Scotland has its own independent legal system, education system and religious institutions, and gay men were criminalized there long after England ended their laws.
A curious, or perhaps irksome, aspect of ‘British’ approaches to the history of sexuality is that they tend to neglect the variation of experience within the United Kingdom. I’ve lost count the number of times I’ve read, or watched, or marked, pieces offering a summary of developments for non- heterosexual Brits over the past century, which often contain statements like this: ‘Gay men in Britain had to wait until 1967 before their sexual lives were legal’. This is true for some gay and bisexual men living in England and Wales but not for those living in Scotland, or Northern Ireland. Being an academic based in Scotland means that a share of my research relates to the Scottish dimension, and what many forget, or are ignorant of, is that Scotland has its own independent legal system, education system and religious institutions. I’ve heard Scottish work described as ‘local’ or ‘regional’, which ignores important aspects of Scotland’s cultural and political history, and its relations to the somewhat Anglocentric historiography of sexuality in the UK.
Scotland was not included in the 1967 Sexual Offences Act and Scottish gay and bisexual men were consigned to a further 13 years of criminalisation. Yet, that only tells part of the story. From the post-war period onwards there were few prosecutions in Scotland relating to private, consensual homosexual acts. This was not the result of forward-thinking legal attitudes but peculiarities of Scots Law. Neither was the delay the result of the influence of Scottish churches, which have perhaps been given undeserved prominence in debates about sexual politics and rights. In reality the Catholic Church in Scotland was rather quiet on the issue, but was privately, and pastorally, supportive of law reform organisations. Indeed, it saved the Scottish Minorities Group (the country’s foremost homosexual law reform organisation) from ‘abandonment’, by offering it premises, when SMG’s relationship with the Church of Scotland stuttered during 1971 (they had previously supplied meeting rooms), and Catholic priests were not infrequent speakers at SMG events. The relationship between SMG and the Church of Scotland had been relatively supportive from the birth of SMG in 1968/69 until 1971, and while initially protesting loudly against decriminalisation, it was internally split on the question and by the early 1970s cautiously supportive of legal change.
James Adair, the dour, opinionated former procurator fiscal, may well have been seen as the most prominent Scot on the Wolfenden Committee, and the fiercest opponent of legal change, yet his influence on Scotland was patchy. His comments on decriminalisation north of the border may well have been loud, but they were also mendacious. He claimed that legalisation would lead to the development of homosexual subcultures in Scotland but would, through his previous role as procurator fiscal, have been well aware of the already flourishing queer scene in major Scottish cities.
One could argue that the main obstacles for legal change in ’67 related to the now thorny issue of ‘corroboration’ under Scots Law (that there must be at least two independent sources of evidence), and the policy of prosecuting only in the public interest (prosecuting consenting adults for something committed in private was viewed as counterproductive). For many Scottish legislators the cry was ‘dinnae meddle!’ – offences which were prosecuted in Scotland would still be offences in England and Wales beyond 1967 (e.g. cottaging). This of course ignored issues relating to human and citizenship rights, and although temporary was an unsatisfactory situation.
Originally published by NOTCHES: (re)marks on the history of sexuality, 02.19.2014, under the terms of a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International license.