’s apology, in addition to its specific significance for gay men, sends out a wider signal to the LGBTI community: the Scottish Government and the Scottish Parliament are utterly committed to delivering true equality for LGBTI people in Scotland, and wherever there are societal, cultural, legislative or regulatory barriers to achieving that, we will seek to remove them. We will never again accept laws or behaviours that discriminate against you and hurt you.

Although today is a day for looking back and, rightly, for apologising for past wrongs, it is also a day that points, I hope, to a better future. It is a day when Parliament promotes and can be proud to live up to our shared values: integrity, wisdom, compassion and—above all, today—justice. [Applause.]

When this Parliament passed equal marriage legislation, I commented on how fast Scotland had changed and was changing and that the change was for the better. I am not yet 40, and the idea that, in my lifetime, we have gone from consenting adults being persecuted and criminalised for forming a loving relationship to those same couples having marriage extended to them is remarkable progress. However, the jigsaw of equal rights is not yet complete, and today we see a significant piece added. In Scotland, acts that are consensual, adult and innocent were once considered illegal and immoral. Now that attitudes and the law have advanced, it is right that we offer a pardon and help to remove criminal records that persist.

It has been called Turing’s law. Alan Turing’s case deserves its high profile, but the scope and the scale extend far beyond a single man, no matter what his achievements were. Most estimates place in the thousands the number of men in Scotland, both living and dead, who will now be pardoned. To give a sense of the wider scale, Stonewall estimates that the number of men who have been convicted throughout the United Kingdom to be anything up to 100,000, while the UK Government estimates that around 49,000 men have had their names cleared by the pardon in England and Wales, which was passed earlier this year.

We are talking not about a few unlucky individuals but about entire generations who faced the criminalisation of love. My hope for those men and their families is that they now feel a weight lifted and that, as well as criminal records being formally wiped clean, any lingering sense of legal stigma and any last shadow of unfair disgrace is firmly banished. My hope for the young men of today is that they never know what it is like to fear their love being found out.

It is striking that the progression of law across those generations is still relatively recent and based on incremental change. The Sexual Offences Act 1967 only partially decriminalised homosexuality. Legal changes of the 1980s and 1990s inched us forward. In recent years, we have seen the equalisation of the age of consent and the passage of equal marriage legislation. Today’s change is one such foothold in that advance.

As the bill progresses, our focus will be on the practical implementation and on the legal detail. There are two essential components of the change: the pardon and the disregard process by which individual men have their criminal records erased. I believe that both aspects are necessary and right. We are clear that the record should be set straight through an overall pardon, but it is obvious that retrospective changes to criminal records need some sort of process and have to be managed. That is the function of the disregard process.

The Scottish Government’s approach is, in our view, proportionate. Although we will look at the supporting consultations and proposed changes in detail as they are published, at this stage we believe the approach to be correct in its fundamentals. It is also reasonable to list exemptions and to note that the pardon does not apply when the act is still a crime. That is only sensible, and it will ensure that a well-intentioned bill does not have troubling, unintended legal consequences. We will scrutinise the bill in that constructive spirit to ensure that it fulfils its aims in the best way possible.

It is right that we find ourselves at this place today. It is right that men who committed no offence beyond falling in love, whose consensual commitment can now be recognised publicly and can even be formalised through partnerships and marriage, will have their records wiped clean. It is also right that we apologise for the harm that has been caused. I add my unequivocal and whole-hearted apology to that of the First Minister.

Scotland is a better place to be gay now than it has been at any time in my lifetime, and this action will make it better still. We welcome today’s statement, and we back the principles of the bill that it precedes.

In this place, apologies are often offered through gritted teeth and follow a period of acrimony in which one party has actively pursued and proven a mistake or a flaw, a diversion or a hidden truth, or even a scandal. This apology is very different. It is offered with warmth and in the spirit of love and inclusion. It takes a deep breath and a big heart to say sorry for mistakes of the past, and it takes an even bigger heart to do so when those errors are not one’s own. I offer the congratulations and gratitude of Labour members to the Government for stepping up and saying sorry today.

We are, of course, saying sorry to the men who have been arrested, charged and convicted of loving another man. As we have heard, homosexuality was decriminalised in Scotland only in 1980 and the law on sexual activity was equalised only in 2001. The apology matters because it affects men who are alive today, whose lives were destroyed by legislation that promoted fear and hate. In saying that the love of two men was unnatural—something other, something criminal and something wrong—those laws fed intolerance and homophobia.

The apology also matters to those who loved and still miss the men who are no longer with us today—men who died with criminal records, many of whom took their own lives because they could no longer bear the shame and isolation that they faced. Today, in our Scotland, however proud we are of it, gay men are still more likely to consider suicide. Stonewall Scotland’s 2017 “School Report” tells us that one in four young LGBT Scots has considered ending their own life, which is a truly shocking figure.

In my adult lifetime, the cause of the LGBT community has moved on from fighting against homophobia and demanding human rights to fighting for inclusion and equal rights. We should be proud of that journey but not complacent. We should be proud of how far we have come from section 2A. We have had the introduction of civil partnerships, equal marriage and adoption rights, the lifting of the ban on serving in the military and the introduction of hate crime legislation, but we cannot risk complacency. It is critical that we uphold and apply anti-discrimination laws and ensure that the asylum system protects those who are fleeing violence and sometimes death, as well as those who are seeking refuge because of their sexuality. We should also whole-heartedly back the TIE campaign and its calls for a truly inclusive education system.

Today is a landmark day in Scotland’s LGBT history. In apologising, the First Minister accepts that, for Scotland to fulfil its vision of an inclusive future, it must be at peace with its past. The Government’s proposed bill will bring that peace by pardoning all those men who were convicted of same-sex sexual activity that is now legal. I understand from the First Minister’s statement that such a pardon will lead to the crucial formality of disregards—in other words, the wiping clean of the slate and the clearing of the criminal records of those who have been convicted, so that no such scars of history appear on documents such as disclosure checks.

Today, we apologise to Scotland’s gay and bisexual men for criminalising their love of sex and their love for one another, but it is worth reminding ourselves why the apology does not apply to women. The reality is that it has never been a crime for two women to be together, although the history books teach us that lawmakers did try to make it so. In 1921, the House of Commons passed an amendment to make sex between two women illegal, but it was rejected by the House of Lords, because it did not want ordinary women to know that such a thing existed. Very often, women had to pass as men to live their lives, and, if they were caught, they were sometimes convicted of fraud. Most were not criminalised for their love of one another, but they were still punished. They were invisible and demeaned, ostracised from their communities and families, punished and painted out of history.

Yet, through the years, women and men—gay and straight, intersex, trans and non-binary, of all ethnicities and races, of all faiths and none—have marched together to demand tolerance and respect with pride and passion. That march has led us here today. Today’s apology is the product of their work—their sweat and tears—and I thank them deeply and personally for it. Crucially, today’s apology allows our Scotland to progress another step towards an equal and inclusive future for all.

I am grateful for the opportunity to respond to the statement, and I very much thank the First Minister for having made the apology that we have heard.

I came out at a time when the age of consent for gay and bisexual men was still 21 and when, even for young adults in consenting and normal teenage relationships, just holding hands would, in theory, have risked the possibility of arrest.

I went to university at the time of the odious James Anderton—“God’s Cop”—in Manchester. He built a reputation for using his office to pursue his particular variety of religious extremism. He called for sex between men to be made criminal once again and pursued an agenda of aggressive and violent disruption of the gay scene in Manchester.

To spin forward, just 10 years later I was working as an LGBT youth worker in Glasgow. One of the last things that I had to do before I had the privilege of joining the Scottish Parliament was a timeline exercise. The timeline went from the earliest example of a cave art image from 8,000 BC right through to modern history. The young people with whom we worked were asked to pick a card, look at the particular moment in history, and place it on the timeline to say when it happened. When young people drew the card on the decriminalisation of male homosexuality, one of the most common responses was astonishment and bafflement that it had ever been criminal. It was such a brief period of progress; at that point young people were growing up without the thought in their head that they would once have been criminalised.

I very much welcome the progress that has been made and the support that has been shown across the political spectrum, but it is worth remembering that not everyone will welcome it. There are people who reject the principle that Governments ought to apologise for things that were done by previous Governments or previous generations. I am reminded of the most recent item on the timeline: an apology from the German Government for those who were sent to concentration camps during the second world war. It is an important principle that an apology that is issued by a Government is not merely on behalf of that Government but on behalf of government more generally and our society. Parliament also has a responsibility to make an apology because, as Kez Dugdale reminded us, the prejudice, persecution and discrimination were not only legal, but societal. It was about our whole society. Therefore, I offer my apology, and I hope that we all offer our apologies, on behalf of the Parliament, just as the First Minister did on behalf of Government.

The laws and the persecution were not merely the act of a wicked Government. Although most of us would regard those actions as morally indefensible today, at the time they represented the consensus view of society at large. The attitudes were political, legal, religious and social.

There will be people who do not welcome today’s step, because they have not made the journey with the rest of society toward the abandonment of prejudice. There is much work still to do. The current climate of debate around misogyny and sexual harassment demonstrates to us how long our society is capable of allowing and permitting despicable behaviour to persist, even decades and generations after progress has begun to be made. Today’s statement should be a reminder of that, too. It should be a reminder that we have made great progress but that inequality, prejudice and bigotry still persist in our workplaces, in our schools, in our media and in our politics. We still give those attitudes too much room. We still make excuses such as, “It’s a matter of conscience” for those who oppose equality under the law and equality of respect for lesbian, gay, bi, trans and intersex people. We still make too many excuses for those who, even now, cannot accept that same-sex relationships are equal and that the laws against them, not the people against whom those laws were used, were morally wrong.

Let us all recommit to continuing the progress that has been made and ensuring that the next generation has nothing to apologise for on our behalf.

I thank the First Minister for making her statement and her apology on behalf of the Scottish Government. It is an important thing to do.

For many gay people, the idea of a pardon carries with it connotations of forgiveness for a wrongdoing. Today’s apology from the First Minister makes it clear that it was the law, the enforcement of that law and the attitude of those in authority in our country’s past who were wrong.

Today, we are all adding to that apology by reflecting on the wasted potential and lost achievements of those men whose lives were limited or tragically cut short because of this injustice.

People were imprisoned and fined. Their lives and families were in many cases ruined. Men became outsiders from their families and their communities. Our country is poorer for the limits that we placed on those men’s freedom. It is right that the Parliament stands together to apologise for that.

It is easy today to imagine that this is all ancient history. Certainly, when we see Alan Turing, we see photographs in black and white. However, it is estimated that most of the prosecutions were in the 1980s, easily within living memory, with many of those who were arrested and prosecuted and many of those who made the arrests and led the prosecutions still being with us today.

In the summer, the BBC showed its dramatised documentary “Against the Law”, which commemorated 50 years since the partial decriminalisation of homosexuality. One of the testimonies was from Professor Roger Lockyer, who lived with his partner—later his husband—for more than 50 years. He described with great humour but also with great poignancy the struggle, the secrecy and the injustice of the law of this country over those 50 years and the decades before them. He overcame all that to have an academic career of importance and achievement: one that increased our understanding of history. However, he also lived through and made a part of history, so it was sad to learn last week that he had died—at 89 years of age, but having lived to see his equality recognised and set into law.

Today, this Parliament shows respect to all those individuals who were wronged by our laws. In closing, I note that individual human rights, particularly for gay people, are not universal. In recent weeks, we have heard of serious oppression and mistreatment of gay people in Azerbaijan, Chechnya, Indonesia and Egypt. Our country needs to stand for equality and for respect for the individual. We will not be able to stop speaking up for that after today; we must continue that battle for people around the globe.

14:39 Meeting suspended.  

14:41 On resuming—