The Law Relating To Homosexual Acts In Scotland by Robert Thomson, Secretary, Scottish Council for Civil Liberties.
Most people in other parts of Britain do not realise that Scotland has a separate legal structure with many fundamental differences to that in England and Wales. Some Acts of Parliament do not apply to Scotland and many items of government policy need separate legislation: for example, going through Parliament at present is the Housing Finance (Scotland) Bill which seeks to increase local authority rents in Scotland as does the Housing Finance Bill in England and Wales. The chief law officer in Scotland is the Lord Advocate – at present Norman Wylie, QC, MP. He combines the duties of the Lord Chancellor, Attorney-General and the Director of Public Prosecutions in England and Wales. Through his Department, the Crown Office in Edinburgh, he controls prosecutions throughout Scotland by a system of Procurator Fiscals. The Fiscals are similar to District Attorneys in the United States.
“I asked the Crown Office about this and I was informed that efforts have been made to find when the last prosecution of two consenting adult males took place but nobody was able to remember a single one… and the fact is that they have never done so in living memory so far as I can ascertain.”
So said the Earl of Dundee on 13 June 1967 during a debate on the Sexual Offences Bill. His point was the main argument for not including Scotland in the provisions of the Sexual Offences Act 1967.
However. as late as 1970 when the Crown Office was approached directly on this matter, it transpired that their policy was much more illiberal than supposed. The c Crown Agent stated that those laws which related exclusively to male homosexual behaviour were enforced in so far as it was possible to do so but that since most homosexual acts were conducted in private and because of the Scots Law requirement of corroboration, prosecutions seldom, if ever, arose.
It would seem, therefore. that some duplicity and hypocrisy was practiced at the time the Sexual Offences Bill was going through Parliament. If some item of legislation is not being enforced, surely that is an argument for removing it from the Statute Book rather than for retaining it. Obsolete legislation bring the whole legal system into disrepute.
This type of hypocrisy exemplifies establishment attitudes in Scotland. Sex is not a “nice” subject. “Decent” people don’t discuss it or even admit it exists. This form of repression permeates Scotland, for example, regarding the licencing laws, places of entertainment and Sunday observance. The reasons for this altitude are complex but the historical role of the Church of Scotland is an important factor.
The facts, then, are that for practical purposes the law is not enforced though there would seem to have been some prosecutions of men for acts with younger men or boys, convictions are usually gained through voluntary confessions. However there are many convictions for acts of public indecency in toilets to which homosexuals are driven because of the lack of social meeting places.
The law (Section II Criminal Law Amendment Act 1885) remaining on the Statute Book encourages social discrimination of homosexuals, makes them feel insecure and open to blackmail and fosters prejudice. Scotland is a relatively small country with few large cities; because of the prevailing attitude, described above, any person admitting or being “found out” as gay, faces loss of job and social ostracism. This includes women who, though they don’t face let penalties, are in many ways worse off, certainly in the availability of solid meeting places.
In 1971 the following motion was passed at the Annual General Meeting of the Scottish Council for Civil Liberties:
“This AGM notes the continuing social and legal inequalities of the homosexual in Scotland and recommends to the Executive Committee and the Parliamentary Civil Liberties Group to press for sound legal reforms for an early removal of remaining discrimination.”
Together with the Scottish Minorities Group which is affiliated to the SCCL, it is campaigning for law reform. The Scottish Minorities Group was set up to look after the interests of sexual minorities in Scotland.
A memorandum prepared by SMG was sent to all Scottish MPs. In a covering letter the SCCL stated:
“We adopt as our basic principle the view that sexual activity of any description between consenting parties should not be subject to legal constraints, with exceptions only in the case of provisions necessary to protect the young and immature and to prevent public indecency. We also believe that social discrimination against minorities such as homosexuals is unjustifiable but it can only be eliminated when the law ceases to discriminate.”
Copies of the memorandum were also sent to social workers and other organisations. The press were informed but published little.
The response of Scottish MPs to the memorandum was disappointing. We received replies from a number of MPs who said they would actively oppose any attempt to change the law. The majority of other replies said “Yes, I agree with you but let sleeping dogs lie”. Those MPs who offered to help all thought it was hot the best time to try and introduce reform. Our most helpful replies were from several members of the House of Lords.
Frankly, it seems unlikely that we will get any constructive action from the present Parliament since the “hang ‘em and fog ‘em” brigade seem to be in the ascendancy. However, one of our lawyers has prepared a draft Bill which we hope to introduce into the House of Lords sometime this year to test Parliamentary and public reaction. In addition, members of the Law Reform Committee of SMG have been personally lobbying MPs and this line of attack seems very useful.
The SCCL has been involved mainly in the campaign for legal equality, SMG has been doing a first-class job in contacting and speaking to social workers, churches, university organisations, local councillors MPs and school teachers. This kind of face-to-face contact will do more than any law case, to dispel the public image of the homosexual as some effeminate sex pervert and lead to the realisation that they an ordinary decent citizens attracted to their own sex.
The SCCL is the Scottish arm of the National Council for Civil Liberties (NCCL)
All the SCCL’s work is done by voluntary helpers; solicitors and advocates, trade unionists and academics, social workers and housewives. There is a Scottish sub-Committee of the Parliamentary Civil Liberties Group.
Members of the NCCL living in Scotland an automatically members of the SCCL. Membership is administered by the NCCL. The SCCL receives half the subscription fees of Scottish members.
SCOTTISH MINORITIES GROUP.
EDINBURGH, from 7.45pm to 9.00pm in the basement of 23 George Square. Check with Mike Coulson at 031-225 4395. Women’s Group at 7.30pm. Saturdays from 9.30pm to 12.30pm coffee/food/dance at the same address.
GLASGOW, meetings every Tuesday at 8.00pm an 8 Dunham Street, Glasgow C4. Women’s Group at 184 Swinton Road, at 8.00pm. Third Friday of every month at 214 Clyde Street (library of community house) invited speakers, from 8pm.
DUNDEE, every Friday at Dundee University Chaplaincy. Social. Details from 041-771 7600.
ABERDEEN, Weekly social meetings, Details from 041-771 7600.