Sexual activity between men has been legal since 1980.
The Bill aims to:
- pardon those convicted of criminal offences for engaging in same-sex sexual activity when it was illegal
- enable a person with this conviction to apply to have it disregarded
The Bill will also ensure information about a historic conviction will not show up in a disclosure check.
You can find out more in the Explanatory Notes document that explains the Bill.
Why the Bill was created
There are men in Scotland who have criminal convictions for same-sex sexual activity that is now legal.
Information about those convictions may still be held on records maintained by Police Scotland. These convictions will likely be ‘spent‘ convictions under the Rehabilitation of Offenders Act 1974. These would not be disclosed on a basic level disclosure. When a person applies for a role that needs a higher level disclosure certificate these could be shown.
This is discriminatory.
You can find out more in the Policy Memorandum document that explains the Bill.
Becomes an Act
The Historical Sexual Offences (Pardons and Disregards) (Scotland) Bill passed by a vote of 119 for, 0 against and 0 abstentions. The Bill became an Act on 11 July 2018.
The Scottish Government sends the Bill and related documents to the Parliament.
Related information from the Scottish Government on the Bill
Why the Bill is being proposed (Policy Memorandum)
Explanation of the Bill (Explanatory Notes)
How much the Bill is likely to cost (Financial Memorandum)
Opinions on whether the Parliament has the power to make the law (Statements on Legislative Competence)
Information on the powers the Bill gives the Scottish Government and others (Delegated Powers Memorandum)
Stage 1 - General principles
Committees examine the Bill. Then MSPs vote on whether it should continue to Stage 2.
Who examined the Bill
Each Bill is examined by a 'lead committee'. This is the committee that has the subject of the Bill in its remit.
It looks at everything to do with the Bill.
Other committees may look at certain parts of the Bill if it covers subjects they deal with.
Who spoke to the lead committee about the Bill
First meeting transcript
The Convener (Christina McKelvie)
Good morning and welcome to the third meeting in 2018 of the Equality and Human Rights Committee. I make the usual request that mobile devices be switched off and mobile phones be taken off the table. We will go straight into agenda item 1.
Today marks the start of LGBT history month in the United Kingdom, and 2018 sees several important anniversaries in the movement for same-sex equality. First, 2018 sees the 40th anniversary of the murder of Harvey Milk, one of the first high-profile openly gay politicians to be elected in a western democracy and a member of the San Francisco Board of Supervisors. His life and work inspired a generation of lesbian, gay, bisexual, transgender and intersex politicians to seek election and begin to turn the tide of hatred of and discrimination against LGBTI people.
This year also sees the 30th anniversary of the passage of the Local Government Act 1988, which contained the controversial section 28 provisions that prohibited local government from promoting homosexuality in schools. The Scottish Parliament led the way in repealing section 28 in one of its first acts. The committee’s work has led to the current LGBTI inclusive education working group, which is working with the Scottish ministers to ensure that all forms of anti-LGBTI discrimination and prejudice are removed from our education system.
However, despite that progress, the discrimination of the past casts a long shadow over the lives of many LGBTI people in Scotland to this day. That is why it is fitting that our main item of business today is our inaugural oral evidence-taking session on the Historical Sexual Offences (Pardons and Disregards) (Scotland) Bill. The bill seeks to right yet another historical wrong against gay and bisexual men by addressing the legacy of historical convictions for offences that would not be a crime today.
We have only one witness: Tim Hopkins, who is the director of the Equality Network. We are grateful for his written evidence and incredibly grateful that he has come along to speak to us. I hope that he will be able to give us an opening statement on the bill, what it will do and areas where we need to tighten it up.
Tim Hopkins (Equality Network)
Thank you very much indeed for inviting me and for those comments. As you say, today is the first day of LGBT history month and the bill is, in fact, making history.
I will say two things about the bill. The first might sound slightly negative but it is important to recognise the bill’s limitations, and the limitations of what the Parliament can do, to
“lift the burden of conviction”,
as the policy memorandum says, and of the history of the discriminatory laws that affected gay and bisexual men.
The First Minister got it right when she made her statement of apology in the chamber on the day the bill was introduced. Among other things, she said:
“Nothing that Parliament does can erase those injustices, but I hope that this apology, alongside our new legislation”—
that is, the bill—
“will provide some comfort to the people who have endured them.”—[Official Report, 7 November 2017; c 8.]
That gets the balance exactly right. The discriminatory laws that criminalised gay and bisexual men affected not only people who ended up with convictions, although many of those people were hugely affected. I am afraid to say that some of them will have taken their own lives as a result of their conviction. Some will have spent time in prison, but those who were only fined will undoubtedly have been affected in important ways by their conviction. However, criminalisation affected all gay and bisexual men in the 20th century. People lived in the shadow and fear of being discovered and prosecuted, so they had to live double lives.
Although criminalisation applied to men only—women were not criminalised in the same way—it had a knock-on effect on all LGBTI people. The committee has received written evidence from a woman who was dismissed from the armed services because she was a lesbian. Although she had not committed an offence, as men in the armed services were seen to have done, people who were lesbian, gay or bisexual, whether men or women, were routinely dismissed, and the criminalisation of gay and bisexual men underpinned that discrimination.
There were huge effects on the people who were affected, and some of those effects continue. The bill cannot hope to make up for that discrimination and its effects, but we have to do what we can do. Having said that, as far as we are concerned, the bill is welcome.
The bill does two things. Its first effect is declaratory, and it declares three important things. First, section 1 says clearly that those convictions were wrongful and discriminatory. It is important to say that, and the legislation that has similar effect in the rest of the United Kingdom has been criticised for not saying it. There is a concern that, if you pardon someone, that implies that they must have done something wrong, and section 1—alongside the First Minister’s apology—makes up for that by saying that people did not do anything wrong and that it was the law that was wrong.
Secondly, the bill declares to people with those convictions that they have been pardoned. We can perhaps talk about that in a bit more detail later, but that pardon is formal and symbolic; it has no practical effect, but it gives some comfort to people who had those convictions: not only have their convictions been declared to be wrong and discriminatory but they have formally been pardoned.
The declaratory effect of the bill is much wider than that, because it also declares, quite clearly and publicly, that Scotland now thinks that discrimination should end and wants to treat its LGBTI citizens equally, and that the Scottish Government and the Scottish Parliament are determined to take whatever steps are possible to make that equality a reality.
The bill also has a practical effect, which is where the disregard comes in. If you are going to pardon people, you have to make that pardon concrete, as far as you can. That is what the disregard does. We can talk about why that is done on the basis of application rather than being automatic, because that is an important point, but the disregard itself is welcome, and its effect is quite wide. It declares that the conviction cannot be used in any way to disadvantage somebody, because it also declares that the conviction has to be regarded for all purposes as never having happened.
Overall, we very much welcome the bill. We welcome its declaratory effect and its practical effect. We hope that the committee and the Parliament as a whole will support it. It has wide support in the country as a whole.
Thank you for that opening statement, which gives us a number of questions that we can pursue.
You mentioned that section 1 declares the law to have been wrongful and discriminatory. Can you tell us what other differences there are between the bill and the English Policing and Crime Act 2017, and whether there are any lessons that we can learn from that legislation?
The English legislation was welcomed when it was introduced. In fact, disregards have been available in England and Wales for five years, and the pardons legislation came into effect a year ago for the rest of the UK—that legislation also extended the disregards to Northern Ireland.
However, the English legislation has been criticised. In fact—to talk about history again—last year was the 50th anniversary of the Sexual Offences Act 1967 in England and Wales, which decriminalised sex between men in certain circumstances. There was a series of television programmes in which men who had those convictions were interviewed, and a number of them criticised the legislation that was introduced for the rest of the UK. They made three points. One was that they were uncomfortable about being told that they were pardoned, because that implied that they had done something wrong and were now generously being given a pardon—that is what a pardon normally means. That is why it was important to us to say that it must be made clear that men in that situation did nothing wrong. Section 1 of the bill does that, especially when taken together with the First Minister’s apology. It will be really important to continue to make section 1 and the apology public in order to allay the concerns about what the pardon means.
The second concern about the English legislation was that the pardon is provided automatically only to men who died before that legislation came into effect, which was 31 January last year. That means that, if you were still alive on 31 January last year, you would not be automatically pardoned. Even though the pardon is only formal and symbolic, to get the pardon, you have to apply for the disregard.
We estimate that only about 2 per cent of the people in England and Wales with those convictions who are still living have applied for the disregard. There are a number of reasons for that. Applying for the disregard is a bit complex—there is a three-page application form and you have to give all sorts of details about the original conviction. A lot of men do not want to do that; perhaps they do not want to be reminded of what happened in the past. If you are not running into practical difficulties regarding the records of your conviction, why apply for the disregard?
As I say, 98 per cent of people with those convictions south of the border have not applied for the disregard and therefore have not received the pardon, even though it is only formal and symbolic. In fact, any man in that situation who has died in the past 12 months will never receive the pardon. Men who died before 31 January last year received the pardon automatically. Any man who has died in the past 12 months without having applied successfully for the disregard in those 12 months, or earlier, will never receive the pardon. Any man who is still alive has to apply for the disregard to receive the pardon. We can see no good reason for that. Our colleagues in Stonewall in London were very critical of that aspect of the legislation.
One man in that situation was interviewed on television last summer and said that not only was he annoyed about the fact that he had not received the pardon but he realised that the apology that was given in the House of Commons by a junior Government minister last year specifically applied only to men who had received the pardon. He thought that he had received an apology and was happy about that, but when he looked at the wording he discovered that only men who had received the pardon were receiving the apology, so therefore he had not been apologised to either. That is a major flaw in the legislation for the rest of the UK and I am very pleased that the Scottish Government said at an early stage that it would ensure that its legislation gave the pardon automatically to all men with those convictions, both people who are still alive and people who are no longer alive.
The third problem that has been identified by groups such as Stonewall and men in this position down south is the limited list of offences that is in the legislation for the rest of the UK. That legislation covers what are broadly—certainly in Scots law—called homosexual offences. In Scotland, those offences are called gross indecency and sodomy, and in England they are called gross indecency and buggery. What is missing in particular from the English legislation is coverage of the offence that is called importuning, which is where men were prosecuted for chatting up other men. Some of those men were entrapped. Men who were interviewed on television last year described being at gay bars in London and chatting up other men, perhaps outside the bar, only for one of them to say, “I’m a police officer and you’re nicked for importuning.” The men received a criminal record, and, typically, a fine.
Controversially, that offence is not covered by the legislation south of the border. Former Scottish MP John Nicolson introduced a private member’s bill in the House of Commons to do that job—he drafted his bill to include the offence of importuning. Unfortunately the UK Government, having initially said prior to the election last year that it would support that bill, decided when it came down to it that it would not support it. Instead, it supported some amendments to a bill of its own in the House of Lords, which excluded that particular offence. Under pressure, the UK Government agreed to an amendment to include an order-making power to add other offences to the list in the legislation, but that power has not yet been used, so it is still a live issue for the rest of the UK.
I am very glad to say that, against that background of quite public controversy down south, the Scottish Government thought about the issue quite carefully and has included that offence, both explicitly in the list of offences in section 2, and in the definition of sexual activity between men. Sexual activity between men is explicitly defined in section 2(4) as including
“conduct intended to introduce or procure such activity.”
That is there to make sure that the legislation covers cases in which a man was prosecuted simply for chatting up another man. As I have said, the word that is usually used for that is “importuning”.
Those are the three main concerns that have been raised about the legislation for the rest of the UK. I am glad to say that the Scottish Government has listened to those concerns and has dealt with them effectively in the bill.10:15
Thank you very much. Stonewall UK is coming to see us at next week’s committee meeting, so we will interrogate the differences further then.
We will move on to questions from committee members. Mary Fee has the first question.
Mary Fee (West Scotland) (Lab)
Good morning, Tim. Thank you very much for your very helpful opening statement.
I have a couple of questions. The first is about individuals who apply for a disregard. What support will they and their families need? The disregard process will affect not just those individuals but their wider families. I do not know whether the process will be the same here as it is in England, where you said that there is a three-page application form. There may be some individuals who will need help. Should something be put in place to ensure that there is support for such individuals and their families?
Yes—very much so. The first issue is one of publicity. It will be very important to publicise the provisions of the bill once enacted, to ensure that the maximum number of people in that circumstance know about it. The majority of them will be in their 50s or older and will not necessarily be linked in with networks such as ours. Therefore, the more publicity that there is, the better.
In our submission, we mentioned that it is very important that support is provided by the Scottish Government. Disregards will effectively be implemented by the Scottish Government, to which people will apply, so there will be an office somewhere in the Government with staff whose job it will be to deal with them. It will be very important that the process is as accessible as possible and that support is provided to people who need it. That might be communications support or support with filling in the form and advice on exactly what the form asks about.
In its submission, the Law Society of Scotland suggested that it would be good if legal aid were to be available for advice that somebody might need from a lawyer in order to make such an application. I certainly agree with that.
You are quite right to say that it is important that all those forms of support and advice should be available to people making applications for disregards. The cost will not be great, because the number of such applications will be very small.
Should someone automatically be given legal aid to progress an application for a disregard, regardless of their circumstances?
I am not an expert on the way in which legal aid works, so I would not like to say, now, that there should be no element of means testing as there is for legal aid for other purposes. One of the Scottish Government documents that accompany the bill says that legal aid would be available if somebody needed to make an appeal to the sheriff court. However, I agree with the Law Society of Scotland that it would be helpful if legal aid were to be available for those who need it—at least for those who need advice on making the initial application.
I agree that, as the Scottish Government will process disregards, there will be someone there to give people support with filling out the form. However, there may be individuals and family members who will need emotional support. Should there be provision in the bill to ensure that, for example, third sector organisations are given the necessary funding to provide such emotional support?
That is a very good point, although I am not sure that it needs to be in the bill. The main organisation that provides direct front-line support to older LGBT people in Scotland is LGBT Health and Wellbeing. I am sure that it would want to make its helpline and other support available. It runs a couple of groups for older LGBT people. I am sure that it would want to extend such support to people in the situation that we are discussing and to their families. I would not like to speak on its behalf about whether it feels that the resources that it has to run that helpline and give that support are sufficient, although I am sure that it would always welcome more resource. As I have said, the numbers are small. However, it is important that help is available to people who need it.
The other issue that I want to ask you about is the attitude towards those in the LGBT community. It is depressing to see the recent reports, including from Stonewall, about the level of discrimination that people from the LGBT community still face. What impact will the bill have on that? Will it make the situation worse or better?
I think that the bill will make the situation better. I would not say that it will make a huge difference, but every step that the Government and this Parliament have made over the past 18 years—it is almost 19 years—has helped move forward public attitudes towards LGBT people.
We have seen in the Scottish social attitudes survey, and in the British social attitudes survey before that, a steady improvement in attitudes since the low point of the late 1980s. The improvement has particularly accelerated in Scotland since 2000, which I am absolutely sure is, in part, a result of the legislative steps that have been taken, starting with the repeal of section 28 and moving on to the introduction of civil partnership and gender recognition and all the other steps that have been taken up to and including equal marriage. I am quite sure that the bill—and the publicity around it—will be another factor that moves us in the right direction.
A lot of the change in public attitudes is to do with leadership and demonstration of the fact that—as the bill says—discrimination is considered to be unacceptable.
On the issue of publicity, you said in your answer to the convener that section 1 and the apology should continue to be made public. How would you like to see that being done?
The Government could do various press-related work when the bill is enacted. It will be important for the Government to publicise the system through its websites and so on. We will obviously publicise it, and I am sure that our colleagues and other LGBTI organisations will publicise it as widely as they can, too.
The message from the Government that the legislation has been introduced because the convictions are wrongful and discriminatory needs to be repeated at every possible opportunity through the Government’s press and media work at each stage of the passage of the bill.
Gail Ross (Caithness, Sutherland and Ross) (SNP)
Good morning, Tim. Thank you for your written evidence, which I found enlightening.
A small number of respondents said that they would prefer the disregard to be automatic, like the pardon will be, but we know that for legal reasons that will not be possible, because some of the convictions are for crimes that are still crimes today.
Last week, we heard about the difficulties of going through everyone’s records to find out about their convictions. Some crimes were recorded as breach of the peace, which raises difficulties. Are there men who would want that aspect of the past to be kept in the past and would not want it to be brought up again? Will you comment on those two issues?
Yes. We conducted a survey—which was a survey of all LGBT people, generally—about what we knew would be in the bill in early autumn last year. At that stage, we did not know everything about the bill. Of the 630 people who commented on the bill, 45 said that the disregard should be automatic. Out of those 630 people, only four said that they had convictions that they thought that the bill should cover, and of those four only two said that it was likely that they would apply for the disregard. Four out of 630 people is less than 1 per cent. That is not surprising, because, as we said in our written evidence, we think that the number of people who will qualify for the pardon who are still alive will be in a small number of hundreds, which is less than 1 per cent of the number of gay and bisexual men in Scotland. It is not surprising that the number who contacted us who have such convictions is so small. Of the four, two said that they would like the disregard to be automatic, if possible, so it is certainly an issue of importance to people.
As we said in our written evidence, we have thought hard about the issue—indeed, we have been talking to the Scottish Government about it since 2014—but we cannot see any way in which the disregard could be made automatic. That would be a huge task, costing millions of pounds and taking many years to do, and I do not think that it would be 100 per cent successful in identifying all the convictions anyway.
As you said, there will be men who simply want to put the whole thing behind them—men who have done their best to put it behind them for decades and who want to keep it in the past—so it is not necessarily the case that everybody would welcome being contacted proactively by the Government to be told that their conviction had been disregarded.
Taking all that into account, we think that the bill gets it right by providing that the disregard has to be applied for. Other countries have introduced legislation along such lines. In Germany, an application system will be used—the system is not yet in place, but the relevant bill specifies that disregards will have to be applied for. Indeed, an application will have to be made even for the pardon, so it is very welcome that, here, the pardon will be automatic, as I have said.
The system for the disregard in England and Wales has been in place for five years, and it seems to work pretty well from the point of application onwards, although the number of applications has been small. We have not had negative feedback about the way in which the system works—I am sure that Stonewall UK will talk to you about that.
We have heard about how having such a conviction on their protecting vulnerable groups disclosure has affected people who want to work with what we would class as vulnerable groups. Should the bill contain a provision that would automatically wipe reference to all such convictions from PVG disclosures?
The way that I interpret the bill is that it does that, even though that is not spelled out. It specifies that if someone successfully applies for the disregard, their conviction will be disregarded for all purposes. For all purposes, they will be treated as if their conviction never happened.
Making that real is a question of updating the conviction records, wherever they are held. The details of that process will be dealt with in regulations, and the issue is one for the detail of those regulations. Because they will be introduced under the negative procedure, it will be important that the Scottish Government consults on them and gets them right before it introduces them.
Under the bill, the regulations can cover any records that are held anywhere, and they will specify how those records are to be updated. The Government has explicitly stated that the records on which disclosures are based, which are Police Scotland records, will be covered by the removal process once a disregard is obtained. There could be records that might already have been generated from the police records, so there is a danger that such convictions could continue to show up in disclosure and PVG checks. That will need to be considered under the regulation procedure. We must ensure that all records are caught by the regulations.
However, there is a general provision in the bill that says that someone in such a position is to be treated as if the conviction had never happened. That means that, if something went wrong, they would always have the right to say, “Hang on—that’s wrong. In law, I must be treated as if the conviction had never happened, so you need to put this right.”
Can you expand on what records you are talking about and where they might be kept?
There will be records relating to the convictions at Police Scotland, in the Crown Office and Procurator Fiscal Service—because it would have dealt with the original prosecution—and in the Scottish Courts and Tribunals Service. As I understand it, when someone applies for a disclosure, Police Scotland processes the application, and it would rely on its own records. In one of the accompanying documents to the bill, the Government says that the police records in Scotland will be held on something called the criminal history system. However, for reasons that it does not explain—I am not sure what they are—it says that some of the records might also be held on the English police national computer system, and it acknowledges that a process might need to be put in place to deal with those records.
I do not know where other records might be held, apart from the three places that I mentioned, but it is clear that the regulations need to be wide enough to cover anywhere where records are held that might be drawn into the disclosure process.
The regulation-making power will continue to exist, so if, in future, someone applies for the disregard and, for some reason, records do not disappear in the way that they are supposed to, it will be possible for the regulations to be updated to put that right.10:30
The disregard will remove information from official records but not historical records. What is your view on that?
The word “remove” should be in quotes. The disregard system is based closely on the system for England and Wales—the legislation is almost identical. England and Wales use the word “delete” in their legislation and, again, that should be in quotes. As section 10(4) of the bill says, the definition of “remove” in the regulations that specify how the disregard is to be done can mean annotating the records to make it absolutely clear that the information is not to be revealed.
The Government gives two reasons for that. One is that some of the records might be in a form that cannot be simply deleted, such as microfiche, and the other reason, which I think is valid, is that we do not want to delete the historical records. We do not want future historians to be unable to look back at records and write a book about the level of discrimination there was against men who had sexual relationships with other men, and they should be able to look at individual cases so that they can describe individual examples. That information needs to be available to historians without causing any detriment to the men who were in that situation and who are still alive. It will be important to get that balance right.
The regulations are key. When rules are introduced about how records should be annotated and what should happen to the records that are annotated, we need to be absolutely clear that, although the record is still there, it cannot be used in any way that causes detriment to the person who is still alive but it will still be available for the use of future historians.
Section 16 excludes records held at National Records of Scotland. I am not sure that that exclusion needs to be there, given that the removal process will be set out in regulations. The provision could probably have been included in the regulations.
I am not necessarily concerned that National Records of Scotland records are excluded as long as they are in a form that cannot be accessed by, say, a journalist or a member of the public to find out whether a living person received one of the convictions. That is an important point that the Scottish Government will need to address so that we can all have confidence that the removal process, including the way in which records at National Records of Scotland are kept and made accessible, ensures that people who are still alive and have these convictions cannot be subject to any detriment, if they have the disregard.
That is a helpful explanation. My initial view was that if a conviction is to be disregarded, it should be removed from every record, but if we look at that from the angle of rewriting history, I accept your point. That is helpful.
Jamie Greene (West Scotland) (Con)
I should probably start by declaring an interest as a founder and co-convener of the cross-party group on LGBTI+ issues, for which the Equality Network is the secretariat. If the convener will indulge me, I will place on the record my public thanks to Tim Hopkins and the Equality Network for their support for the cross-party group during the past 18 months, and specifically for updating us on the progress of the bill.
I have a couple of diverse questions. Perhaps they should have been addressed to the bill team, but I appreciate that Tim Hopkins has a lot of knowledge on the subject. Is it your understanding that the bill will retrospectively pardon all men who were convicted of age of consent offences in Scotland?
Yes, as long as what they were convicted of is no longer an offence. Prior to 1980, there was no age of consent for sex between men, which was a crime in all circumstances. Between 1980 and 1994, the age of consent was 21, and between 1994 and 2001 it was 18, while it was 16 for everybody else, including women who had sex with women.
Generally speaking, if someone was convicted of an age of consent offence with a person who was over 16, they will receive the pardon. The exception is that someone who was convicted of an offence with a person aged 16 or 17 and who was in a position of trust will not be pardoned, because that remains a crime. The general age of consent is now 16 for everybody regardless of gender mix, but it is 18 if the person who is being charged is in a position of trust over, in some sense, the other person.
That point is very pertinent to people such as me who were around during the period in which certain behaviour was illegal based on the age of consent. A small group of people fall into that anomaly. I appreciate that answer.
In your opening statement, you touched on some submissions that we have had from serving or ex-serving members of Her Majesty’s armed forces. Do you have any understanding of whether, given that those convictions or disciplinary measures pertain to the armed forces, those individuals are covered under the England and Wales act or whether they will be able to take advantage of the provisions in the Scottish bill? Whether or not those people were resident in Scotland, I presume that their convictions were not registered in Scottish courts.
How does the legislation affect their ability to ensure that any declarations of discharge or court martialling, for example, will not be required on current applications?
This is a slightly complex point. It was a crime for a man in the armed forces to engage in sexual activity with another man. That would normally have been prosecuted in a court martial under the armed forces legislation. That legislation extends to the whole of the United Kingdom, but it is based on English law. For example, someone would have been prosecuted for buggery, not sodomy, because English law underpins the armed forces legislation.
Pardons and disregards for such convictions are covered by the legislation that has already been passed at Westminster. That is the case even if the conviction happened in Scotland. As I understand it, if a man was convicted under the armed forces legislation of sexual activity with another man on, say, an armed forces base in Scotland, they would receive their pardon and disregard on application under the legislation for the rest of the UK.
Once that person receives their disregard, they should, according to the legislation for the rest of the UK, be treated as if the conviction never happened. That means that, if someone was dismissed from the armed forces purely as a result of the conviction—which was standard practice—they should not suffer any detriment in any circumstances because of that dismissal. That would include when applying for jobs now.
Unfortunately, the situation is a bit more complicated than that in practice, because it could be argued that men who were dismissed from the armed forces were dismissed not just on the basis of such a conviction but because they said that they were gay. In fact, many men who did not have such convictions were dismissed from the armed forces because they said that they were gay. Even if a man had such a conviction, if he also said in interview at the time that he was gay, it might be argued that he was dismissed for that reason, at least in part. Setting aside the conviction would not set aside, in any sense, the dismissal.
In addition, the person who submitted written evidence to the committee is a woman, and women were dismissed from the armed forces for exactly the same reason, even though they were not subject to court martial because their behaviour was not a criminal offence. That woman was interviewed in what sounds like a horrendous way—that was not unusual—and she said that she was a lesbian, then she was automatically dismissed. That is affecting her now because when people apply for certain posts—she mentions security posts, or at least security vetting for posts, here at the Scottish Parliament—they are asked whether they have been a member of the armed forces and whether they were dismissed. Then the whole story comes out.
The bill will not help with that. It will not help directly where somebody has been dismissed from the armed forces because of their sexual orientation, and the Westminster legislation that applies to court martials does not help, either. Other steps need to be taken.
My view is that, in theory at least, if someone who applies for a job somewhere is asked whether they were dismissed from the armed forces, that person says yes, and then, when they are asked for the circumstances, they say, “I was dismissed from the armed forces in 1991 because I said I was a lesbian,” and the prospective employer treats them less favourably because of that—they do not give them the job, for example—the employer is probably breaching the Equality Act 2010, because they will be discriminating against that person. That may be on the ground of dismissal from the armed forces, but if the person was dismissed because they were a lesbian, that is indirect discrimination. If it is not direct discrimination, it is certainly indirect discrimination. The Equality Act 2010 means that no employer should be discriminating against somebody because of that record.
However, there are practical steps that could be taken by employers, including the Scottish Parliament, to put that right. For example, the person who submitted written evidence suggests that, rather than just asking whether someone has been dismissed from the armed forces, the Scottish Parliament could specifically annotate that question to say, “If you were dismissed on the basis of your sexual orientation, you do not have to answer this question”.
The bill does not deal with the issue. It is a reserved issue, so it is not something that the Scottish Parliament can deal with. The rest of the UK legislation from Westminster that gives pardons and disregards does not deal with it directly and probably does not help very much. It certainly does not help women in that circumstance. However, as I said, it is already the case that the Equality Act 2010 applies and should protect people from discrimination based on such history.
Thank you. That was a very comprehensive and helpful answer. It has flagged up a group of people who will not benefit in any sense from either the English and Welsh legislation or the Scottish legislation. Again, I declare an interest in that I have a number of close and dear friends who have been affected by the issue.
I appreciate what you say about guidance for employers but, obviously, that would not be statutory. Is there any room for manoeuvre in the devolved or reserved setting to enhance the bill or other legislation to make it easier for those who were dismissed from the armed forces for being gay to, in effect, wipe their slate clean, too? It seems like it might be a missed opportunity.
Certainly that is a possibility. I think that it would be a reserved matter, but it could be possible to pass legislation at Westminster that would direct the armed forces to amend or annotate their records and issue letters to people who were dismissed on that basis to apologise and make it clear that they would not be dismissed now and that the policy has changed. That legislation could make it clear that people should not suffer any detriment on that basis.
Another practical step that could be taken relates to something that is always a big hurdle for people to get over. If somebody came to us who had run into practical difficulties because they had been dismissed from the armed forces on that basis, say in the 1990s, and it was affecting their prospects of finding jobs, we would say that a possible way forward is to consider taking a case under the Equality Act 2010. Of course, that is a big hurdle for people to get over.
I have a final question on a separate issue. My understanding is that the disregard process can be done only by the individual who was convicted. I have a concern that there is no opportunity for the living relatives, family members or partners of people who are deceased to apply for a disregard on behalf of the deceased person. Does that mean that, although those people will have been pardoned in the grand scheme of things, those records and convictions will still exist? That may affect people’s future prosperity. Should that have been addressed in the legislation or is it practically impossible to implement that at this late stage?
In all cases, the conviction will still exist. The bill will not erase the convictions from history. The disregard says that, for all practical purposes, the convictions are to be treated as if they never happened.
It is a very important question. Whether the practical recompense that the bill potentially provides to anybody who receives the automatic symbolic pardon should be extended to people who are no longer living depends on whether one thinks that it would have a practical effect on people who are no longer living.
The stated purpose of the disregard is, at least primarily, to deal with the issue of disclosures. Certainly, for the people who have contacted us to say that they want to apply for the disregard—only three in total have done that and only two of them have given us details—it is clear that the reason why they want the disregard is exactly because of the disclosure problem. Clearly, that is not a problem for people who are no longer alive.10:45
The answer to the question depends on exactly what practical recompense the bill gives to people who apply. In Germany, the legislation is rather different. People have to apply and, if the application is successful, they get two things, at least—a certificate of pardon/disregard and financial compensation. As far as I know, Germany is the only country in the world that offers to provide people with financial compensation. In Germany, applications are open to the families of people with such convictions who are no longer living. My understanding is that the families do not necessarily receive the financial compensation in that case, but that they receive the certificate.
The question of financial compensation is a different one. However, that illustrates that whether it makes sense to open to relatives of those who are no longer living the practical recompense that is done by application—it has to be done by application—depends on what the practical recompense does and what its purpose is. If the purpose is focused on disclosures and on the person not suffering detriment, for example when they apply for a job—those things are covered in the bill—it might not be necessary to open it to the families of people who are no longer living. That is probably not necessary. However, if it was extended, for example to provide some kind of certification, as in Germany, I think that there would be a case for opening it up to the families of those who are no longer alive.
I have a quick supplementary question in which I want to go back to the armed forces section of the response that you gave us. What is the impact on someone if they have a dishonourable discharge on their record or if they were dismissed from the armed forces? What effect does that have on their pension rights, honours and medals, and their ability to wear their uniform and to participate in veterans’ organisations? Have you come across any situations in which that has been the issue?
I am afraid that I do not know what the effects are on those things, but I could perhaps add one more related point. You mentioned dishonourable discharge, which is what it is called in the United States, I think. A woman who was discharged from one of the United States armed forces many decades ago has just won the right to have her dishonourable discharge converted into an honourable discharge. She was going through the court process, but she received that news before it came to court. That is the kind of practical step that the armed forces could take in this country. However, I think that that is a reserved matter.
I have a brief follow-up to the question that Jamie Greene asked you about family members applying for a disregard. You mentioned in your opening remarks that some individuals have taken their own lives because of a conviction. In those circumstances, should the question of a family member applying for a disregard be treated differently?
Again, it would depend on what the disregard provides. If the disregard is focused on issues such as disclosure and not suffering detriment when applying for jobs, I cannot see that it would make much difference. We do not know of any cases in which that has happened, but it is very likely that it has, which would be a dreadful situation for the families of the people in those circumstances. However, given what the bill provides through the disregard at the moment, I cannot see a direct reason why people should be treated differently.
Alex Cole-Hamilton (Edinburgh Western) (LD)
Good morning, Tim. I have hung on your every word today; it has been a fascinating evidence session and I could listen to you all afternoon.
I would like to explore a couple of issues. First, I was not aware that Germany provides financial compensation. At what magnitude is that compensation issued? I ask that because we understand from briefings prior to this meeting that we are not talking about a huge number of men here. If the English experience is anything to go by, we are probably talking about 50 to 100 men—tops—in Scotland, and I do not think that it would break the bank to offer them Scottish Government-funded compensation. What sort of level of compensation is there in Germany, and would that be welcome in Scotland?
The legislation in Germany, as I understand it, is not yet in effect. It was a Government bill and was passed by the Bundestag, which is the lower house, last June. I do not know what has happened in the upper house, although the upper house had certainly indicated that it would pass the bill, but there were elections in Germany in the autumn and that may have held up the process. It was said in the German media at the time, last summer, that it would take five years to put the process fully into place.
To answer your question, the level of compensation is a flat rate of €3,000 to everybody who has a relevant conviction and successfully applies, taking into account the fact that it does not cover convictions for things that are still crimes, and then €1,500 on top for every year spent in prison. Looking at the sentencing of those offences in Germany, I think that it is clear that it was harsher than here. In fact, the average sentence for people convicted under paragraph 175, which was the German equivalent of what we call homosexual offences, was two years in prison, whereas the average here, even in the 1950s, was a period of months in prison. The German Government has apparently set aside €30 million, which is an average of €6,000 per person—on the basis of a €3,000 flat fee plus €1,500 a year for an average of two years in prison, which accounts for the other €3,000—for each of the 5,000 people who it is expected may successfully apply through that process.
Is that the model that we should adopt here in Scotland?
The first thing to say is that, of the four men who responded to our survey last autumn, in which we invited people to say what they felt was needed in addition to what the bill was already offering, none raised the question of compensation. Eight people in total, out of the 736 who responded to the survey, suggested compensation, but none of those eight was one of the four men who had convictions. They raised other issues, but not the issue of compensation.
We base our policy on what we hope is a consensus among LGBTI people. We do a lot of consultation, which is why we do these surveys. The reason why we have not proactively been calling for compensation is, in part, that the large majority of people did not raise it as an issue. Having said that, I do not want to speak on behalf of the men—there may be between 100 and 200 such men—who are living with those convictions. It is really up to them, and I hope that the committee will have the opportunity to speak to, or at least to take evidence from, some men in that situation.
That is really interesting. I am struck by the element of human decency and by the fact that a lot of the men who have corresponded with you on the issue did not think about money, because they just want justice to be done, but compensation might still be the right thing to do, even if they have not thought about money and do not want to be seen as looking for an easy payout. Notwithstanding the time spent in prison, and it is great to hear that Germany is recognising that financially, such sentences may have had a significant impact on people’s careers in terms of lost earnings and lost promotions, some of which might be quite easy for individuals to evidence with legal support. Should the committee actively consider compensation? The men whom the LGBTI community represents, and those who have already come forward to talk to you about it, are not necessarily looking for compensation, but it might still be the right thing to do. How do you feel about that?
One important point is that, whatever the level of compensation, it is “compensation” in inverted commas, because it is not going to make up for the damage. I agree that there will probably be men who can point to the effect on their careers and may very well be able to quantify that, and the value of lost earnings is likely to be tens of thousands of pounds or more. I should have said that the German legislation has been criticised by LGBT organisations in Germany on the basis that the compensation is not enough. A sum of €1,500 to compensate for having to spend a year in prison is not compensation in the normal sense of the word; it is a symbolic payment. Any practical level of compensation is going to be symbolic, even in Germany, which is the only country that has so far moved to introduce it. However, concrete symbols are important and, as I say, it is the voices of those who are in that situation which need to be heard.
I have one final point. We estimate that the number of men still living with those convictions is in the small number of 100s, by which I mean that it could be as low as 100 to 200. The Government estimates that it might approve 15 applications for disregards in the first five years, which is one tenth of the number in England and Wales. That means that most people will not be applying for the disregard, so there is a question about whether compensation should be given only to those who apply for the disregard.
There are a number of reasons why somebody might not apply for the disregard; for example, because emotionally they do not want to handle the hassle and reopen the whole question. That would mean that they would not get the compensation, because there would be no way of compensating them. There is a question of fairness there that needs to be thought about.
It is an interesting proposition. It might generate more interest in application for the disregard, but it is something for the committee to consider.
I have a final question, which is about whether there is a potential wrinkle for those men who were convicted in other jurisdictions—overseas and in other countries—of a crime that is no longer illegal. Although annotation, removal or redaction would be impossible from criminal records that are held overseas, we can still disregard such convictions in the way that we are doing for everybody else here. Is that something that you have considered and how might we reflect it, for example, in the regulations underpinning the bill?
To be honest, we have not considered that. It is a very interesting question. I do not know whether, when someone applies for an enhanced disclosure, the police include not just conviction records but any other material that they think is germane to the application, and whether convictions in other countries ever get reflected through enhanced disclosures. Potentially they might, if the police are aware of them. I certainly agree that there is the potential to address that.
There is another way of addressing it, when it comes to people applying for jobs and so on, because the provisions of the Equality Act 2010 would apply. If someone was disadvantaged because of a conviction in another country for something that is no longer a crime there and would not be a crime here but is essentially based on their sexual orientation, that would potentially be unlawful under the 2010 act.
In the case of applying for a job, if the application asks applicants for criminal records and to disclose any information, they might out of honesty feel obliged to include an offence that they had picked up in France in the 1960s or something and not know that they did not have to. Perhaps we need to reflect that in guidance and the publicity around the passing of the bill. Would you agree?
Yes. It is unlawful for a prospective employer to ask people about convictions that are spent, except in the context of enhanced disclosures, and it is only lawful to apply for those for certain jobs. It is good practice to say specifically on job application forms: “Have you any past convictions? Do not mention any convictions that are spent.” The rules apply only to convictions within the UK, but that statement is at least a pointer that old convictions in another country do not need to be mentioned.
There are no other questions, so does Tim Hopkins have any final comments? Have we missed anything?
We have covered a wide range of material. I will just check whether there was anything else. I mentioned the situation in Germany; perhaps it is also worth mentioning that there are a number of other countries that are currently putting through legislation along these lines, including Canada, New Zealand and at least one Australian state. If we did not do this, Scotland would be falling well behind. It is something that shows that, along with those countries, Scotland is a country that is no longer willing to accept discrimination against LGBTI people. As I say, I hope very much that the committee will support the bill.
That is a good place to finish our deliberations. We are very grateful to Tim Hopkins for coming along this morning. We will continue our deliberations over the next few weeks, so if you go away and think of something that you missed, please let us know, because we will still consider it up until the point that we run out of time.
I will certainly do that. Thank you very much.10:59 Meeting continued in private until 11:29.
1 February 2018
Second meeting transcript
The Convener (Christina McKelvie)
Good morning and welcome to the fourth meeting in 2018 of the Equalities and Human Rights Committee. I make the usual request for electronic devices to be switched to silent mode and mobile phones to be taken off the table.
We have apologies from our colleague David Torrance. Linda Fabiani, who is a substitute member, has joined us. Welcome, Linda.
Agenda item 1 is continuation of our scrutiny of the Historical Sexual Offences (Pardons and Disregards) (Scotland) Bill at stage 1. We have six witnesses, so it is quite a big panel. I thank the witnesses for the written evidence that they have given us. We look forward to hearing from you. With us are Anne Marie Hicks from the Crown Office and Procurator Fiscal Service, Gillian Mawdsley of the policy executive team of the Law Society of Scotland, Detective Superintendent Stuart Houston of the specialist crime division of Police Scotland, Raymond McIntyre, who is a criminal records manager with Police Scotland, and Paul Twocock, who is the director of campaigns, policy and research for Stonewall UK. I hope that we will be joined soon by Derek Ogg, who has been held up.
There is not time for all of you to make an opening statement, so I will open with a general question. What are your thoughts on the general principles of the bill and any key aspects that we should scrutinise?
Paul Twocock (Stonewall UK)
I thank the committee for inviting me to give evidence.
In short, Stonewall UK warmly welcomes the Scottish Government’s bill and the approach that the Scottish Government is taking on it. We might go into more detail later about some of the differences between the approaches in Scotland and England and Wales.
Our two objectives for the legislation in England and Wales were to have an automatic pardon for people who are living and people who have died, and to widen the scope of the disregard scheme. As members know from evidence last week, we failed to achieve the first objective in England and Wales, but we were really pleased to have worked on a cross-party basis with Baroness Williams, who is the Government’s spokesperson in the House of Lords, Lord Cashman, Lord Sharkey and others to achieve a commitment to the second objective. I would be really pleased to talk a bit about work that has been going on in the Home Office to widen the scope of the scheme. It is really important that the Scottish bill is going through now, because it gives the Home Office an opportunity to ensure that there is parity on the issue across the United Kingdom, particularly in relation to the disregard scheme.
Raymond McIntyre (Police Scotland)
Good morning. I am here on behalf of national systems support as criminal records manager in that team. We are here to support the bill and to ensure that anything that needs to be done with police records technically and practically can be achieved. I will leave it to my colleague Stuart Houston to explain the wider policy and support from Police Scotland that there will be.
Detective Superintendent Stuart Houston (Police Scotland)
Good morning. It is essential with the legislation that the police are able to recognise that people have had convictions for offences that are now no longer relevant or competent. We welcome that opportunity. People out there have been discriminated against and barred from certain occupations or even voluntary organisations because of a conviction that goes back a number of years. I am really glad that we have been invited to take part in this discussion and to talk about how we can make the process as efficient as we can. Raymond McIntyre touched on the fact that a lot of the records are held by Police Scotland. We want to ensure that we can do things quickly and in the most efficient way possible.
The Law Society of Scotland gave us a pretty detailed submission, for which we are grateful. That submission went into aspects of the use of language. In Gillian Mawdsley’s opening remarks on the general principles of the bill, will she tell us a wee bit about why the change in the use of language is important?
Gillian Mawdsley (Law Society of Scotland)
Yes. In our submission, we said:
“The Bill employs neutral terminology similar to that employed by the Sexual Offences (Scotland) Act 2009”.
We think that the use of language is important. We recognised that the bill
“deliberately does not apply to women”,
and we addressed that. As we said,
“Language used in the past to refer to convictions for same sex activities has no place now in Scotland as the terms were both offensive and discriminatory.”
That is why we welcomed in particular the drafting of the legislative intent behind the bill.
The Law Society of Scotland is happy to go over any points in our submission. In our role of wanting to achieve a fairer and more just society, we obviously welcome the premise of the bill and very much support it.
Anne Marie Hicks (Crown Office and Procurator Fiscal Service)
Speaking as the last of the witnesses, I endorse everything that has been said. The Historical Sexual Offences (Pardons and Disregards) (Scotland) Bill is an important piece of equality legislation that will help to modernise our country and bring us to where we should be. It is really important that its purpose is set out firmly and squarely in section 1, which acknowledges
“the wrongfulness and discriminatory effect of past convictions”.
The Crown Office warmly welcomes the bill.
I thank you all very much for your opening remarks, which put the bill into context for us.
Alex Cole-Hamilton (Edinburgh Western) (LD)
Good morning, everyone, and thank you for coming. I agree that a historic and important bill has been entrusted to the committee.
Last week, we heard evidence on the bill from Tim Hopkins, who is the chief executive of the Equality Network. He made a very eloquent pitch on the importance of righting historical wrongs, and he gave us the interesting international example of Germany, where that has been done already. It offers a symbolic payment of compensation to men who come forward to apply for a pardon and a disregard. They also receive a certificate. Germany is the only country that we know of that is doing that. That symbolism has not been actively called for by equalities or lesbian, gay, bisexual and transgender rights organisations, partly because the people to whom the bill applies are not thinking about money; they just want to see justice served and a historical wrong righted. However, perhaps giving compensation is the right thing to do. Should we consider that being part of the bill? I will start with Paul Twocock from Stonewall UK, particularly because it is a campaigning organisation.
Our mind is with Tim Hopkins on that issue, which he wrote about briefly in his submission. The Equality Network did some research with gay and bi men in Scotland, in which a small number of people thought that compensation should be on the table.
The wider point is that all sorts of historic wrongs have been committed in the past against the wider LGBT+ communities. Those historic sexual offences convictions were particularly vicious, but there was discrimination throughout life. The question would be where compensation should lie for any number of LGBT people who experienced discrimination in the past. It would be unfair to compensate one part of the community that experienced one type of discrimination but not look at compensation for other parts of the community, so it is probably not the right route to go down.
People in Scotland have received the apology from the First Minister; it was very important for the people who were affected by those persecutory offences to hear directly from the First Minister. The legislation is clear that those convictions of gay and bi men should never have happened in the past, and that is the most important thing.
Anne Marie Hicks
I endorse what Paul Twocock has said about the issue of fairness. I was interested to read Tim Hopkins’s evidence, which made a lot of compelling points. The issue is about fairness for people who may not have been prosecuted but whose lives may have had to change—by not doing certain things or not living their life in as normal a way as they might have wanted—because of the law. People who were prosecuted were not the only ones to be subjected to discrimination.
The issue is also difficult because some people may have died and some might not take advantage of the scheme because they are not aware of it. Compensation may end up being for only a small proportion of people, for the reasons that Paul Twocock has given.
I will follow up with another of my lines of questioning from last week’s meeting, which is about the reality that some men were prosecuted in jurisdictions outside the United Kingdom. They live in the UK but might still have a criminal record for a crime that is no longer illegal. What would be the process by which we could offer a pardon and disregard to people who are in that category?
Detective Superintendent Houston
Raymond McIntyre’s role as record manager means that he may have knowledge of how convictions overseas are recorded, but we would have to see what is recorded and held in Scotland about convictions that are outwith our jurisdiction.
Overseas records would only come to light if active requests were made through the courts, fiscals or the police to bring that information to the UK. In the UK, information is available through the police national computer, which is the central repository for England and Wales. Any of Scotland’s information that is recorded on the police national computer is linked directly to the criminal records in Scotland, and we manage those records to the same extent that we manage any information on the criminal history system. The police forces in England and Wales manage their information under the disregard scheme that is in place in England and Wales. Does that cover your question?
That is very helpful—thank you.
Mary Fee (West Scotland) (Lab)
Good morning, panel. I will start with a question to Paul Twocock, because I am particularly interested in the impact of the legislation in England and Wales. How was it publicised, what impact has it had on the LGBT community, and has it had any impact on attitudes towards the LGBT community? I do not need to tell him that there has been long-standing discrimination against the community. Has the legislation helped to reduce that?09:45
The real impact of the legislation is in indicating the progress that we have made. It will confirm, particularly for those who experienced the sharp end of those offences, that they should never have been prosecuted and that the Government acknowledges that it was wrong—that the justice system was wrong to pursue them in the way that it did. That will impact a relatively small group of people now, but it is so important for those individuals, and for the wider LGBT community, as another marker of the progress that has been made on attitudes. I will not expand on all the many other areas in which we still need to go further.
One of the key lessons that I would pick out to be learned from England and Wales is about the confusion between a pardon and a disregard. That confusion continues in England and Wales and it is a major problem in relation to increasing the uptake of the disregard scheme by people who would be eligible to have their crimes disregarded.
Despite the best efforts of Stonewall and other LGBT organisations to explain that difference, people in the LGBT community have not understood it. When people hear the word “pardon”, they often think that it means that the crime has been deleted. They do not understand that, if they have a historical sexual offence, it will come up on a barring-scheme or criminal-records report if they apply for a job where that is relevant, so they will still feel the impact.
Because the Scottish legislation provides an automatic pardon, I would say that it provides a better foundation for explaining that difference. It says clearly that the Government and the justice system were wrong to prosecute people in that way and that is why they are receiving a pardon. However, the records still exist and, if the person wishes the record to be removed so that it does not come up during any barring-scheme check, they should apply for a disregard, which will be processed in the most efficient way possible.
It is important to get that message across. The Scottish Government will need to invest resources and time to publicise it and to focus on that difference, particularly with LGBT communities. It should work with LGBT organisations.
Should it be just the Scottish Government that campaigns or should LGBT organisations campaign as well? Should there be guidance along with the bill to help with that?
Absolutely—it is a partnership. It is important that there is a partnership, because the LGBT organisations have access to those networks. It will largely be a relatively older LGBT population who will be eligible for the disregards, although there are instances of the offences being used right up until repeal in 2003 in the UK so, actually, the population that could be eligible covers quite a wide range of ages. It is important that there is a partnership and that the LGBT organisations are not just relied on to do it. The Scottish Government should use the opportunity of passing the legislation as a point for publicity, and it should think about how to reach all the gay and bi men who could be eligible for a disregard.
Would it be a short campaign or a long one, to keep pushing home the message that people can apply?
Realistically, it is important for it to be a well resourced and thought-out short campaign. It is important that there are resources, which is perhaps where the partnership with LGBT organisations can be picked up, so that the LGBT information services have the right guidance for people who inquire about the disregard scheme later on.
The reality is that there is so much information and noise in society at the moment. If the right resources and thought processes are put into ensuring that we use the opportunity of passing the legislation, that might do the trick and we would perhaps then have a slightly better uptake than we have had so far in England and Wales.
Last week, we asked Tim Hopkins about the impact of applying for a disregard. It can be traumatic, as the person relives things that have happened. It is traumatic not only for the person who is involved but for their family. In England and Wales, was any emotional and psychological support made available to people to help them through the process? Should we consider doing that in Scotland?
Frankly, there has been no structured or funded emotional support for people who have applied for a disregard, apart from that offered through the normal services of LGBT organisations. For instance, when the Protection of Freedoms Act 2012 passed, we developed guidance that we published on our website, we received inquiries through our telephone information service and we provided signposting to other services, including counselling services, that were available to people. Along with organisations such as the LGBT Foundation in Manchester, we provided that signposting through the normal core information work that we do.
Linda Fabiani (East Kilbride) (SNP)
On the specific point that Mary Fee raised, there will obviously be times when great sensitivity is required. How can we ensure confidentiality throughout the process?
That is probably an issue for the committee to respond to when it is thinking about the process. Ensuring confidentiality is of absolute importance and is, through the work that it has been doing since 2012, something that the team in the Home Office has a view on and has regard to.
An interesting aspect of confidentiality that the committee should perhaps consider is that there are individuals who have been prosecuted under offences in the past who have since changed their gender identity. There is a real issue about exposure of that transition in how the process will work: we should give due regard to how the process deals with such cases.
There is an issue about how records are sourced, where they are kept and how they are used in the disregard process. Maybe Stuart Houston could give us some insight on that.
Detective Superintendent Houston
It is crucial that we ensure that the application process, if application is to the Scottish Government first, is a secure network that allows that to feed into the criminal records system, which is held by Police Scotland. It is good that the criminal records system is contained within one department that has access to criminal records: a person’s criminal record is confidential material. We need to ensure that the process is robust, and that we say how the checks are done and what information we still hold. We need to ensure that we have that process in place at the right time.
I come back to my first point: there should be a clear, efficient and quick process when someone comes in. The issue is then about trying to find any historical information that is held, so we need to ensure that we can give the feedback and information that relate to an individual conviction.
In respect of the language on disregard in the bill and whether a criminal offence is “removed” or “deleted”, I think that those terms are interchangeable and that there is a difference between the UK legislation and the bill.
We heard a really interesting argument from Tim Hopkins last week about the importance of not deleting criminal records, although they can be disregarded or disapplied so that they do not appear on things such as protecting vulnerable groups checks. The physical and tangible record should be kept intact, because we do not want to preside unwittingly over some kind of revisionist history with the result that, generations from now, people will look at the criminal record and not find this stain on our conscience.
Where does the panel sit on that issue? Should we be actively removing records in their entirety, or should we retain the historical record but disapply them in all other respects? Perhaps, for a change, we can start with Stuart Houston instead of Paul Twocock.
Detective Superintendent Houston
Raymond McIntyre, as the records manager, might be in a position to answer that question.
Your point about revisionist history is interesting. To my knowledge, the criminal history system is not the criminal records archive for Scotland; that tends to be the court procedures, which are not used in vetting and/or barring people. In practical terms, to remove that information from the criminal history system would be to remove information that is unnecessary for police officers and unwanted by disclosure agencies. There are places from which information can be removed without damaging historical integrity, but there are other places from which—Alex Cole-Hamilton is right to point this out—the record of such activities and information about the existence of such legislation and persecution of people under it would not be removed. It is all about striking a balance; we need to do some analysis on how we will apply a disregard scheme and what we will do when we make such decisions under it.
Because we have moved on to records, I will bring in Gail Ross, who last week asked about cross-border and national police records.
Gail Ross (Caithness, Sutherland and Ross) (SNP)
Good morning, panel, and thank you for coming in and giving evidence.
I will follow on from a couple of points that have been made. In his written submission that we received for last week’s meeting, Tim Hopkins said that a small percentage of people would like disregards—as pardons will be—to be automatic, but we have heard various reasons why that is not possible. I wonder whether Police Scotland representatives can explain the difficulties with making disregards automatic.
Detective Superintendent Houston
As we have pointed out in our written submission, we need to look at applications case by case, because there will be convictions still on people’s records for activity that might still be illegal. On consent, for example, prior to 1980 or 1981 recording of sodomy made no distinction between consensual and non-consensual activity. It would therefore be really difficult just to strike such a conviction off and to say that what happened was consensual.
There are other circumstances to take into account. For example, was there coercion? Was there an imbalance of power or what we would now call a breach of trust? Again, we need to look at such issues in order to make sure that a disregard would be the correct course of action—in particular, with regard to common-law issues. For statutory offences, the position is probably more clear cut and easier to understand—with, for example, the age of consent having gone from 21 to 18 and then to 16—but I have highlighted that we need to make sure that there is, in an offence, no other behaviour that might still be termed “criminal”.
Stuart Houston is absolutely right. This is about context and circumstances, and we need to get access to whatever information still exists about cases. Exceptional circumstances would include coercion or age factors that would mean that the behaviour in question is still criminal but, at the other end of the scale, there might be clear evidence that a case was nothing more than a person being persecuted because of their sexuality. Our target is to have a disregard scheme that enables us to use information as efficiently and effectively as possible.
The idea of an automatic disregard scheme and dealing with everything in one fell swoop is challenging. The other end of that scale is to say that we will deal with cases only on a come-to-notice basis, which would be by application. Those are the two ends of the scale, but there might be a process that could be practically achieved that falls somewhere in the middle and would wipe away a substantial amount of information that we know was based on persecution, but would retain some of the stuff that needs a little more investigation and a bit more context.10:00
Paul Twocock used the word “partnership”; it is about getting the right people involved in deciding how we structure the process and go about it. In our written submission, Police Scotland has suggested that some work can be done around being more effective, efficient and consistent in how the scheme will be applied.
Just for the record, if the scheme comes to pass, is publicised and a gentleman out there wants to apply, how will the process work? How will he go about it, where will he get the form, where will the form go, how will the record be searched and how will information be taken off the record? Will you give us a step-by-step explanation of how the scheme will work?
Detective Superintendent Houston
I can cover the first part of that. Part of the discussion that we had with the Scottish Government team was about who would put out the application form. As you can see from the written submission, there was originally a suggestion that it should be done by the police, which we feel is not correct. We should not be the decision maker; we do not hold all the information, which is a big part of the process.
We think that the application process should be through the Scottish Government, with applications being passed in a secure and confidential format to the police to allow us to do background checks from the records that are held by Police Scotland and any partner agency that might have information. That would bring in the Crown Office and Procurator Fiscal Service and, possibly, the Scottish Courts and Tribunals Service, which might hold information. There needs to be a wider aspect to it.
On the application process, I fully endorse what has been said about making sure that there is good guidance—I assume that there will be guidance, because it has been well trailed. It must be easy for people to apply, but I envisage that, on occasion, there will be a role for solicitors. Therefore, it is incredibly important that people know that they can get advice on the process. I hope that the process will be easy enough that people will not necessarily require advice, but that is why we have reflected on the question of legal aid or legal advice and assistance. It is an important point because people will have to take active steps to get something and the Government must recognise that those people will be required to do that.
In talking about needing support, I am also thinking of more vulnerable people, because a number of people who will be affected could well fall into the “vulnerable” and “supported” categories. As well as partnerships, some third sector organisations that work with people with learning difficulties have a support role. You have talked about confidentiality, as has the legal profession, with regard to supporting people, where that is required.
I have a small final question for Paul Twocock on automatic disregard. The committee spoke to Tim Hopkins last week about how there will probably be a percentage of men who have such things in their past and who want to keep them in the past. Will you comment on that?
That is true and it is why I warmly welcome the automatic pardon. It is an important symbolic acknowledgement for those who do not wish to rake up the past or to go back to difficult times in their lives. It might well be the case that they are not affected by a continuing impact of having that criminal record in existence so, for them, there is no reason to apply for a disregard. That is absolutely fine and is the right thing to do for them, which is why the automatic pardon is so important.
Jamie Greene (West Scotland) (Con)
Good morning, panel. I apologise for missing the opening statements, if there were any.
Before I ask a question of my own, I want to check whether my reading of a comment that Mr McIntyre made is correct. At the moment in the rest of the UK, people must apply proactively for the disregard, which is what is proposed here. At the other end of the spectrum is automatic disregard, which we have heard in evidence might be complicated; indeed, it might even be viewed as unwarranted by people who would stand to benefit from it. Did you suggest that there could be, somewhere in the middle, room for movement in Scotland, because the bill has not been passed? There could be a semi-automatic disregard process for certain types of offences, such as some statutory offences in which the situation is clear cut, as opposed to more complex cases in which multiple offences had been committed. In such cases, an automatic disregard would be more difficult. In addition, as Detective Superintendent Houston pointed out, there are cases involving common-law offences that are more complex.
Are we missing a trick in assuming that a proactive process, whereby people must apply for the disregard, is the only option that is available?
That was a fair paraphrasing of what I am suggesting. We live in modern times and have access to modern technology, so there might be opportunities for us to analyse data in order to find information that should not be there and which we could get rid of. I am saying as a records manager that those opportunities exist.
I would welcome a partnership approach being taken, which would involve asking people about the art of the possible and how we can best go about making the blanket pardon and the disregard scheme as efficient and effective as possible. We also want to make the scheme as fair as possible for everyone: we do not want to force people to apply, but we want to give people who are worried about the issue the opportunity to confirm whether information has been removed.
Jamie Greene’s summation was correct: there is a middle ground.
I have a follow-up question for Paul Twocock. Will such a system pose problems? Will people who fall under an automatic disregard for certain types of offences want to be notified that those offences have been disregarded, or would that create a new set of problems, with people getting letters through the door that they do not expect or even want?
I have not considered the issue, because that was not the approach that was taken in England and Wales, and there was no suggestion that such an alternative approach might be feasible. I think that that is a live issue. As Gail Ross said, there are people who would rather keep in the past what was for them a difficult time. For someone to receive a letter from Police Scotland or the Scottish Government saying that their crime had been disregarded might unnecessarily create an emotional issue. It would be necessary to consult the LGBT community on how an alternative approach would work and whether it would involve any proactive contact.
I will move on from that interesting third option to the question that I originally wanted to ask. Last week, I asked a question about people who serve in the armed forces or have done so in the past and who—if I can use this phrase—“committed a crime” in Scotland and were disciplined or prosecuted under English and Welsh law because they were a member of the forces, even though they were in Scotland. I would also like to know about the position of members of the armed forces who currently reside in Scotland or who have retired and now live in Scotland. Will they be able to take advantage of the Scottish process, or would they—because of their status—have to pursue the matter using the system in England and Wales?
Anne Marie Hicks
The bill sets out the offences to which the process would apply, and it includes provision for the Scottish ministers to regulate for other offences to be covered, should such a need come to light. I do not think that that would cover anything that had occurred in another jurisdiction. If an offence was committed while someone was in the armed forces, I think that it would be a UK conviction, so the pardon scheme in England and Wales would have to be used.
I am open to being corrected on the legislative instrument, but from a Scottish records perspective, the Army Act 1955 would encompass any action that had been taken against people in such circumstances, so it would be a matter of checking whether reference to that act was recorded in Police Scotland’s records, and of looking at the provenance of the relevant records to see whether they came from a prosecution in England in Wales, from a court martial or from a case that was heard in a Scottish court. It would be a question of challenging the records that are held in Scotland and which would therefore come under the Scottish legislation.
It is worth pointing out that people were dismissed from the armed forces not for committing an offence that would be illegal in the civil world but simply for being LGBT. It appears that the bill does not go any way towards pardoning those people or disregarding the disciplinary actions against them—nor does the legislation in England and Wales. Does anyone have any further views on that?
Anne Marie Hicks
The purpose of the bill is to deal with previous convictions. I go back to Paul Twocock’s opening remarks on the fact that there have been many discriminatory actions towards LGBTI over decades and not just in the armed forces. Many people will have experienced discrimination in the workplace—not getting jobs, being dismissed or experiencing harassment and discrimination. Wider discriminatory wrongs have occurred. The bill’s purpose is quite specific in relating to previous convictions and it would be widening its scope to bring in some of those other aspects.
I endorse that. The way in which men in the armed forces were dealt with for being gay or bi is an important issue, and there has been no clear acknowledgement by the state of that, but it is a separate issue and it would muddy the waters if it were brought into the scope of the bill. However, the issue still needs to be addressed.
Stonewall UK works very closely with all the armed forces to improve LGBT inclusion. They have made huge progress and now feature in our top 100 employers. I am sure that the armed forces would collaborate on any work in that area.
I have a couple of follow-up points. Gillian Mawdsley, your submission covers legal aid and you covered some aspects of that in answer to Gail Ross’s questions. Given that a relatively small number of men will go through the process of applying for a disregard and that we are righting a wrong to those individuals that should never have happened, should legal aid be automatic?
That is a very interesting question. We have thought about that because, as you say, it is about righting a wrong. It is a question for the Government. The process should be as simple as possible. No one here is canvassing for a complex system that necessarily requires legal intervention or support, but were someone to require it, they would be able to access civil advice and assistance in the initial process. If there were a process before the court, they would require representation, which means civil legal aid, and my understanding is that it would be subject to the usual legal aid tests of financial eligibility and so on.
Given that the First Minister has acknowledged that this is righting a wrong, the Government should perhaps address the issue. If we look back to the story of Alan Turing and the reason why we are doing this in the first place, it follows that we should ask why someone should be disadvantaged by getting something to which the state says that they are entitled. That is a matter for Parliament and the Government.
That is very interesting. Perhaps Paul Twocock could follow up on that. In England and Wales, were individuals who applied for the disregard given any financial support to go through the process?10:15
Not as far as I am aware, no.
That is interesting. The bill contains a larger number of historical sexual offences than the legislation in other parts of the UK does. The legislation here includes, for example, importuning. I know that in England and Wales, there is an order-making power that allows additional offences to be added. Do you think that we have the right list of offences in the bill, and is there any indication that additional offences will be included in England and Wales?
We have been working with the Home Office since the Policing and Crime Act 2017—which is where the legislation was placed—was passed. The team that works on the disregards scheme is working on that regulation at the moment. We have been providing some evidence in case law to demonstrate why other offences need to be included. That includes importuning or soliciting by men, which is the key offence, because that is where there have been the most rejections of disregard applications out of the ones that have come through in England and Wales since 2012.
The section 32 law was certainly used right up to 1995. A constituent of Matthew Pennycook MP had his application rejected just because it was not within the scope; his experience was similar to the ones that Tim Hopkins talked about last week. He essentially chatted up a plainclothes police officer in a sting in 1995 outside a bar in Soho and was persuaded to receive a caution, which is now a permanent sexual offence on the record. It is important that that offence and other offences be included, particularly those that are permanently on barring scheme records—sexual offences. There is a commitment from the Government to do that. It is clear that it will include section 32 on importuning and we have been providing case law, particularly for armed forces offences that are not included at the moment, such as “disgraceful conduct” and “scandalous conduct”. We have made representations that they need to be included.
As I said in my opening statement, it is useful for that process in England and Wales that the Scottish bill is going through now with such a wide scope. What is very helpful in the Scottish bill is the very clear definition of the group of offences that this applies to—the definition of sexual activity—which was missing in the legislation in England and Wales.
The England and Wales process, because it is built on the 2012 act, looks at it offence by offence. It does not really ask what type of persecutory offence we should be looking at. That seems to be the approach that is being taken by the Home Office team at the moment. It is looking at as wide a scope as possible, which would include a similar definition of sexual activity, excluding those offences that would still be illegal today.
My hope is that there will be parity and it is helpful that this legislation is passing now, because that is a live activity and we expect a regulation to come out of the Home Office at some point this year.
That is very helpful—thank you.
Paul, your comments tie into something important, which I mentioned in my opening remarks to Gillian Mawdsley. It is about the use of language and how we need to update that use of language. However, that language was used in convictions at the time, so there will be people who have a conviction for breach of the peace, although it would actually have been for something else. If we look at the language in the Army Act 1955—I am going to read this out because it is horrendous and it gives us a good example of such language—section 64 states:
“Every officer subject to military law who behaves in a scandalous manner, unbecoming the character of an officer and conduct of a gentleman, shall, on conviction by court-martial, be cashiered.”
Section 66 states:
“Any person subject to military law who is guilty of disgraceful conduct of a cruel, indecent or unnatural kind shall, on conviction by court-martial, be liable to imprisonment for a term not exceeding two years or any less punishment provided by this Act.”
In Scots law, none of those are terms that you would convict someone under. Getting that language right is incredibly important to ensuring that we target the right people who can have the disregards applied to their records.
Can you give us a wee bit of insight into how we can do that and say whether there is anything that we have missed in the bill?
I do not think that anything has been missed in the bill. The question of language is important. There is great opportunity here. Obviously, once the bill is passed, there will be a period of time before the legislation comes into force. What is vital is the system that the Government sets up in relation to the forms and the guidance. A lot of guidance that is created to support primary legislation is sent out in draft form to stakeholders. I fully endorse the guidance in relation to this legislation being sent out in draft form.
To pick up on your point about language, convener, I thought that it was good that Mr Ogg was asked whether other categories of offences should be included and whether people were being actively asked about that at this stage. I would endorse that at the guidance stage. I am not saying that there should be a public consultation, but that gives us an opportunity to discuss issues such as what is offensive at a point at which everybody is on one page, as it were. The spirit is there. It is about getting the best language that we can to support the fair society. That might be one way of going forward in relation to language.
The bill picks up on the modern approach to the drafting of legislation that involves being neutral. The Sexual Offences (Scotland) Act 2009 talked about person A and person B. That is exactly the spirit here, which is important. We recognise that we are dealing with men with this legislation; women obviously form groups in this regard, but the legislation does not apply there because there is no evidence to support the idea that they have been convicted of any offences to which the legislation would apply. However, that whole category is still important when we look at the way in which language is used and the message that is being sent out for the future.
That is really helpful.
Before we move on, I note that the trial that Derek Ogg is involved in has overrun, so he has sent his apologies—the vagaries of the law, I suppose.
I have a small question that concerns an issue I picked up in the Scottish Parliament information centre paper, which is very good. I would like your opinion on something that perhaps ought to be included in the guidance even if it is not in the legislation.
As we have said throughout our evidence taking, there are elements of the legislation that are symbolic. With regard to posthumous pardons, what is your view on the question of whether families who are perhaps delighted that a relative of theirs who is now dead has been recognised not to have been the criminal that they were painted to be should be able to make an application to get something in writing that would symbolically state that they were right all along and would give them something to prove that? How would we do that?
Detective Superintendent Houston
One of your first difficulties is that, if the person is deceased, there might not be a police record to say where that conviction had taken place, what court was involved and so on. It is not outwith the realms of possibility that that information would exist, but the chances are that the record would have been deleted on their death, unfortunately, and that would make that process extremely difficult.
That is interesting.
Last week, I asked whether relatives of deceased people could apply retrospectively for a disregard. I believe that the disregard scheme is only for those who are living and to whom the offence is relevant. If someone’s parent, brother, sister, son or whoever had passed away after having been convicted, they will be included in the pardon, in a sense, but that criminal offence will still appear in historical records, where they exist, which means that that person will never have those offences disregarded.
Is there scope to allow immediate family members or next of kin to go through the process to have those records updated, in the way that would happen with a living person? Within the realm of what is possible in record keeping, I like to think that when someone passes away, all their criminal records disappear overnight, although I am sure that they exist for a period. Is there some possibility of including that mechanism, which does not exist at the moment?
Detective Superintendent Houston
If a record has been deleted after we were made aware that the person is deceased, it is really difficult. As that record might not exist, the difficulty would be knowing where to start. Where would we go? I am probably not giving you the answer that you would like. The pardon aspect of the bill would still stand for that person, which might be some comfort.
I fully appreciate the fact that something might have been in the person’s criminal record and that years from now someone might have the opportunity, if the record were kept, to look at it. However, the issue is difficult to address if we do not know whether the record has been deleted.
In the German system, I believe that people who receive a disregard also receive a certificate. Although that is symbolic, it is a visual piece of documentation, and given that a person has gone through a proactive process, it would not be a huge surprise to receive something of that ilk in the post. Would it be a good idea for us to do that in Scotland?
Detective Superintendent Houston
Someone spoke earlier about how the legislation could be marketed in a short campaign. For a lot of people who have been debarred because of their convictions over the years, their convictions came to light when they made applications to a PVG scheme or Disclosure Scotland.
When someone is doing an application to Disclosure Scotland, there could be an opportunity to say, “You might think that you are not able to do this, but here you go—here’s an application”. Signposting them towards the disregard at that point might be another, longer-term marketing opportunity. If the application form included that information, the record would not be there by the time that someone made an application.
I appreciate the symbolic aspect, but that suggestion would be something practical that would give people the opportunity to do things that they might not have been able to do previously.
That is a good point.
Annie Wells (Glasgow) (Con)
We have talked about enhanced disclosure. Organisations might have had reports back with information on them about offences that people have put down but which are no longer offences. However, a lot of organisations will also have previous records. How do we go about making sure that they get to those records as well? They could be records for social work, football coaching or whatever, which are sitting with different organisations.
Detective Superintendent Houston
As I said before, it probably comes down to a marketing and awareness-raising campaign. People can be told, “If you are going down the road of getting a conviction disregarded, you will be able to reapply for things and make sure that the correct record is available to those people”. It is difficult, but we will have to try to tell people, “You need to do this—you have previously been debarred, but let’s make sure we get it right.”
People who had a conviction on their record might no longer be going for a position, but that record still exists within organisations. If anyone were to look through those records, one of them would say, “Annie Wells did not get this job because of X.” The record will still be live within the organisation. I do not know how we go about ensuring that that is no longer the case.
Section 10(1)(b) removes them from all organisations. It requires the keepers of records—
Yes, but how do we tell the organisations to remove the records? If I have applied for an enhanced disclosure in order to apply for a job—and I have done that—those records will still be sitting there. How do we get to the organisations to ask them to remove them?
Presumably, Disclosure Scotland will have records of the provision of enhanced disclosure. That means that there will be an opportunity to be proactive and contact the organisations that have received an enhanced disclosure about those individuals as part of the process. That might be the best way of achieving that.10:30
A big part of what Disclosure Scotland does now is the protection of vulnerable groups scheme. That is a continual monitoring process, so the removal of offences from people’s central records will trigger an update in that scheme. However, it does not push that through into employer organisations. Annie Wells is right to say that there is a challenge around that. That would become part of the marketing and education campaign that would need to accompany the bill to ensure that all organisations that are recipients of police information—even if it is historical—action their own records, as they are required to do under the Data Protection Act 1998.
I endorse what has been said about marketing and education. The only issue that I would raise is that, in the situation of a failed job application, there will be rules that apply to the information that can be kept on such matters, so that, after a period of time, it can be deleted. However, I do not take away from the fact that we do not want to have it there in the first place. A safeguard will come in, because, once someone has not got a job, there will be a very limited period afterwards in which information is kept but it should be deleted from the record. Someone who is involved in employment areas would be better placed to give an indication of what the applicable rules would be.
How the PVG scheme might work throws up an interesting area on which to direct our questions. There is usually a cost implication for accessing that scheme, so we might need to investigate that as well. However, we can talk about that in a wee while.
I have a brief follow-up point on Linda Fabiani’s question about posthumous pardons. I think that there should be a mechanism in place whereby a family can apply for a disregard when someone has been convicted. I appreciate that you may not give me a different answer from the one that you gave Linda Fabiani, but I will ask my question anyway. There have been cases in which individuals have taken their own lives because they have been convicted. Their families have had to live with the distress of the conviction and then the distress of a family member taking their own life. There should be a mechanism whereby such a family should be allowed to go through the process of getting that conviction removed, to give them some comfort and peace. I am interested in the panel’s views on whether we should look at that.
I agree that there will be such cases. There might be a small—but important—handful of them in which families might want to do that. I wonder whether it would be feasible to develop a process in which—even if the answer is that, after searching, the records are found to no longer exist—at least the family can have confirmation that their loved one has received the automatic pardon. Although that would involve an administrative process, it would be quite simple to do. It would probably be for only a small group of people, but it would be so important for them.
Yes, that is interesting. Are there any other views?
Detective Superintendent Houston
I know that I am repeating myself, but I take on board the point that if we could say that the record did not exist at all, that might then be of some comfort.
So there would be some way of communicating that to the family.
Detective Superintendent Houston
That would be possible, quite easily. A quick check would reveal that no record existed.
That is helpful. Thank you.
Section 10, which is about the removal of disregarded convictions from official records, will give comfort to applicants that evidence of their conviction has been expunged from the records of anyone who holds it. However, it occurs to me that aspects might have been recorded that are not about the conviction itself. The principal example on which I would like to focus is the small number of cases in which chemical castration was part of the conviction process. Famously, that happened to Alan Turing, who undertook it to avoid prison. Such castration will have been noted in medical records.
Through this legislation, should we offer applicants the opportunity not just to expunge their criminal records but to have things redacted from medical records, too? At the moment, if patients dispute something in their medical records, they have the right to have notes attached to them but not to have anything redacted. Is this the place to address that? I throw that question open to any panel member.
Anne Marie Hicks
Again, you would have to look at the scope of the bill. If something in the medical records related to a criminal sentence, that might bring it within the scope of the bill, but we would have to be really careful that we were not encroaching on other areas. Although there is no doubt that records of discriminatory practices are held elsewhere, the second part of the disregard is very practical—it has a very particular purpose in that it is about removing convictions that, even today, can be a barrier for people. We would have to be careful how far we went in widening the removal of the record of a conviction.
Detective Superintendent Houston
The same could be said for someone who was convicted and sentenced to imprisonment. They would enter the prison records, too, and any medical records held by the prison could be slightly different. As my colleague said, there is a wider aspect. Where do we stop?
Sometimes other parties—for example insurance companies—have access to people’s medical records, whereas you can be pretty confident that other parties will not go digging around in people’s prison records. I asked that question because someone might so fervently want the state to acknowledge that they did nothing wrong that they want any mention of what they did removed from their personal records. I think that a medical record is the only other example of a record that could materially impact people’s judgment of someone’s character, so they might fiercely want to have that record redacted. I wonder whether we should give them that opportunity via this legislation.
Clearly, it is a good idea in principle. You are right to point out that it might relate to only a small number of cases. I guess that it would be useful to think through how the process would work and which other organisations would need to be brought in to allow medical records to be redacted. I have not really thought about it, but I would agree with the principle.
Great. The convener has pointed out that the same is true for conversion therapies, psychiatric treatment orders and the rest of it, all of which have very pregnant meaning on medical records. People would be very keen to have such treatments redacted.
We ventured earlier into the use of legal aid. I have a couple of questions about the appeals procedure. I note that there have been no appeals under the disregard scheme in England and Wales. Is that because it was a seamless, easy process, or has there been no opportunity to appeal? Do we have it right here? The Law Society of Scotland commented on that, so I will come back to Gillian Mawdsley, but I wondered how the legislation in England and Wales compares with our proposed legislation.
I have to admit that we have not spoken to any individuals who have had a disregard rejected. I talked about the case in 1995 when a man was convicted under section 32. There was no route for legal appeal because it was very clear that the offence that he was convicted for was outwith the scope of the law—that was made clear to him in the communication about his rejection. He has pursued that as a campaign with his member of Parliament, which we have supported.
I suspect that that is probably the case for the other 268 applications that have been rejected. The Home Office has made it very clear why those applications have been rejected—in most instances it is because the case has been outwith the scope of the legislation. A lot of those cases were related not to historical sexual offence convictions but to offences that are still illegal today. Such examples are very clear, but other cases, for example involving the importuning offence, related to simple loopholes in the law. In such cases the law needed to be changed. Communication from the Home Office has been very clear, so I suspect that people have decided that there is absolutely no point in appealing. It has been a very difficult process for those people. They have taken the proactive step of trying to get their conviction disregarded only to find that the state is still saying that it will keep the conviction in place.
Of course, a lot of cases are rejected because the offences are still illegal. In particular, a large group of cases was rejected because they related to sexual offences that were committed in a public lavatory; obviously, that is still illegal today. The group of 81 people who have been rejected on that basis do not have any recourse for appeal, which is probably why they have not appealed.
The Law Society’s submission went into some detail on appeals, the use of legal aid and what other support is available. Will you give us some insight into your thoughts on that, Gillian?
I had a look at the English equivalent. There is a process involving the court that an applicant can make. That is obviously a good thing. My only concern is about why the process would be any different from any other process that goes to a sheriff. In the normal order, a sheriff can be appealed and, although we might not want the issue to be appealed to the Court of Session, there is a sheriff appeal court that could be used.
Looking at the English examples that we have talked about, I think that the concern is more a matter of theory than the practice. However, the committee has the opportunity to consider whether it wants the court to have that finality. I appreciate that the mechanism would be that, if the application for the disregard fails and more information becomes available, a new application could be made, so I understand that there is another way back through the process.
We did not have a strong view on the matter but the question was really why it should be different. That was my only concern. Against that, we do not want cases to be trundling through. However, what the sheriff has to do is clear so the situation should be more or less clear to a sheriff. I was only thinking that, if a sheriff gets it wrong, there is no further mechanism. The individual would be back to having to make a new application with new information.
That clears up that question in my head.
My other question is for Police Scotland. In the conclusion to its submission, at paragraph 6.1, Police Scotland uses the term “victims”. I will read it so that the witnesses understand what I mean:
“These processes, gathering and compiling relevant historical and associated information on the subjects, and if possible ‘victims’, could enable Ministers to arrive at a position where all relevant records are identified”.
Police Scotland has put the word “victims” in inverted commas. That jumped out at me. I ask the witnesses to explain what they mean by that.
It was trying to point the committee in the direction of the art of the possible, and to make it clear that the records and information could be examined and a determination could be made as to whether a case related to someone being persecuted for their sexuality or whether they were acting in a sexually predatory fashion. That brings into question the other party who may have been involved in what was purported to be offending behaviour and means that there was either a victim or somebody who was party to the activity. The records might show that two people were charged with the same offence at the same time and, therefore, were party to it, in which case there would be no victim. In other circumstances, as Stuart Houston said, somebody might have been abusing power or there might have been an age-related issue, in which case we would have somebody who would be referred to as a victim.
That clears that up perfectly.
I think that we have exhausted all the questions. We have had superb responses that have helped us to understand a bit more where we need to go next and some avenues to investigate. I express the committee’s gratitude for the witnesses’ oral evidence, which has been incredibly helpful, and their written evidence. If they go away and think of something that they should have said, they should let us know because we are continuing the inquiry for another few weeks until we get it right for a stage 1 report. Anything that the witnesses could offer us would be gratefully received.
We will take our second agenda item in private.10:44 Meeting continued in private until 11:23.
8 February 2018
Third meeting transcript
Good morning and welcome back to the Equalities and Human Rights Committee. Agenda item 4 is our continuing evidence on the Historical Sexual Offences (Pardons and Disregards) (Scotland) Bill. We are just about to conclude stage 1 consideration of the bill, and we will hear from the Cabinet Secretary for Justice this morning.
Before we move to the evidence-taking session, I wish to state that, last week, the committee took evidence in private session from men with historical convictions who plan to apply for a disregard. The clerks are preparing a note on that meeting, which will be included in our stage 1 report. The two men who took part are happy for us to do that, although their evidence will be anonymised.
I put on record my thanks, on behalf of the whole committee, to the men who met us last week. I am sure you will agree that, when they shared their personal stories, it put a human face on what the bill means, showing us how important the proposed legislation is to them and how it will improve their lives once it is enacted. I am sure that members will keep their stories fresh in their minds today as we talk to the cabinet secretary.
On that note, I welcome you to the committee this morning, cabinet secretary. It is not often, when a committee is going through a bill process, that we are at one about how important the bill is and can see the difference that it could make to people’s lives. We are really happy to be doing this piece of work in the committee.
I am keen for you to give us some opening remarks, cabinet secretary. We have taken evidence on a number of areas, and the evidence session that we had in private last week was the icing on the cake for us. We have a number of questions for you this morning, but, if you could give us an opening statement and put things into context for us from your point of view, that would be very helpful.
Michael Matheson (Cabinet Secretary for Justice)
Thank you, convener, for inviting me to give evidence this morning on the Historical Sexual Offences (Pardons and Disregards) (Scotland) Bill. It may be helpful to the committee if I briefly set out the context for the new legislation.
The bill is intended to deal with the on-going impact on people’s lives of discriminatory laws that criminalised same-sex sexual activity between men. It makes provision in two separate but connected areas. First, it provides a pardon to people who were convicted of historical sexual offences for activity that is now legal. Secondly, it puts in place a scheme to enable a person who has been convicted of a historical sexual offence to apply to have that conviction disregarded, so that it will never be disclosed—for example, as part of an enhanced disclosure check.
The two schemes apply to offences that were used to prosecute sexual activity between men which, if it occurred in the same circumstances today, would be lawful.
The pardon provides that a person who has been convicted of a historical sexual offence is pardoned for that offence if the conduct that constituted the offence would not be criminal on the day on which the eventual act comes into force.
The pardon is symbolic. It provides formal recognition that the person should never have been punished. In contrast with the approach that is being taken in England and Wales, it is automatic. A person does not need to make an application in order to be pardoned.
The bill also provides for a disregard scheme, which enables a person with a conviction for a historical sexual offence that criminalised same-sex sexual activity between men that would now be legal to apply to have that conviction disregarded, so that information about that conviction does not show up in any disclosure check that is carried out when that person applies for certain work or voluntary roles.
Whereas the pardon is a symbolic matter, the disregard scheme has a real practical benefit attached to it. The bill provides for a presumption in favour of granting the disregard. That is to say, the disregard is granted unless it appears either that the conviction is not actually for a historical sexual offence at all or that the conviction was for an act that remains illegal today—for example, because it concerned non-consensual conduct or because of the age of the complainer.
When a disregard is granted, the bill provides that official records must be updated so that information about the conviction is removed or annotated in such a way as to make it clear that it should never be disclosed.
The bill also provides that, when a disregard is granted, the person who was convicted of the offence is to be treated for all purposes as not having committed the offence and not having been charged, prosecuted, convicted or sentenced for that offence. That means, for instance, that it would not be lawful for a potential employer to discriminate against a person because they have such a conviction.
I hope that that is helpful. I am, of course, happy to answer any questions from committee members.
Thank you very much, cabinet secretary. I will take questions from members in turn this morning, as they have all been pursuing different areas of the bill.
Good morning, cabinet secretary, and good morning to our colleagues from the Scottish Government.
We have been struck by the evidence that we have received at stage 1. It has been compelling, dignified and very striking. We learned in a previous evidence session that, in countries where this process has happened before—for example, Germany—an element of financial compensation is paid out to those who apply for a disregard. There is an automatic basic payment, and an enhanced payment is made if additional circumstances are identified. It was clear that the majority of the people whom we took evidence from had not even thought about compensation, and it was certainly not a motivating factor for them. They suggested that it was neither here nor there to them—the bill was about righting a wrong.
However, we also heard from people who suffered financially. They perhaps had to pay a fine as part of their sentence, or they had to pay very significantly through their career prospects as a result of having a criminal conviction. We heard from one gentleman who was clear that it had hampered his career progression. What consideration—if any—has the Scottish Government given to awarding at least a basic level of compensation, perhaps with an enhancement, to those who come forward?
You raise a very important issue. When we were considering introducing this piece of proposed legislation, the principal focus was on providing a disregard, particularly for those who continued to have the offences on their criminal records, and on providing a pardon across the board to those who had been convicted of the offences. As you say, it was about righting a wrong, recognising that there was legislation in this country that was discriminatory—it was state sanctioned. The representations that we received and the views that were expressed to us were about the apology, the pardon and the provision of a disregard.
The challenge that I have around the idea of compensation is that, although only a limited number of men were convicted of the offences, a greater number of men were affected by the very fact that there was legislation that discriminated against men who were gay or bisexual. The reality is that it would have impacted on their lives in different ways, although they may not have been convicted of offences.
There is, therefore, a danger of creating an arbitrary divide between those who were convicted of an offence and those who were not convicted of an offence but who were affected by the very fact that there was state-sanctioned legislation that discriminated against the type of sexual relationship that they wished to have. I am of the view that that would be an arbitrary division that I do not think is appropriate. To some degree, it would create a hierarchy of those who may have been more affected by the law than others. In reality, such discriminatory legislation should never have been in force in the first place.
For those reasons, and having considered the matter, I do not think that a compensation scheme would be appropriate. It would create an arbitrary divide between those who were convicted and those who were not. It would not recognise the fact that thousands of men were affected by the very fact that there was discriminatory legislation in place, even though they may never have been convicted of an offence. A compensation scheme would potentially introduce that arbitrary type of divide, which I do not think is appropriate.
That view was certainly expressed by the majority of people who gave evidence, and, as a committee, we are probably coming round to that way of thinking.
It was amusing when one of the witnesses who gave evidence privately last week said, “Well, you could always pay me my 40-shilling fine back.” The point that he went on to make was exactly what you have said about creating that arbitrary distinction.
I will move on. Although it is clear what the bill does to criminal records—we all accept that there will not be a deletion of the criminal record, because it is important that we do not accidentally preside over a sort of revisionist history of what happened in that period, albeit that the facts will be disregarded—evidence of sentencing can be found in other places as well. For example, in a very small number of cases, there may be medical records showing medical interventions that were made in the 1950s, 1960s and early 1970s as a result of sentencing or as a sort of alternative to custodial sentencing. It might not be appropriate for that information to be deleted from medical records, but there may need to be a mechanism by which the appellants can have something attached to their medical records explaining what happened to them or somehow having it disregarded. Is any consideration being given to that side of things?
The legislative provisions around medical records are somewhat different from those concerning criminal records. The challenge is that the proposed legislation addresses individuals who have criminal convictions for offences that would not be considered to be a criminal offence today.
The challenge with medical records is that the medical procedure took place. Although there are issues about whether that medical procedure should have taken place—our views on that have changed—the reality is that it did take place and is part of the person’s medical history. In my view, it would be extremely difficult to erase that from their medical record. There would be a potential risk that, if someone had undergone a particular medical procedure, their medical record would no longer be complete, which might be relevant at some point in the future if their medical history needed to be taken into account for other procedures or treatments. It would be for the committee to seek medical advice on whether that view is entirely correct, but my suspicion is that such information would be important.
In addition, medical records are disclosed only in very limited circumstances, which is different from the disclosure of criminal records. Medical records are often disclosed only to other clinicians for the purpose of their awareness. Such information is not of the type that is disclosed through a disclosure check, for example, when someone seeks employment.
The circumstances in which the information would be provided are different, and there is an issue around someone’s medical history potentially no longer being complete if records of certain medical procedures were to be erased.
The other element worth keeping in mind is that there is a process that patients can go through in accessing their medical records and challenging information that may be contained within those records, if they choose to do so. However, the purpose for which medical records would be used is very different from that of criminal records. There are potential practical and clinical challenges around altering people’s medical records, given that they form part of their medical history.10:15
How will the bill apply to those people who are living in the United Kingdom now who have criminal records for the offences that we are talking about, which are no longer offences, who were prosecuted in other jurisdictions—perhaps overseas? How can we extend the provisions of the bill to ensure that people who are subjects of this country can have the disregard irrespective of where the sentence was handed down?
The disregard applies to legislation that is relevant to Scotland or the UK. The challenge in extending it on an extra-jurisdictional basis is that the application of laws in other countries is different. The thresholds are different, and the rationale behind the law concerned will be different.
It is worth bearing in mind that the disregard is intended to remove the matter from a person’s criminal record, and Disclosure Scotland would not normally hold information relating to offences that took place in other jurisdictions on people’s criminal records here. If a disclosure check took place, Disclosure Scotland would not necessarily hold that information and it would not be disclosed at that point. As I understand it, Disclosure Scotland considers offences that have taken place outwith our jurisdiction only when an enhanced disclosure check is undertaken. In such circumstances, that consideration would broadly relate to protected persons’ roles—people working with children and young people—and, by and large, would deal with offences relating to child sexual offences in other jurisdictions, which Disclosure Scotland may wish to check for.
Disclosure Scotland has an arrangement in place with 12 other European Union member states, I think, for the sharing of that information as and when that is appropriate. However, the disclosure checks that take place for employment here—even the enhanced disclosure checks—would not necessarily contain the information about prosecution in another jurisdiction if it was not relevant to the post that the person was applying for or working in.
The challenge is that the thresholds, the purpose of the legislation and the nature of its application in another jurisdiction would be different from here. We would not necessarily have access to court records, for instance, so that we could scrutinise them in detail in the same way. The proposed legislation is limited to Scotland and the UK for the reasons that I have mentioned and because of some of the practical and operational difficulties that would stem from what you suggest. Disclosure Scotland would often not hold that information anyway.
Before I move on to our next colleague, I note that the questions that Alex Cole-Hamilton has been asking on compensation are ones that he has been asking everyone, and we have gathered lots of evidence on the issue. The gentleman who asked us last week, “What are you going to do? Give me my 40 shillings back?” went on to say that, if there was to be a compensation scheme, the money should be spent on awareness raising of the eventual act, when it comes into force, and on support—whether that is legal aid or other support for people who need it to navigate the system. Might the Government consider using the money to raise awareness and support people rather to establish what might be, in a sense, an arbitrary compensation scheme?
With the will of the Parliament and with its support for the bill, we will consider having a public information campaign. We intend to pursue that by working in partnership with third sector organisations to publicise the provisions in the eventual legislation and the process for applying. The idea of providing financial resource to facilitate awareness and understanding of the proposed legislation is something to which we are already giving consideration.
Turning to your second point, on the issue of legal aid, my intention is to make the application process as straightforward as possible. I would like to avoid the need for individuals who wish to apply for a disregard to have to engage any professional expertise to support them in making that application.
We are giving quite a lot of thought to how we make the application form as straightforward as possible while ensuring that it provides the necessary information to allow us to consider the application. I want to avoid the process becoming one in which people feel that they must seek legal representation. However, an applicant may wish to consider whether they require legal representation if they decide to appeal a decision not to remove an offence from their criminal record. Once I have considered an application, the applicant will be able to appeal to a sheriff for reconsideration. We are looking at the existing rules and considering how legal aid may be made available to someone in those circumstances.
I hope that our public information campaign, our work to ensure that the application process is straightforward and our consideration of how existing legal aid rules would apply to the appeals process provide assurance of our commitment that the legislation will work as effectively as possible and that individuals who require legal representation will be provided with additional support.
Thank you, cabinet secretary. My colleagues have a few more detailed questions on those areas.
Gail Ross (Caithness, Sutherland and Ross) (SNP)
Good morning, cabinet secretary—I thank you and Patrick Down for coming along today. Everyone from whom the committee has taken evidence has warmly welcomed and been very supportive of the automatic pardon. However, a small number of people asked whether the disregard scheme should be automatic, so we took more evidence on that. Police Scotland explained in evidence that some of the offences in question may well still be offences, so an automatic disregard would not be possible. In addition, many cases were prosecuted under obscure byelaws relating to breach of the peace and things like that. Also, we heard that some men may simply wish to keep such matters in their past rather than have them brought up again.
We also spoke with witnesses about the application process; the convener touched on the question of how you will publicise that process. However, I have a question about the form itself. Last week, we saw the English version of the form, and it was put to us that it is perhaps a little bit overcomplicated. You mentioned just now that you want the process to be as simple as possible. Can you tell us what the form here might look like?
First, I will deal with your initial point about an automatic disregard. It is important to recognise that we drafted the bill to deal with both common-law and statutory offences. If someone had been convicted under a common-law offence such as breach of the peace, we would be able to understand the exact nature of the offence only when we scrutinised the police records and court reports. Gail Ross is right to point out that some offences for which individuals were convicted remain criminal offences—for example, if an act was non-consensual or involved a person under the age of 16. The disregard process must involve scrutiny in order to validate a person’s right to have a conviction disregarded.
One of the benefits of there being a process already in place in England and Wales is that we can learn from the experience there; we have already identified the need to avoid producing an overly complicated form. I cannot set out just now specifically what our form will look like, but I assure you that we are seeking to ensure that the process is very simple and straightforward. We will try to achieve that aim as best we can.
I am conscious that many of the offences occurred a considerable time ago, so it is important to ensure that we capture as much information as possible from the person who makes the application. We are talking about pre-1980 offences, so people’s recall of dates and exact circumstances may have changed. It is important that we allow people to provide as much information as possible for us to take into account. When we draw down criminal records from Police Scotland and information from the Scottish Courts and Tribunals Service, they will give us a higher level of information and detail.
At present, I cannot give any specific information about the form, but I assure Gail Ross that we are learning from the experience in England and Wales and seeking to draft the form in a fashion that will ensure that it will be straightforward to complete. I anticipate that some road testing will be undertaken before it goes live; for example, we will work with third sector organisations and engage with individuals to test how straightforward they find the form before it is introduced.
Once the scheme is publicised through third sector organisations—Disclosure Scotland has already written to the committee to say that it is happy to help with that—how will people go about the application process? Where will they find the form? Will it be available to download? Can people get it on paper? How will the process work in practice?
Our intention is that the form will be downloadable—people will just be able to take it off the web and fill it in. I do not want to say just yet that it will definitely be possible to fill in the form online, in case there are technical issues or other problems. I think that it should be possible, but I am not an information technology guru.
I hope that individuals will be able to contact the third sector organisations with which we are working. Those organisations will be able to send out forms, and they may have links on their websites. People can also use the Scottish Government website to contact the Government or they can contact MSPs, who could download the form and send it out. The system should be open, transparent and readily accessible. Given the nature of the information that will go on the form, I expect that we will provide explanatory notes to set out what we are looking for in the various sections in order to make the process as straightforward as possible.
The convener touched on legal aid. It is reassuring to know that that will not be an issue—we hope—if the process is going to be quite straightforward. However, what about emotional support? Last week, we heard in evidence that there might be men out there who might find it very difficult emotionally to drag all this up again. How should we handle that?
That is a valid question. That is also a reason for not having an automatic disregard. There will be men who want to leave things in the past and who do not want to engage in the process.
I am happy to explore whether we can seek assistance from third sector organisations, which may be able to provide support to individuals who require assistance in completing the form. That may include not only practical assistance but emotional support, given that people who are going through the process will be reliving difficult incidents from their past. I am happy to take that point away to explore with those organisations whether there is a mechanism by which we can provide practical and emotional support for individuals who require it.
Thank you. That is very reassuring. Finally, do you have any idea how many men the legislation is likely to affect?
The scheme in England and Wales has been operating since 2012. To date, just over 250 applications have been made—Patrick Down will confirm the number.
Patrick Down (Scottish Government)
The scheme has received 254 valid applications, excluding applications relating to assault, fraud or other offences that have nothing to do with the legislation.
Based on a proportionate share of those figures over a five-year period, we anticipate about 25 applications. However, the definition of a sexual offence in the Scottish bill is much wider than it is in the legislation that covers England and Wales, so it could draw in a greater number of applications.
On the flipside, it is worth keeping it in mind that the Scottish requirement for corroboration, which does not exist in England and Wales, could play a part in reducing the number of applications, because there may have been fewer such convictions in Scotland in the first place.10:30
I cannot be accurate—I can give only our best estimate based on the experience in England and Wales, which suggests that the number of applications will be in the mid-20s. However, the number could be greater, given that our bill defines a sexual offence more broadly, which allows it to take in a much wider group of people. Nonetheless, the scale will be very limited, even with a threshold of 25 applications, and the numbers will certainly be manageable.
There are some variables in that regard. Stonewall UK suggested to the committee that many people in England and Wales have not applied because the application process is too complicated or too much for them. We just need to be ready: that is the watchword.
Good morning, cabinet secretary. The pardon will apply to all men, living or dead. In previous evidence sessions, I have used the following example, and although I accept that it might be extreme, the circumstances will exist for many families. A family might want to clear the name of a dead relative, and the individual might have taken their own life because the shame and trauma of a conviction were too much for them.
Setting that to one side for a moment, there will also be individuals who lived with the shame and trauma of their conviction every single day. It may have affected the way that they led their lives, their job opportunities and how they conducted themselves, and their family will be acutely aware of that. Families may also be aware that, if the individual was still alive, they would apply for the disregard. Have you given any consideration to that, or will you consider doing something about it?
We have given that matter some consideration. I acknowledge Mary Fee’s point; the issue is a valid one to consider. The reason why there are no such provisions in the bill is that the disregard is for the purpose of a disclosure check, which would not apply to a dead person. In addition, the police do not normally hold criminal records on dead people, and criminal records are an important element of the checks in the process of deciding whether the disregard should be applied.
I understand that, in some circumstances, a family may wish the disregard to be applied, despite the fact that it is for the purpose of a disclosure check. I am happy to give the matter further consideration. If there is a means by which a disregard could be achieved in such cases, I would not be opposed to it. I suspect that the number of such cases would be very small, anyway.
However, I offer alongside that the warning that families might not, in many cases, have the level of detail that would be necessary to enable us to undertake proper checks, given that the individual who had been convicted would no longer be with us, and given that we could not access criminal records because Police Scotland would no longer hold them. In addition, there is a potential danger that if a family applied for a disregard and we did not have the necessary background information and the criminal record, we could end up—even with a presumption in favour of the disregard—saying that the disregard would not apply. In such circumstances, we would risk compounding the anxiety and concerns of the family.
As I said, I am not opposed in principle to such applications, but there are potential unintended consequences. We need to understand the risks more fully before we make a judgment on whether that would be the right thing to do. I have set out the principal reasons why the bill does not currently include such a provision. If the committee, given the evidence that it has heard, thinks that the bill should include that provision, I will certainly consider the matter once I have received its stage 1 report.
I appreciate those comments, and I welcome your willingness to look at the matter. We heard in previous evidence that it would help even if the family could be sent a letter to say that their relative would not, given the circumstances of their case, have been convicted today.
Although I accept what the cabinet secretary has said, the disregard is symbolic. I appreciate that there would be obstacles in terms of lack of information about the conviction, but a number of organisations—and, I know, a number of families—would appreciate the inclusion of such a provision in the bill. The committee should perhaps consider how that could be done, but I accept your comments. As you said, offences that could otherwise be disregarded might still be seen as crimes because we do not have the information and the detail to grant a disregard.
As I said, there are potential negative consequences. We have to be careful that we do not, with the intention of trying to do the right thing for families, end up compounding problems. I am very open to considering the committee’s views on the matter in its stage 1 report, and we will reflect on those views.
That is very helpful. Thank you.
Annie Wells (Glasgow) (Con)
Good morning, cabinet secretary. A lot of my questions have been answered, but I have one more question. The bill includes an extensive list of offences. Is it extensive enough, and will there be scope to add more offences if necessary?
That question is important, because the definition of a sexual offence in our bill is much wider than it is in the legislation in England and Wales, and it covers both common-law and statutory offences. We have put in place a catch-all provision because we are conscious that some individuals may have been prosecuted under local authority byelaws of which we have no real knowledge.
We heard about some of those byelaws at our meeting last week.
Such circumstances would become apparent only when someone made an application and we considered the court records. As ever, the danger in listing things is that we leave something out. The catch-all provision in the bill allows us to pick up convictions under obscure byelaws that local authorities produced, in order to ensure that individuals do not find themselves being excluded from the scheme because we were not aware of a byelaw. I suspect that some local authorities are no longer aware of such byelaws, which might have been put in place many decades ago.
We have included in the bill a broad range of statutory and common-law provisions—we have got that right—and the catch-all provision will allow us to consider a disregard request in relation to offences under obscure byelaws that may have been used.
At our meeting last week, we heard about one of those laws—I think that it was the Edinburgh local authority of the time’s cleansing byelaws of 1839. There were a lot of very interesting provisions in it, including one that related to conduct in public toilets. We do not envy you your job of looking through all those records, cabinet secretary.
We can obviously learn from the experience in England and Wales, and we have an excellent opportunity to shape a bill that meets our intentions. I warmly welcome the bill and thank you for introducing it.
I have a couple of short questions. First, would a person who currently lives in Scotland but was in the past convicted of an offence in England or Wales have to use the system for England and Wales or would they be able to take advantage of the Scottish legislation?
If the person was convicted in England or Wales, they would need to use the system that covers England and Wales.
That leads me on nicely to my next question, which picks up on the point that Annie Wells made about the wider scope of the bill.
The application form for the England and Wales scheme, which we saw last week, states specifically that people cannot apply for a disregard if the offence for which they were convicted took place in, for example, a public lavatory. We have raised that with some witnesses during our evidence sessions. Their understanding is that a person in England or Wales would not be able to apply for a disregard in those circumstances, but someone in Scotland would. That opens up an element of confusion. When the scheme goes public, will people out there be wondering, given the provisions in the scheme that covers England and Wales, whether or not their convictions are covered under the Scottish legislation? How do we address that issue so that, when the system goes live in Scotland, people will be forthcoming in applying for a disregard?
Jamie Greene has highlighted an important issue. The scope of the disregard scheme in England and Wales is limited to crimes of gross indecency and buggery; it does not cover offences that were used to criminalise activities such as—but not limited to—soliciting for prostitution. The provisions in that scheme are much more limited.
Part of the challenge for the public information campaign in Scotland will be to find sensitive ways in which to explain how the legislation operates and the types of offences for which a disregard can be applied. That must be carried out sensitively, because we do not want to compound what was discriminatory legislation in the past, of which many people are no longer aware, by unduly raising awareness of it. I hope that the campaign will help people—even those who do not understand the legalities around the offences that the legislation covers. I hope that people who were convicted of offences of that nature feel that the process is straightforward, open and accessible, and that they feel able to apply even if they are unsure, simply in order to check. The combination of a public information campaign and the open nature of the application process can help to address some of the issues and prevent confusion.
Thank you for that very helpful answer.
I have another question—again, I suspect that I know what the answer will be, but I will ask it anyway. In previous sessions, the committee explored the situation of current or former members of the United Kingdom armed forces who served in Scotland and currently reside here. In some instances, people were discharged from the armed forces for being gay, but they had committed no common-law or statutory offence. They will not be covered under any legislation, either in England and Wales or in Scotland.
The committee has written to the Ministry of Defence—which, understandably, is aware of the situation—to ask for its views, and we have also written to the UK Government. If someone previously served in Scotland and still resides here—in other words, let us imagine that they have never crossed Hadrian’s wall—but they were convicted under English and Welsh law within the jurisdiction of the armed forces, they will not be able to take advantage of the Scottish legislation. Could any further work be done to explore the legalities of that issue in order to see whether any of those people could take advantage of the Scottish legislation?
The committee has identified a very important issue. I am grateful to the convener for sharing with me the letter that she has written to the MOD on the matter. The MOD should recognise that, as wider society is righting a wrong, the military also has the opportunity to do so. It can look at military rules that previously applied in this area and the discriminatory nature of the way in which those rules were used against individuals in the armed forces.
The bill focuses on Scottish criminal law. If someone was convicted under criminal law in England and Wales, they would have to apply for a disregard under the scheme that covers England and Wales. If the conviction was issued under military rules, it would be for the military to put in place a disregard or pardon scheme that would reflect how the military rules process operates.
To be frank, I think that it would be difficult for the MOD to come back and say, “No—I don’t think we should do anything.” There is a scheme in England and Wales, and we are about to introduce a scheme in Scotland that has cross-party support. It would therefore be difficult for the MOD to say anything other than that it will look at the matter and try to find a mechanism that allows it to introduce a disregard or pardon scheme in the context of how military rules operate. I certainly encourage it to do so.
It will be interesting to see the response to the committee from the Ministry of Defence. If, after the committee receives a response, you feel that it would be helpful for the Scottish Government to make representations to the MOD or the Secretary of State for Defence to address the situation of service personnel who are Scottish or were based in Scotland, I will be more than happy to do so. That might assist in bringing some focus to the matter. However, I think that it would be difficult for the MOD to come back with anything other than a positive confirmation that it is prepared to look at the matter and that it will try to find a mechanism that will ensure that military rules reflect the current position of wider society on the issue.10:45
Thank you, cabinet secretary. It is not for me to pre-empt the MOD’s response in any way but, anecdotally, our discussions with individual members of the armed forces have all been very positive in that respect. There has been a cultural shift in the organisation, so I am hopeful—I know that the issue has certainly been recognised. I just wanted to mention it to you because people who are now resident in Scotland and who were discharged or convicted for offences that were committed in Scotland might be wondering whether the bill can help them in any way.
On a technical point, I suppose that, if someone was convicted of a common-law offence and an armed forces offence in Scotland, they could still apply for a disregard in relation to the legal aspect if not the military aspect.
Yes, they could do that, although the conviction would still be on their military record. My understanding is that, in the past, individuals were discharged from the military for the very fact of being gay. If their family looks at their military record, they will see that that is recorded there. It seems reasonable to me that the military should be looking to correct that in the same way that we are seeking to do so through our criminal justice system.
At our meeting last week, we saw some of the military acts that were imposed on people, which included some very stigmatising language. We are very grateful for your support in the work that we are taking forward with the MOD.
There are a couple of supplementaries, because while we have been talking, members have come up with more questions, which is always a good thing. Alex Cole-Hamilton can go first.
Mine is a very technical question—it concerns a very small number of people who might be affected by the bill. For completeness, we do not want to miss this opportunity to right wrongs across the board, so we have to consider every possibility that might arise.
The committee discussed the fact that, certainly within living memory—I am talking about the 1950s and 1960s—people would be sentenced and would, to hide their shame and embarrassment, use an assumed identity or an alias in that process. Are you content that, if there were people in Scotland to whom that applied, they would, if they came forward, be able to obtain a disregard even though they might be applying under a different name?
Do you mean people who were convicted under a different name, or who used an alias at that time?
Yes. I am talking about a range of circumstances.
I think that that would probably be a criminal offence in itself.
They might be admitting to fraud.
I am confident that the scheme makes the necessary provision to enable us to consider the criminal records that the police and the courts hold even if someone has changed their name since that time, but I think that if someone changes their name, their criminal record remains with them.
I was thinking of cases in which an assumed identity was taken—which might have been a fraud in and of itself—because someone was seeking to avoid embarrassment and all the rest of it. You have kind of answered my question.
Someone in that position might want to consider carefully what they do. They might want to take legal advice. However, I suspect that the chances of something like that happening are very small—
So we do not need to cover that.
If someone who was applying for a disregard had previously used an alias, we would certainly consider that as part of the process, although—for the reasons that I mentioned—the person might want to take advice before they make an application and highlight that point.
I recall that the definitions in the bill came up as an issue in a previous evidence session. Is there provision in the bill for people who have changed their gender since they were convicted?
Is there provision for them to make an application through the disregard scheme? If they have changed their gender and they still have a criminal record that is identified as theirs as a result of being prosecuted before 1980, that would be the case. The reality is that, if someone has changed their gender, their criminal record, with any previous convictions that they received, remains with them. They would still be covered by the legislation as it stands.
I have a couple of questions about record keepers. Section 10(5) of the bill allows the Government to make regulations that would list relevant record keepers. Have you given any thought to what a comprehensive list of record keepers would look like? If so, could you share that information with us? Should that Scottish statutory instrument be subject to the affirmative or the negative procedure?
On your latter point about the procedure that we will use, I will come back with a clarification. The principal record keepers will be Police Scotland, which keeps criminal records, and the Scottish Courts and Tribunals Service, which holds records on the court element of the process. The only other body that would keep records is National Records of Scotland.
With regard to procedure, have we—
It would be the negative procedure.
We would use the negative procedure for the regulations. The two principal bodies that hold the records are Police Scotland and the SCTS.
I have a question about the records that are held by National Records of Scotland, which relates to an issue that we have probed in previous evidence sessions. We will be unable to delete or remove anything from national records. The equality organisations have expressed the view that, if we could do that, we would in effect be changing history, and it is really important that we do not try to change or remove anything that has happened. The SCTS has said that it would be open to adding something to national records to say that, while a conviction exists, there would no longer be a conviction in the same circumstances today. I would be interested to hear your views on that.
The reality is that national records for individuals do not become available until 100 years after someone’s death, so people will not be able to access them in the near future. I can check with the SCTS exactly how it would want to achieve removal. I am not instinctively opposed to that, but I agree that these matters are an important part of our history. It is important that we recognise that we got it wrong—badly wrong—in that period of history, and we need to reflect on the past as part of our learning for the future. If there is a mechanism by which the SCTS believes that it can achieve that removal, it can do so. However, that would apply only to those who go through the disregard scheme—it would not apply to others. I am also conscious that, if people compare two sets of records in future and they see that one set has a correction because the person applied through the disregard scheme while the other set does not, they might wonder whether that implies some form of guilt or a difference in some way.
That issue notwithstanding, I am happy to check with the SCTS how it would seek to achieve that. If there is a mechanism by which it is happy to make corrections to national records to highlight such matters, I am happy to support it in doing so.
Okay—thank you for that.
To follow on from Mary Fee’s question, the SCTS raised some concerns with us regarding extract convictions and how we reach an agreement on the sharing of especially sensitive information. Do you have any comments on that, cabinet secretary?
I cannot give you any more information on that, but we are engaging with the SCTS to address any concerns and ensure that there is a mechanism by which we can access the appropriate information. At this stage, I can say that I hope that we will be able to address those concerns and allow the disregard scheme to be applied.
On the issue of sharing sensitive information, you mentioned earlier that there is an agreement across a number of European Union countries on sharing some sensitive data, especially in relation to child sexual abuse, as well as to human trafficking—I think that that is right.
It could be, yes. Through Europol and so on, we exchange information with a range of jurisdictions across Europe. I think that your question relates to Disclosure Scotland and the information that it can access from other jurisdictions.
Yes. Do we have any reassurance that Brexit will not affect that?
To be honest, I do not know what reassurance I can give you about Brexit one way or the other. I suspect that the scheme that is in place will have some European provisions around it, although it applies to only 12 countries at present, so it is not pan-European in the sense that it covers all member states of the European Union. I will need to check whether there is going to be an impact. There is absolutely no doubt that the exchange of criminal information post-Brexit will be more challenging than it is at present. The nature and extent of the challenge will vary depending on what the final outcome is, but there will be challenges.
You can see why elements of the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill will be of interest to the committee in relation to such issues and to equalities and human rights in general.
Absolutely. We need to consider things such as the European arrest warrant, which provides for fast-track extradition. Extraditions are normally dealt with through treaties, and the previous treaties with EU countries have since become extinct, so if we could not use the European arrest warrant, we would be back to making treaty arrangements. The timeline for extradition under treaty arrangements is much longer—in the cases that I normally deal with, it can take about nine months—whereas the European arrest warrant is used and executed within about 40 days. The process is much quicker. There is no doubt in my mind—as I have set out previously in Parliament—that there will be significant consequences for our criminal justice system as a result of Brexit. A key part of that will involve the flow and exchange of information.
That is a much bigger topic for another committee session—in fact, it is probably one for many committee sessions to come.
I have a final question. The committee wrote to Disclosure Scotland to ask what action that organisation could take to highlight on the application form for a disclosure that people might have the right to have their conviction disregarded. Disclosure Scotland already holds some of the relevant information, and we want to increase awareness of the scheme. We received a very quick and incredibly positive response from Disclosure Scotland, which listed a number of areas, including sharing and gathering of information and raising awareness of the legislation, on which it believes that it can work very effectively. Are you aware of that response to the committee? If so, what work are your officials doing to realise some of the aims that it sets out?
We have a copy of the letter that the committee received from Disclosure Scotland, which is very helpful. I will certainly encourage Disclosure Scotland to work to support the implementation of the bill and to put in place provisions to highlight the issues that you raise. That is one of the ways in which we can ensure that the scheme is brought to the attention of people who might want to think about applying. Public information campaigns only go so far, and highlighting the information to individuals could be very useful.
We have eventually exhausted our questions to you, cabinet secretary. We are working on our stage 1 report, and we will get it to the Government as soon as it is completed. We are grateful for your evidence, and for the support from your officials during stage 1 of the bill process.10:58 Meeting continued in private until 11:15.
1 March 2018
1 February 2018
8 February 2018
1 March 2018
What is secondary legislation?
Secondary legislation is sometimes called 'subordinate' or 'delegated' legislation. It can be used to:
- bring a section or sections of a law that’s already been passed, into force
- give details of how a law will be applied
- make changes to the law without a new Act having to be passed
An Act is a Bill that’s been approved by Parliament and given Royal Assent (formally approved).
Delegated Powers and Law Reform committee
This committee looks at the powers of this Bill to allow the Scottish Government or others to create 'secondary legislation' or regulations.
It met to discuss the Bill in public on:
19 December 2017:
Read the Stage 1 report by the Delegated Powers and Law Reform committee published on 20 December 2017.
Debate on the Bill
A debate for MSPs to discuss what the Bill aims to do and how it'll do it.
Stage 1 debate on the Bill transcript
The Deputy Presiding Officer (Linda Fabiani)
The next item of business is a stage 1 debate on motion S5M-11659, in the name of Michael Matheson, on the Historical Sexual Offences (Pardons and Disregards) (Scotland) Bill.14:47
The Cabinet Secretary for Justice (Michael Matheson)
I am struck by the progress that we have made as a society in advancing the rights of lesbian, gay, bisexual, transgender and intersex people in Scotland over a very short period. There is no doubt that such progress needed to be made, and I am pleased that the Historical Sexual Offences (Pardons and Disregards) (Scotland) Bill is a further sign of progress being made.
It might seem astounding to younger people today that it was in 2001, within this Parliament’s lifetime, when consent for same-sex sexual activity between men was equalised with that for different-sex partners at the age of 16, or that it was only in 1980, which is well within the memory of many of us in the chamber, that same-sex sexual activity was decriminalised, but even then only where both parties were aged over 21.
Those legal changes have been accompanied by considerable shifts in social attitudes over the same period. In 2000, nearly half—48 per cent—of respondents to the Scottish social attitudes survey said that same-sex relationships were always or mostly wrong. When the same question was asked in 2015, the percentage of those who responded in that way fell to 18 per cent. That is a reminder of how far we have come—and that there is still a way to go.
Until we live in a country where no one suffers discrimination, prejudice or fear because of their sexual orientation or gender identity, we have work to do. However, we should not overlook the fact that there are people who continue to suffer as a result of the discriminatory laws that, sadly, parliamentarians in Scotland over many decades supported, or at least accepted without taking steps to get rid of them.
Although there is nothing that the Parliament can do to reverse the injustices that were experienced by those who, for years, lived with the fear of criminal prosecution simply for showing love and affection to their partner, the Historical Sexual Offences (Pardons and Disregards) (Scotland) Bill is intended to deal with the real-life impact on people’s lives that those discriminatory laws can continue to have.
The bill is concerned with historical sexual offences that criminalised same-sex sexual activity between men. It covers two distinct kinds of offences: those that were in and of themselves discriminatory, such as the offence in section 7 of the Sexual Offences (Scotland) Act 1976 that specifically criminalised sexual activity between men; and those that were more general in nature, but which were capable of being used in a manner that discriminated against men who engaged in same-sex sexual activity, such as the common-law offences of shameless indecency and breach of the peace.
The bill makes provision in two separate but connected areas. It provides a pardon to people who were convicted of historical sexual offences that criminalised sexual activity between men for activity that is now legal, and it puts in place a scheme to enable a person who has been convicted of a historical sexual offence to apply to have that conviction disregarded so that it will never be disclosed, for example as part of an enhanced disclosure check.
The bill provides that a person who has been convicted of a historical sexual offence is pardoned for that offence if the conduct for which they were convicted would not be an offence if it occurred in the same circumstances on the day on which the bill comes into force. For example, if a person was convicted of an offence under the Criminal Justice (Scotland) Act 1980 for engaging in consensual same-sex sexual activity with an 18-year-old man at a time before the age of consent was reduced from 21 to 18, which happened in 1995, or before it was equalised at 16, which happened in 2001, he would be pardoned. If, on the other hand, a person were convicted of the same offence for engaging in sexual activity with a 14-year-old child, he would not be pardoned, because such conduct remains criminal.
The pardon is automatic. It is also symbolic. It does not reverse the conviction, but it lifts the burden that is associated with the conviction and it represents formal recognition that the person should never have been punished.
I want to say a little about why, although the pardon is important, it does not tell the whole story. When the First Minister made her statement to Parliament on 7 November last year when the bill was introduced, in apologising to those whose lives were affected by the unjust and discriminatory laws that I have mentioned, she said that although a pardon was the correct legal response to apply to such convictions, the term “pardon” could be interpreted in such a way as to imply that Parliament saw the men affected as being pardoned for something that they had done wrong. We should make it absolutely clear that that is not the case here.
For people who were convicted of offences for engaging in same-sex sexual activity that is now legal, the wrong has been committed by the state, not by those individuals. That is why the Government and Parliament made a statement of unqualified apology. That apology is an essential part of the overall scheme to acknowledge the wrongfulness of those convictions, which includes an apology, a pardon and, of course, a disregard.
It is important that we recognise that those who were convicted for engaging in same-sex sexual activity can continue to suffer discrimination as a result of those convictions. It is highly likely that any such conviction would be spent under the terms of the Rehabilitation of Offenders Act 1974 and would not normally require to be disclosed when a person is applying for a job or a voluntary role.
Kezia Dugdale (Lothian) (Lab)
The cabinet secretary has often referenced the phrase “sexual activity”. Does he acknowledge that sometimes what we are talking about is men kissing in public or even the act of men just chatting each other up, which somehow has been defined over history as “sexual activity”? Does he understand how abhorrent that has been for communities in the past?
I recognise that. That is the very reason why the term “sexual activity” in the bill has been broadened out to ensure that it covers the type of activity for which people were criminalised, which is distinct from the approach that has been taken in the legislation in England and Wales.
There is a risk that although such convictions will now be many years old, they could continue to be disclosed when a person is applying for a role working with children or vulnerable adults, for example, for which an enhanced disclosure check is required, as such a check includes information about any spent convictions.
The disregard scheme will enable a person with a conviction for a historical sexual offence that criminalised same-sex sexual activity between men that is now legal to apply to have the conviction disregarded, so that that information about that conviction would not show up in any disclosure check.
Although the pardon is symbolic in manner, the disregard scheme has a real and beneficial effect. It might be helpful if I set out in general terms how the scheme will operate. The bill sets out the information that a person applying to have a conviction disregarded should provide in their application. If the bill is passed, when the scheme comes into operation we will have a standard application form and associated guidance to assist people to make an application, which we will develop in conjunction with key stakeholders such as the Equality Network to make the process as straightforward as possible.
Ministers are required to take reasonable steps to obtain and consider any record of the investigation of the conduct that led to the conviction and any subsequent proceedings relating to that conduct. We anticipate that when the Scottish Government receives an application, in the first instance we would make a request to Police Scotland for information that it holds about a person’s convictions. In some cases, the information that Police Scotland provides might be sufficient in itself to determine the application. In other cases, it might be necessary to seek any information that other bodies such as the Crown Office and Procurator Fiscal Service and the Scottish Courts and Tribunals Service might hold about the particular case.
Jamie Greene (West Scotland) (Con)
Will the cabinet secretary ensure that all attention is given to ensuring that the process is as simple, easy and straightforward as possible? Much of the evidence that we heard was that we can learn from other systems in the United Kingdom so that our process really gets it right for people.
As I have said, I am very keen to make sure that we simplify the process as best we can, while at the same time ensuring that we capture the necessary information in order to give due consideration to any application for a disregard.
The engagement that we will have with a number of stakeholders around the development of the application form will assist us in making sure that we try to get that balance right. We want to try to prevent bureaucracy from getting in the way of someone considering making an application. That relates not only to the application form that they have to complete but to the guidance that goes alongside it, which should be as straightforward as possible to allow people who are considering making an application to complete the process.
The bill provides for a presumption in favour of granting a disregard when one is being considered. Ministers will have a duty to grant the disregard, which will be displaced only if it appears to them either that the conviction is not actually for a historical sexual offence at all, but is instead actually a conviction for shoplifting or assault, for example, or that it is for an act that remains illegal today, because it involved sexual activity with a child under the age of 16 or non-consensual sexual activity, for example.
The bill provides that, where a disregard is granted, any “relevant record keeper”—that is, any organisation holding information about a conviction that could be used in any kind of disclosure check—must remove reference to the disregarded conviction and
“give notice of the removal to the person who has the disregarded conviction”.
It also provides that, where a disregard is granted, the person
“is to be treated for all purposes as not having ... committed the offence”
and not having been charged with, prosecuted for, convicted of or sentenced for it. That means that, if asked about it, the person would be under no legal obligation to disclose such a conviction. If, for example, a potential employer were to find out by word of mouth that an applicant had such a conviction, it would not be lawful for them to discriminate against the applicant because they had that conviction.
I am under no illusion that the bill—or any legislation—can, in itself, right the massive injustice that has been caused by discriminatory laws that criminalised the act of loving another adult, that deterred people from being open about who they were to family, friends, neighbours and work colleagues, that sent a message that Parliament considered that homosexuality was wrong and that encouraged homophobia and hatred. However, through the pardon, the bill sends a clear message to those who were affected by those laws that they were unjust. Through the establishment of a disregard scheme, we can ensure that people do not continue to suffer discrimination as a result of such convictions being disclosed to potential employers or to organisations for which they wish to undertake voluntary work.
That the Parliament agrees to the general principles of the Historical Sexual Offences (Pardons and Disregards) (Scotland) Bill.
The Deputy Presiding Officer
I call Christina McKelvie to speak on behalf of the Equalities and Human Rights Committee.15:02
Christina McKelvie (Hamilton, Larkhall and Stonehouse) (SNP)
It is indeed a privilege to speak in today’s debate as the convener of the Equalities and Human Rights Committee. I thank all the witnesses who provided written and oral evidence to the committee to allow us to undertake our stage 1 scrutiny of the bill. Our thanks also go to the clerks who, as ever, supported us in our work to the highest of standards, for which we are very grateful. I especially want to thank those individuals who provided evidence about their personal experiences. Above all, I wish to express the committee’s gratitude to two witnesses who met us privately and spoke movingly about the impact of historical convictions on their lives. We were privileged that they saw fit to share their stories with us, and it was those stories that helped us to come to the recommendations that we made. I also offer my thanks to the LGBTI organisations that, over a long time, have laid the groundwork that has enabled us to debate this legislation today.
The Scottish Parliament has a proud reputation of working to create a more just, equal and fair society for all the people of Scotland. That includes addressing the mistakes of the past and lifting the burden of discrimination from those who have experienced it. Today, we take another step along the journey towards building a truly equal Scotland for all. Alongside the apology that was made by the First Minister in November 2017, the bill recognises that gay and bisexual men in Scotland were unfairly criminalised by our laws and that the shadow of discrimination cast by those laws still falls across their lives today. However, the pardon granted by the bill not only seeks to put right that wrong; it confirms that those men—whether they are still living or now deceased—did nothing wrong. They were the victims and not the perpetrators; the crime was society’s and not theirs.
The committee began taking oral evidence on the bill on 1 February, which, appropriately, coincided with the start of LGBT history month. It was a good start for us as well. Today, it might seem that the laws that discriminated against LGBTI Scots, and especially gay men, were consigned to the history books some time ago. However, we know that that is not true. Indeed, it is worth reminding ourselves of just how recently such laws still existed. The 19th century American inventor Joseph Francis, who designed the forerunner of the modern lifeboat, once remarked:
“As long as society is anti-gay, then it will seem like being gay is anti-social.”
Such progressive views were rare in the 19th century. In Scotland, as elsewhere, there was a society in which homophobia was deeply engrained and often enshrined in our criminal laws. What marked us out in our attitude was how long consenting same-sex relations between men remained a punishable criminal offence under Scots law. Many of our European neighbours abolished their main criminal statutes on male same-sex relations long before us. For example, France reformed its law in that area in 1791 and Belgium followed suit in 1795; the Netherlands did so in 1811 and Italy in 1890. Most of our Scandinavian neighbours changed their laws on male same-sex relations after world war two. Of course, that does not mean that homophobia was not widespread in those countries, but consenting same-sex relations between men were not seen as a criminal act in the eyes of their law.
To say that Scots and English law lagged behind that of our European neighbours in that regard would be an understatement. In 1889, Scots law was the last legal jurisdiction in Europe to abolish the death penalty for the crime of sodomy, replacing it with a sentence of two years in prison with hard labour. It was only in February 1981 that the law in Scotland changed to decriminalise, partly, same-sex relations between men; the change applied only to men aged 21 and over. Although the age of consent for heterosexuals in Scotland has been 16 since 1885, it was not until 2001 that the age of consent for relations between men in Scotland was set at 16. Remarkably, it was only in December 2013 that the very last anti-gay terminology was removed from the law in Scotland—that was just under four and half years ago. Whether it was the unequal age of consent or the damage that was caused by laws such as section 28 of the Local Government Act 1988, our LGBTI fellow Scots suffered unfair treatment under our laws for far too long.
The committee made various recommendations in its stage 1 report about how the pardon and disregard scheme that is proposed under the bill could be improved on. My fellow committee members will speak to some of those recommendations during the debate from their own areas of expertise. However, in the time that I have left, I will focus on two key themes that emerged from our scrutiny. First, as a society, we must never take for granted the progress that we have made in tackling discrimination—that is why the bill matters. It matters because it will help to improve the lives of men with unfair historical convictions by allowing them to have those convictions removed from their records. The disregard process will remove the discrimination that those men face when applying for certain jobs, serving as volunteers in their local communities or, in some cases, serving in the armed forces; I hope that one of my fellow committee members will pick up on that later. However, the bill also matters because it is a statement of principle; it is a statement of the kind of society that Scotland wants to be today and seeks to be in the future. That is why the Scottish Government must work to promote understanding of the bill as widely as possible and encourage all those men with a relevant historical conviction to apply for a disregard.
We heard from witnesses that similar legislation in England and Wales has resulted in a very low number of disregard applications. That is partly because the English system is more limited in the range of offences that it covers and partly because of confusion about the effect of a pardon and the belief that it automatically removes an offence from someone’s records, which it does not—that is the role of the disregard process. However, the scheme that is being established in Scotland will cover a wider range of criminal offences under which gay men were convicted, such as loitering. Those offences are not currently included in the system in England, but I believe that England is looking at how we will roll out our system and I hope that more progress will be made on that as time goes on.
It will be vital for the success of the bill that the Scottish Government works to ensure that it is clearly understood. That is why the design and operation of the disregard application process is of central importance, and why I agree with the point that was made by my colleague Jamie Greene in his intervention on the minister on why that process has to be clear.
First impressions matter, so the first impression that an applicant has of the disregard scheme will determine how many men seek to apply in Scotland. Someone’s first impression must not be that they have to fill in an off-putting application form, as is the case with the current Home Office application scheme in England; neither must their experience be one of confusion over the level of information that might need to be provided about a historical conviction.
Daniel Johnson (Edinburgh Southern) (Lab)
I agree with the member’s points about the importance of the simplicity of the system. However, does she agree that awareness of the system is equally important, given that people must apply to it? Does she agree that the minister should comment on that further when he sums up at the end of the debate?
I know that other colleagues will raise that very point in the debate this afternoon, and I am about to go on to that, so Mr Johnson’s intervention was well timed.
The applicant must be able to seek advice and support. It came through clearly in the evidence that we took that people want a system that is not onerous, and one that is clear. They also want a system that allows them to gather the information that is required, which should be as simple as possible. The information that is required for a disregard can be sought in due course, and the first step in the application process must be as user friendly as possible. That came through very clearly in the evidence that we took.
Bad experiences could generate bad word of mouth about the scheme, which, coupled with confusion about whether it is as limited as the English scheme, could persuade some men in Scotland that it is not worth applying for a disregard. We do not want that to happen. To avoid that situation, the committee recommends that the design of the application process be user led, and we would like the cabinet secretary to comment on that when he sums up. Key LGBTI organisations in Scotland should play a greater role. We know that the cabinet secretary has committed to that, but we want to impress on him that they should play a leading role in the design and delivery of the application system for a disregard.
The Equalities and Human Rights Committee is proud to play a part in helping to put right this historic wrong. We are proud that we have a unanimous report to put to the Parliament today, and we are proud to back the general principles of the Historical Sexual Offences (Pardons and Disregards) (Scotland) Bill.15:11
Annie Wells (Glasgow) (Con)
I am extremely grateful for the opportunity to mark my support for this milestone bill at stage 1, particularly as I have followed its development as a member of the Equalities and Human Rights Committee.
Following the party leaders’ statements last November that offered an unequivocal apology to gay men who had been convicted of sexual offences that are no longer illegal, I think that we have all been struck by the poignancy of a bill that seeks to officially mark and right the wrongdoings of the past. The Historical Sexual Offences (Pardons and Disregards) (Scotland) Bill is a landmark bill, and it is important that we spread the message of exactly what it is about, not only so that those who are affected can receive the justice that they deserve, but also because of the important signal that this will send out regarding Scotland being a world leader in LGBTI equality.
Importantly, the bill seeks not to erase from history the injustices that took place, but rather to give comfort to those who are affected, including in some cases their friends and family, and to provide an opportunity for them to really move on with their lives.
Alex Cole-Hamilton (Edinburgh Western) (LD)
Does the member agree that it is important that we do not erase this history because to do so would be to create a revisionist history? We need to remind future generations of this stain on our national conscience.
I absolutely agree with the member’s comments. We should not erase history. It is important for future generations to be able to see what history was like.
We do not want to rewrite history. For some, the discriminatory legislation changed the course of their lives irreversibly. As was pointed out during the committee’s evidence-taking sessions, many who have been affected have, sadly, taken their own lives, and some have spent time in prison. We cannot account for the numbers of men who, to this day, may have chosen a different path in life altogether had they been given the choice. I am sure that, for everyone—most of the men will be in their 50s and upwards—the mental scars will remain.
If we look at the bill in the context of the journey towards LGBTI equality, it is hard to believe that these discriminatory laws existed within the living memories of most of us in the chamber today. Amazingly, same-sex sexual activity between men was an offence until 1980, regardless of whether it took place in public or in the private home, and it was not until 2001 that the age of consent was reduced to 16 and made equal to the age of consent for opposite-sex relationships.
In the period in between, men could still be prosecuted for activities such as kissing in public and chatting up other men. Kezia Dugdale alluded to that. During a private evidence session, we heard from an anonymous witness who, in the early 1990s, was charged with intent to commit a homosexual act in a public place, having kissed a man in the street at the age of 20. It is astonishing, now, to think that gay men were persecuted and criminalised in that way, simply because of their sexuality.
That is why the bill is so important. It provides an opportunity to draw a line under those laws, by offering a pardon to the men who were affected and by giving those who were convicted an opportunity to have the offences disregarded.
It became apparent during the committee’s evidence sessions and research around the issue that compensation is not being widely sought. Rather, what is sought is the symbolic acknowledgment that the laws themselves were discriminatory.
As we build on the legislation south of the border, it is important that the bill offers a pardon to all those affected, living and dead, and that it is clear that the provisions will apply only if the relevant conviction is for something that is no longer a crime. I sincerely hope that that can provide some comfort to those affected.
Although discriminatory laws have been repealed, the burden of a criminal conviction can linger on, as we know. Police Scotland identified 1,261 offences, recorded against 994 people, that fall within the scope of the bill, and the number is likely to increase. Although it is overwhelmingly likely that such convictions will be spent, convictions can be revealed when someone applies for a role for which a higher-level disclosure is required.
As the committee heard during its evidence sessions, convictions can have a detrimental impact on peoples’ lives. Witness A talked about how a conviction had hindered his career, and witness B talked about the embarrassment that a conviction had caused in the context of his work with voluntary groups. It is absolutely right that the bill will introduce a system whereby those with convictions can apply to have them disregarded. I sincerely hope that that will lift some of the burden of conviction.
On that point, there is more that we can talk about and discuss as the bill progresses. During the committee’s meetings it became clear that work would have to be done to advertise the existence of the disregard process and make abundantly clear that, despite the pardon, people will still have to go through the separate process of applying for a disregard.
During evidence, a witness told us that he had asked a couple of his friends about the bill and they had known nothing about it. We cannot assume that the information will naturally disseminate among the wider public. We need to be proactive in publicising the bill, recognising that not all gay men—particularly in more remote areas—are linked in with LGBTI groups.
Furthermore, there is some way to go to iron out the manner in which convictions will be removed from all official records, such as those of organisations that do not hold criminal records. For example, National Records of Scotland, the national health service and employer groups might hold the information.
Of course, we still have a long way to go. As we saw in the committee’s work on prejudiced-based bullying, there is much work to be done. Like other members, I was proud to support the time for inclusive education campaign’s work to introduce LGBTI education into our schools. LGBTI hate-crime statistics remain worryingly high, and LGBTI people are still persecuted around the globe. Gay relationships are still criminalised in 72 countries across the world.
I reiterate my support for the bill at stage 1. Its importance, for the people who are affected and as a marker of progress in societal attitudes, cannot be overestimated. As Ruth Davidson helpfully put it, this is one jigsaw piece in the fight for true LGBTI equality, but it is a very large one.15:18
Mary Fee (West Scotland) (Lab)
As a member of the Equalities and Human Rights Committee I am extremely grateful for the opportunity to open, for Scottish Labour, this afternoon’s debate on the Historical Sexual Offences (Pardons and Disregards) (Scotland) Bill.
I take the opportunity to express my gratitude to the men who gave evidence to the committee. Their testimonies were revealing and brave, so I thank them. The evidence on the impact that criminalisation has had on their lives, and on the shame and confusion that they have suffered, brought the bill to life and gave the committee a real understanding of the impact of criminalisation and the importance of the bill.
I also thank my fellow committee members and the committee’s clerks for their assistance and support throughout, in helping to pull together our various evidence sessions, discussions and recommendations to produce our stage 1 report. I am pleased to see that there is a clear consensus on the bill among members of all political parties.
The Historical Sexual Offences (Pardons and Disregards) (Scotland) Bill is significant because it explicitly acknowledges the historical wrongs of the justice system and seeks to provide a means of redress against the hateful and intrusive discrimination that was experienced by gay men in Scotland as a result of all sexual activity between men having been, prior to 1981, criminalised.
In Scotland, we are often eager to portray our country as a beacon of egalitarianism and inclusivity. That is a worthy aspiration and vision, but we should not forget our nation’s history and wrongdoings. As recently as 1980, men in Scotland could be prosecuted because of their sexual orientation: a man could be prosecuted for expressing his love for another man. All forms of sexual activity between men were deemed to be illegal, and there was a curb on all expressions of affection, including kissing in public places, which could be prosecuted because it was classified as “gross indecency”.
Under that repressive and regressive legal system, the courts in Scotland criminalised and discriminated against thousands of men on the basis of their sexual orientation. That was, I say unequivocally, wrong. No one should be criminalised for their sexual orientation or for expressing their love for someone who has the same gender identity. The legacy of convictions, cautions, warnings and fines that resulted from discriminatory laws that prohibited sexual activity between men has had an enduring, hurtful and damaging impact on thousands of men’s lives. It was right for the First Minister to offer an unqualified and unequivocal apology to those men for those wrongs.
I am glad that the Historical Sexual Offences (Pardons and Disregards) (Scotland) Bill has a broad scope that addresses some of the more problematic elements of the equivalent legislation in England and Wales. Stonewall Scotland has highlighted that our proposed legislation is stronger and more accessible and appropriate than its equivalent in England and Wales, with our proposed legislation ensuring that the pardon will apply automatically to all people who have the specified conviction, whether they are living or have passed away. That is important: in England and Wales, the legislation grants a pardon only to men who died before 31 January 2017, which means that men who are still alive must apply for a statutory pardon. As a result, only a small percentage of living men with discriminatory convictions in England and Wales have applied for and received a pardon.
Despite its eminent strengths, I hope that the Scottish Government will provide additional clarification about the disregard system. It is vital that the Scottish Government take the lead in establishing for the disregard system a framework that is uncomplicated, easily accessible and supportive of all men and of the families of deceased men who will engage in the process.
Does Mary Fee agree that Disclosure Scotland has an important role to play in advertising the provisions of the bill and application of the process, through written and online media? If Disclosure Scotland could take the lead on some of that, it could target the information much more effectively.
I absolutely agree with Christina McKelvie. Disclosure Scotland has an important—almost pivotal—role to play in terms of the legislation and how the disregard system will progress.
In establishing a framework for the disregard system, the Scottish Government should guarantee sufficient financial resources for that purpose. Without a properly established, structured and funded framework for the disregard system, there is a real danger that the aspirations for the bill will not be reflected in reality.
We also need to be sure that adequate support is provided both for men and for their families. Many men will not have spoken about their convictions, and reliving the trauma might be very distressing for them, their partners and their families.
An area that I explored throughout our evidence sessions was that of family members seeking redress on behalf of a deceased relative. I understand that the pardon will apply to deceased men, which is important, but there might be circumstances in which a family wants more than a symbolic pardon. I understand the difficulties surrounding the issue, but I would be grateful if, as the bill progresses, the Government could explore ways to assist family members in that regard.
I fully appreciate that the bill, by offering an automatic pardon and the opportunity to apply for a disregard, cannot undo the bullying, discrimination, harassment and victimisation that have been experienced by gay men, and cannot mitigate the damage that was done to their families. However, with regard to the men and the families who have been affected, I truly hope and believe that the bill can be a significant step in the process of reconciliation, by admitting the justice system’s wrongdoings and discriminatory treatment of gay men, and by giving them a legal pardon as acknowledgement of their innocence.
Too often, we focus on the positive contribution that Scotland has made to the world. Today is a time to reflect and to be open in acknowledging and accepting the wrongdoings of the past.
I once again reiterate my full support for the Historical Sexual Offences (Pardons and Disregards) (Scotland) Bill, which is an important part of the process of redressing the historical discriminatory treatment of gay men. It is right that we acknowledge the historical wrongs that have been committed. Only through acknowledging historical wrongs can we endeavour, as one Scottish Parliament, to work towards our common goal of creating a modern Scotland—a nation that celebrates our diversity, promotes inclusivity and strives for equality.15:27
Patrick Harvie (Glasgow) (Green)
I commend the Government for its bill and the committee for its work in leading scrutiny of it. It is an important step in a long journey. At a moment such as this, I—as someone who has been out, in my job as an MSP—am particularly aware of the debt that I owe to those who faced much greater risks than I have faced when they took their much earlier steps on this journey.
By the time I came out, when I was a young man, it had been nearly 10 years since decriminalisation had begun in Scotland. There were debates at Westminster on equalising the age of consent—proposals for equality that were rejected by MPs at that time—and it was just a few years since section 28 had been created. There has been much progress, but it has been by no means an easy or straightforward journey, and the case for equality has been fought against every step of the way.
To date, the Scottish Parliament has never actively voted against equality for our lesbian, gay, bisexual, transgender and intersex citizens. However, equality for those diverse communities is still seen as being optional, in our political landscape. Indeed, many MSPs who have repeatedly voted for discriminatory laws are still here today.
As we take this important step, it is important that we make the statement that underpins it mean something. All of us should go back to our political parties and insist that prejudice and discrimination against LGBTI people should be no more acceptable in our policies or our candidate selection than racism, antisemitism, sectarianism or any other form of bigotry. If that action accompanied the passing of the bill, that would make the statement more meaningful.
I will offer a couple of recollections from my time as an LGBT youth worker in Glasgow. Before I joined Parliament, one of the last pieces of work that I did in that job was a timeline exercise that was to be part of a training pack for mainstream youth workers on dealing with LGBTI issues. In the exercise, people drew a card that showed a statement, a moment from history or an image, and the challenge was to place the card on the timeline, which ran from a cave painting from 8,000 BC. The most recent event was the German Government issuing a formal apology to the people who were persecuted for their sexual orientation during the Holocaust.
I trialled the timeline exercise with the young out LGBT people in my youth group. When somebody drew the card that referred to decriminalisation of male homosexuality, the overwhelming reaction was puzzlement and bafflement. Those young people were growing up without the idea of criminalisation in their heads. In many ways, that was a failing in our teaching of history, but the idea that those young people were growing up without the notion that their lives could ever have been made criminal represents an extraordinary liberation.
A second recollection from that period is about a guy who came into the Glasgow Lesbian and Gay Centre—that was the organisation’s name before it added the extra words from the acronym that we are familiar with today. Many people dropped into the centre on spec to access services or to meet somebody. That guy was taking his first steps and having his first experience of coming out to anyone in the world, and he was in his late 70s. His mother had just died; he had been brought up in a strict religious environment and he had never had any sense or expectation that he would be able to explore or express that aspect of his personality or his sexuality. That, in his late 70s, was that first moment.
We can apologise for wrong that was done, agree pardons and disregards, and change the law to prevent future injustice, but we cannot change history. Not only that man—who might regret never having had the chance to do something that would have even risked wrongful arrest at that time, because that aspect of his life simply never came to exist—but many others who are younger than him will never know what it is like to grow up in a society in which they are valued, respected, validated and safe.
I do not want to overly romanticise all this. It is not all about victimhood, because the identities, communities, cultures and subcultures of queer people down the ages have often been defined in response to, and in defiance of, legal and cultural persecution. That story is painful and harmful, but it is also a story of strength and creativity, and I do not want that part of our history to be forgotten, either.
I have two final comments to make. I understand entirely why it is easy to fall into using language such as, “It’s wrong that people face prosecution for who they loved”. To be sure, it is, but maybe they were just having sex. We need to guard against moving from being anti-gay to being anti-sex. Sex does not need to be validated by love. It is wonderful if people want and have a loving relationship—or more than one—in their life, but it is also wonderful if they want and have a good sex life, too. They should not need anybody’s pardon for that, either.
I will reflect on a comment that the Prime Minister made this week when addressing the Commonwealth heads of Government. The Prime Minister is someone whom I disagree with on a great many issues, but she is also someone who has had the chance to reflect and has recognised that she got it wrong on LGBTI equality issues in the past and needs to acknowledge that. In acknowledging the British empire’s history of imposing many discriminatory laws in other countries, she said:
“These laws were wrong then and they are wrong now.”
This is part of a global challenge, as well as one in history, and it must form part of our international engagement. I urge the Government to present a copy of the bill to our guest, the President of Malawi, at his visit later this month, and to discuss the issues with him.
The Deputy Presiding Officer (Christine Grahame)
I have given members a bit of leeway for opening speeches because we have some time in hand, but I cannot give too much—that is not to scold you, Mr Cole-Hamilton, before you even start. As you are opening for the Liberal Democrats, I will give you a bit of leeway, as I did to the Greens—I am fair.15:35
Alex Cole-Hamilton (Edinburgh Western) (LD)
It is my great privilege and pride to open for the Liberal Democrats on what is, in many ways, a historic day, and to speak in my capacity as deputy convener of the Equalities and Human Rights Committee, which has brought the legislation to this point.
When I was little, my grandfather got involved in amateur dramatics. He was not very good, but I mention it because the role that I best remember him playing was that of a judge in a play called “Breaking the Code”, about the life and trial of Alan Turing. It was important to my grandfather because he had always thought of Alan Turing as a national hero. He felt that Alan Turing’s intelligence work at Bletchley had turned the tide of the war in the north Atlantic, where my grandfather was an officer on a destroyer. My grandfather felt that, despite his heroism, Alan Turing was terribly ill used by the British establishment and the judiciary and that what happened to him ultimately brought about his destruction.
It is absolutely right that we grapple with this today and I am grateful to the Government because the bill is an opportunity for us as a Parliament to say to those men who felt compelled to live in the shadows because of who they were, “Step forward. Step forward and receive the justice that has been denied to you; this nation is profoundly sorry for the harm that it has done you.”
This has been an amazing bill to be part of. I have really enjoyed the work of our committee as we grappled with it, because the story of Alan Turing is reflected in the stories of thousands of men across these islands, both alive and dead, and each of them is steeped in persecution, in wrongful arrest, and sometimes in tragedy, and this is an opportunity for us to right an historic wrong.
I pay tribute to the work of my fellow committee members, the clerks and the Scottish Parliament information centre researchers and to the many people who gave us evidence, in particular the LGBT rights organisations such as Stonewall, Tim Hopkins from the Equalities Network, who gave us an amazing discourse on the history of this legislation and what we could and could not do about it, and the two gentlemen who have been referred to, who gave evidence in private.
We learned early doors that we could not just give an automatic disregard to everybody to whom this applies, for the reasons that the cabinet secretary outlined. It is just too difficult to infer what was meant by “breach of the peace” or by “gross indecency” when that offence was handed out, so it must be done through a process of application. However, I would like to associate myself with the remarks of other members in the chamber, who said that we should strive, in the implementation of the bill, to make that process far easier and less intrusive than it has been in other parts of the British isles.
We also learned that although there is indeed an understandable impulse to delete this entirely from our records, it would have the effect of creating a revisionist history, as I commented when I intervened on Annie Wells. This is a stain on our national conscience; it is part of our fabric, and we need to remind future generations of what went before and the suffering of those affected.
We learned about the work of other countries and I particularly want to refer to Germany, because I was very struck that not only does it offer a pardon and a disregard, but it gives out a certificate and makes a compensation payment of a minimum of €4,000 in each case. I explored the issue of compensation at every stage of our evidence-gathering process. I was keen to pursue it and, given that we are talking about only 50 or so men coming forward in the Scottish context, offering them financial recompense should not be too onerous for the Scottish Government.
However, I and the rest of the committee were struck and indeed humbled by the quiet indifference of those people giving us evidence. Compensation is not what this is about for them. It had simply never occurred to many of them, which is a measure of their characters and the humble stoicism that they exhibited. In fact, one of the men who gave evidence in the private session generated a peal of laughter when I asked him whether he felt that compensation should be offered; without missing a beat, he said that we could start by paying back the 40 shilling fine he got for loitering in a public toilet. To offer compensation would create a subjective hierarchy of suffering. It is not what organisations or individuals are looking for; they are looking only for justice.
I will refer to the work of other members, in particular, Mary Fee. I was very struck by her line of questioning about how to extend posthumously the disregard element of the bill, so that a family can seek the same level of justice that living people can attain.
I thank Jamie Greene, in particular for his work around the armed forces and his line of questioning about the Ministry of Defence. In the armed services, many men were stripped of commissions and rank and subjected to all kinds of abuse because of their sexuality. We were gratified to receive a detailed response from the Ministry of Defence, which represents an open door that I am sure that our committee will continue to push at.
This has been a lovely piece of legislation to work on—it is the kind of bill that we come to Parliament to do. It makes the heart sing. To meddle with it by amendment at stage 2 is almost irresistible for Opposition politicians, but I pledge to do very little of that unless it is in the context of what we have described with Mary Fee’s amendment.
I finish by thanking again my committee colleagues for this great experience. My grandfather would be proud of me for doing this, because he gave me my first insight into the persecution that the LGBT+ community has suffered in these islands. Today we go some way to righting that wrong.
The Deputy Presiding Officer
Alex Cole-Hamilton does appreciate that his commitment to non-meddling is now irrefutably on the record. We move to the open debate.15:41
Gail Ross (Caithness, Sutherland and Ross) (SNP)
As a member of the Equalities and Human Rights Committee, I have been honoured to play my part in taking the bill forward. As my fellow committee members are, I am grateful for the opportunity to speak in the debate and I thank everyone who has gotten us to this point.
For far too long, members of our LGBTI community were convicted under discriminatory law and considered to be criminals for conduct that was only illegal because of their sexuality. This bill will remove the remnants of this regrettable part of Scotland’s past.
It is welcome that attitudes towards LGBTI people continue to advance. Three years ago, the Scottish social attitudes survey showed that the percentage of people who viewed same-sex relationships positively has doubled this century from 37 per cent in 2000 to 69 per cent in 2015. There is still a way to go, but it is clear that this legislation is in step with popular opinion.
The bill has two important features that relate to historical sexual offences: pardons and disregards. We discussed both subjects in detail during the committee stage and I will discuss some of the aspects of both. During our committee work, Tim Hopkins of the Equality Network raised the concerns of some gay men about the use of the word “pardon”. He said that
“they were uncomfortable about being told that they were pardoned, because that implied that they had done something wrong”.—[Official Report, Equalities and Human Rights Committee, 1 February 2018; c 4.]
It is crucial that we make it clear that those men did nothing wrong. Of course, a pardon is the correct legal remedy to apply here, but we must all work as hard as possible to go beyond that. We must take every opportunity to explain that we are not excusing misconduct and misdemeanour; we are righting historic wrongs. As a Parliament, we should echo the sentiments expressed by the First Minister when the bill was introduced: we say to those who were wronged, you are not only pardoned but we are sorry.
The committee also heard compelling evidence in relation to the disregard process. One of the committee’s anonymous witnesses, who we are all, rightly, proud of, kindly shared his experience and discussed the difficulties that his conviction has caused in his working life. His story gets to the need for the disregard that is outlined in sections 5 to 11 of the bill. Because his job required protection of vulnerable groups checks—known as PVG checks—the witness had to undergo enhanced disclosure searches of criminal records. Those would not normally be a cause for concern but, in the early 1990s, our witness had kissed someone in the street. Members might have kissed someone in the street. They may have been on a date; they may have been greeting or leaving a spouse, a partner or a close friend. However, because this man was gay and the person he kissed was another man, he was convicted of intent to commit a homosexual act in a public place.
Every time that he has thought about applying for a new job or an internal promotion, he has had to ask himself, “Do I want to explain this all over again? Do I want to discuss my sexuality and my unjust conviction?” He and others in his position deserve to be able to get on with their lives without worrying about when they will next have to open up about a historical wrong that was enacted on them by the state.
As has been said, the committee took evidence on whether the disregard should, like the pardon, be automatic. Several witnesses stated that that cannot happen for a number of reasons. One is that some of the convictions that the men currently hold are for things such as breach of the peace or are under some obscure byelaw that hardly anyone has heard of. Secondly, we can disregard only things that are no longer crimes when the bill comes into force, which makes a blanket scheme impossible. Thirdly, some of the men simply want to forget that this ever happened to them and would not appreciate it being brought up on their behalf without any permission or warning.
We need to ensure that people are aware that they can apply for the disregard and that it is transparent and easy to access. A number of good points have been made on that already. We should remember that some of the men involved may not have exact times and dates or even know the nature of the offence. It is therefore vital that the disregard scheme is widely advertised and simple to use and that it is not adversarial. If we are to make people explain a wrong that was committed against them one final time, we have to ensure that the process is as painless as possible.
Thankfully, the discriminatory laws that created these criminal convictions have been relegated to Scotland’s past, but the convictions and their consequences endure. The bill will, I hope, go some way towards changing that. Its passage will remove the residues of an outdated law, banish the attitudes that justified it and enact legislation that is in tune with our vibrant and progressive Scotland. As I stated, the First Minister has apologised to the men, and our committee will now take forward the bill. I commend our report to the Parliament.15:47
Margaret Mitchell (Central Scotland) (Con)
I welcome the opportunity to speak in the stage 1 debate on the important Historical Sexual Offences (Pardons and Disregards) (Scotland) Bill, which has cross-party support. The bill is long overdue, acknowledging as it does
“the wrongfulness and discriminatory effect of past convictions for certain historical sexual offences”,
where the actions were carried out by consenting adult males. Put simply, those offences were totally without justification, and the Parliament is formally recognising that fact.
Part 2 of the bill automatically pardons men, living or dead, who were convicted of same-sex sexual activity that is now legal, and sets out the procedure for that. That is an important provision, especially for the families of men who were convicted and who have since died, as it serves to help give their relatives closure. However, despite the pardon and the repeal of the discriminatory laws, previous convictions still stand, which continues to have a negative impact on those with historical convictions. For example, a conviction could appear on a disclosure form relating to a job application. The bill therefore makes provision for the process of disregarding a range of relevant historical offences.
The Law Society of Scotland noted that the evidence from some of those affected by the discriminatory convictions has helped to ensure that the bill is comprehensive in its scope. The Law Society stated that the process to obtain legal aid, if required, should be
“as simple and well publicised as possible”.
The committee heard evidence from Police Scotland that the process for the disregards system needs to be “clear, efficient and quick”.
By enacting this landmark bill, the Scottish Parliament will send a powerful message not only to those living in Scotland but to the 72 countries that still criminalise same-sex relationships. Those include eight countries where homosexuality may result in the death penalty, including Iran, Sudan, Saudi Arabia and Yemen. That is a chilling reminder that there are still huge challenges to be faced in striving to secure equal rights for all, in Scotland and also beyond.
More specifically, at present, 37 of the 53 Commonwealth countries do not have legal rights for same-sex people. They include India, Pakistan, Nigeria, Kenya, Uganda, Sierra Leone, Cameroon, Botswana and Malawi, to name but a few. Scotland is an active participant in the Commonwealth Parliamentary Association. In particular, we have a special relationship with Malawi. There is, therefore, an opportunity to move forward, together with colleagues in the Commonwealth countries and within a climate of co-operation and mutual respect, to try to effect change.
It was therefore immensely heartening and encouraging that, in her address to the Commonwealth Heads of Government Conference in London yesterday, the Prime Minister raised this issue within the context of addressing barriers to fairness and opportunity by stating—
Will the member give way?
I am encouraged to hear Margaret Mitchell’s comments in this regard. She will be aware that the Commonwealth Parliamentary Association meets in Uganda next year. I am interested in what she thinks the Scottish Parliament’s role is in addressing LGBT rights in Uganda, which are getting worse at the moment.
It is very much as I just said. I hope to develop that in commenting on what the Prime Minister very eloquently and strongly said yesterday:
“discriminatory laws made many years ago continue to affect the lives of many people, criminalising same-sex relations ... I am all too aware that these laws were often put in place by my own country.”
The Prime Minister went on to say, as Patrick Harvie also quoted:
“They were wrong then and they are wrong now. As the UK’s Prime Minister, I deeply regret both the fact that such laws were introduced, and the legacy of discrimination, violence and even death that persists today. ... we must respect one another’s cultures and traditions. But we must do so in a manner consistent with our common value of equality ... Nobody should face persecution or discrimination because of who they are or who they love.”
More encouragingly still, those words were matched with the pledge that the UK stands ready to support any Commonwealth member that wants to reform outdated legislation that makes such discrimination possible.
The Commonwealth’s 53 countries are home to more than 2 billion people, so Scotland and the UK’s leadership on this issue has the ability to impact millions of LGBT people across the globe.
In conclusion, I stress, as did Christina McKelvie, that raising public awareness of the bill will be crucial to ensuring that potential applicants know that they have the right to have a conviction disregarded.15:53
Rona Mackay (Strathkelvin and Bearsden) (SNP)
I am pleased to speak today in the stage 1 debate on this vital piece of legislation, which will remove the shameful stigma and address the historic wrong that was done to men who were convicted of a crime that should never have been a crime. Make no mistake about it: the discriminatory effect of convicting men for being in same-sex relationships—for simply being themselves—lingers on. The bill will draw a line under that discrimination once and for all.
Scotland has a proud record in leading the way in LGBTI equality. Of course we still have work to do, but I am proud that it is this Parliament that is bringing this bill forward. I am also proud that it has such great cross-party support. It delivers on a commitment that was made in the programme for government when it was published in September.
As you know, Presiding Officer, the private member’s bill of my friend and former colleague John Nicolson, the Turing Bill, which Alex Cole-Hamilton mentioned, was talked out in Westminster and failed to reach the statute books—a totally shameful state of affairs. We can do better than that. We will end this injustice and consign those disgraceful convictions quite literally to history.
At long last, the Historical Sexual Offences (Pardons and Disregards) (Scotland) Bill will also enable men to have their convictions for same-sex sexual activity that is now legal removed from central criminal conviction records. It will pardon those who were convicted of criminal offences for engaging in same-sex sexual activity that is now legal and put in place a system to enable a person with such a conviction to apply to have it disregarded so that information about that conviction that is held in records, which are generally maintained by Police Scotland, does not show up in a disclosure check.
The bill applies to discriminatory historical convictions for sex between men, but it is otherwise gender neutral, which means that it will apply equally to trans women and non-binary people who were convicted as men.
In addition to the pardon, the bill includes a statement on its purpose. It states:
“The purpose of this Act is to acknowledge the wrongfulness and discriminatory effect of past convictions for certain historical sexual offences”.
I was concerned that the word “pardon” might still imply to some people that Parliament sees these men as having done something wrong. The cabinet secretary and Gail Ross mentioned that. That is, after all, a common context in which a pardon might be granted. However, these men did nothing wrong, and they were grossly discriminated against by the legislation. The wrong was committed by the state, not by individuals. That is worth repeating.
On the bill’s introduction, the First Minister said:
“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 ... I categorically ... and whole-heartedly apologise for those laws and for the hurt and the harm that they have caused”.—[Official Report, 7 November 2017; c 8.]
Back in the so-called good old days, prior to 1981, all sexual activity between men in Scotland was a criminal offence in all circumstances. The so-called homosexual offences of sodomy and gross indecency applied specifically to sex between men. Men were also prosecuted under other laws, including for “shameless indecency”, under local byelaws and for breach of the peace. Like others, I find it incredible that that happened so recently. While I was researching for the debate, I was constantly amazed at the scale of that inequality and injustice, and I confess to feeling ashamed that I was not aware of it at the time.
Slowly but surely during the 1980s, starting in 1981, sex between men was decriminalised step by step. There was the higher age of consent of 21 between 1981 and 1994, and then the age was 18 until 2001, when it was equalised at 16. There were also special, more restrictive rules about privacy until 2001.
The law continued to use discriminatory language, such as “gross indecency”, for sex between men until 2010, and the common-law offence of sodomy was finally abolished only in 2013, when the new sexual orientation neutral framework for sexual offences fully came into effect.
As many colleagues have said, it is important to note that it was not only sexual activity that was criminalised; affectionate activity such as kissing in a public place could be prosecuted as gross indecency or even breach of the peace. Statistics highlight that several thousand men were convicted in Scotland under the old “homosexual offences” of sodomy and gross indecency under local byelaws.
The Equality Network has estimated that the total number of convictions to which the bill applies is in the small number of thousands. Many men who were so convicted will no longer be living, and the Equality Network has estimated that the number of convictions that are covered by the bill for men who are still living is possibly a small number of hundreds. That is the number to which the disregard in the bill applies as well as the pardon.
I am pleased that the memory of those who are no longer with us will remain untarnished. Scotland is a tolerant society and is fully committed to respecting, protecting and implementing human rights and demanding equality, dignity and respect. The introduction of the bill endorses that position, and I am pleased to support it at stage 1.15:59
Kezia Dugdale (Lothian) (Lab)
I spent the weekend in Bosnia studying the genocide and 44-month war that took place there between 1992 and 1995 and, in particular, the impact of that war on women. It has been estimated that between 25,000 and 50,000 people were raped during that time. They were largely women, but around 1,000 men were raped by soldiers. Sexual offences were used as weapons of war. Rape was considered to be the best way to ethnically cleanse villages, because people would flee in fear of the soldiers advancing into their towns.
Over the weekend, I met women who, for more than 20 years, have been fighting for justice and pursuing the men who raped them so long ago. I consider that to be a historical sexual offence, not men being criminalised for their love of sex or, indeed, each other. Patrick Harvie’s point about our not sanitising the language or talking about the issues in politically correct terms is an important one.
I commend the Equalities and Human Rights Committee and its convener for a thorough and inclusive report, and I lend my support to the bill at stage 1.
The committee’s stage 1 report shows that the issues that we are dealing with are not even that old. As has been mentioned—Christina McKelvie made the point well in her opening remarks—the law has been entirely equal and sexual orientation neutral only since 2013 when the final provisions of the 2009 act came into effect.
The committee report is very sensitive. Other members have mentioned witnesses A and B, who were clearly given the space and the confidence to share their stories. That we were trusted with the stories of their lives is a credit not only to the committee but to the Parliament’s standing.
Witness A, who has been mentioned by Annie Wells and Gail Ross, was in his 20s in the 1990s when he got a criminal record for kissing a man in the street. That was not the 1920s, the 1960s, the 1970s or even the 1980s—it was in the 1990s. From what I have read in the report, witness A’s life was not destroyed, but it was materially affected. He lives a successful life and has been promoted several times at his workplace, but he has spent his life fearing applying for other jobs in case his disclosure check would categorise him as a sex offender. Imagine being categorised as a sex offender for kissing someone in the street! That is why this bill matters.
The bill matters to the people whom it directly affects, and in its excellent briefing the Equality Network has attempted to quantify those effects. It says that, pre-1981, the majority of gay men are likely to have broken the law at some point in their lives. Several thousand of those men were convicted. For thousands, their offences are no longer a crime, but most of those convicted are dead. The Equality Network considers that this affects a few hundred men who are alive today but many more families of those who have passed away.
The bill also matters because legislation is key to challenging attitudes. We know from the statistics that, in 2000, 37 per cent of the UK population supported same-sex relationships. In 2015, that percentage had risen to 69 per cent. It is no coincidence that civil partnerships and equal marriage happened in that time; the defeat of section 2A of the Local Government Act 1986, adoption rights introduced for gay couples, the lift on the ban of LGBT people serving in the military, the introduction of hate crime legislation and so many other progressive measures took place during that period, too.
I will make three specific comments about the bill. I was delighted to see such a clear statement on the first page of the bill under section 1 stating beyond all doubt that what happened was wrong and discriminatory.
Secondly, the committee’s recommendation 77, which focuses on the process being as straightforward and user friendly as possible, is critical. Christina McKelvie referenced that issue in her opening remarks, too. It is essential that the form is not off-putting. The rape clause was a horrible policy before the Department for Work and Pensions produced the form, but the form made it even worse. We have a great policy here, but it can be fully realised only if the form is sensitive, straightforward and accessible. Although I would not ask the cabinet secretary to legislate for the paperwork, I would appreciate a commitment that the excellent collaborative relationships that he has built with the LGBT community will continue and extend as far as the detail of this matter and that no form will be introduced without the community’s full support for it.
Thirdly, as I have said, the First Minister’s apology at the time was full, heartfelt and unequivocal, but it should be repeated over and over. I support the Equality Network’s call that pardons and disregards should be accompanied by an apology in the form of a letter—that would be a wonderful move.
As I have learned here and in Bosnia, history is rubbish at telling and recording the story of women. I made that point last year when the bill was first announced. The apology and the pardon do not apply to women. In reality, it was never considered to be a sexual offence for two women to be together. That does not mean that, over centuries, we have been more tolerant of women or lesbians being together; it is simply that the law never considered that women could be involved in sexual activity. As a consequence, women often had to live as men to live their lives. Some of them were convicted of a criminal offence—fraud—but all of them were treated as invisible, and demeaned and ostracised. They were punished in a different way and painted out of history.
I do not seek the extension of the bill’s scope; I just want the story of women to be told. The LGBT community speaks with one voice on the issue, and it whole-heartedly supports the bill at stage 1.16:05
Fulton MacGregor (Coatbridge and Chryston) (SNP)
I commend the Government for taking through such an important bill in the fight for LGBTI rights, because although Scotland has grown to become a leading example in Europe for its promotion of progressiveness and acceptance of the LGBTI community, there are still relics of our intolerant past that need to be addressed if we are to truly support all Scottish people.
As other members have said, same-sex sexual activity between men was considered a criminal offence in Scotland as recently as 1980, the year in which I was born. I find that outrageous. In 1980, “The Shining” and “The Empire Strikes Back” were the top films, “Dallas” was the main programme on television and Blondie had the number 1 single of the year, yet same-sex sexual activity between men was still considered a criminal offence.
Therefore, hate and discrimination in our society are still a healing wound in our history, and it is our duty as representatives of the people to acknowledge and amend that shameful past. I applaud the First Minister for recognising the harmful impacts of our outdated legislation and offering her apologies to all those who experienced the hate and discrimination that it caused. I also commend my colleague Christina McKelvie for taking the first step with the bill in providing a form of redress to the men who continue to face the impacts of prejudiced legislation. I am pleased to say that, should Parliament approve a motion later this afternoon, I will become a member of the Equalities and Human Rights Committee, and I look forward to scrutinising the bill as it progresses.
Scotland is undoubtedly a different place from the place that it was 30 or 40 years ago when it comes to popular attitudes towards same-sex sexual activity. For example, as others have mentioned, a recent study by the Scottish social attitudes survey noted that the number of people in Scottish society holding a positive view of same-sex relationships rose from 37 per cent in 2000 to 69 per cent in 2015, while the number of people holding negative views decreased from 48 per cent to 18 per cent over the same period. However, a figure of 69 per cent still seems a bit low and one of 18 per cent a bit high.
Criminal offences such as that of a man chatting up another man remained offences until 2009, while the deletion from Scots criminal law of terminology such as “sodomy” was only completed at the end of 2013. It is clear that social attitudes surrounding same-sex sexual relations have far outpaced our political approaches to the issue, which has made it necessary for the Parliament to step up and create legislation that properly recognises LGBTI people to be fully equal citizens who deserve equal respect.
The purpose of the bill is twofold. On a symbolic level, its passage will send out a loud and clear message to those who have been negatively impacted by the past legislation and to those whose hate has been emboldened by the official acceptance of it by political representatives that the Scottish Parliament will no longer tolerate discrimination against the LGBTI community. The pardon acknowledges that the law should not have treated gay men as criminals and that they should now not be considered to be criminals. Instead, the Scottish Parliament understands that the wrong was committed by the state, not the individual.
Furthermore, the bill provides a form of redress by pardoning people who were convicted of criminal offences for engaging in same-sex sexual activity that is now legal and by putting in place a system to enable a person with such a conviction to apply to have it disregarded, so that information about that conviction that is held in records that are generally maintained by Police Scotland does not show up in a disclosure check. That second part is crucial, because there have been many examples of individuals who continue to face hardships because of a past criminal conviction, even though their “crime” is no longer considered a crime.
Gail Ross, Kezia Dugdale and Annie Wells talked about the “homosexual act” of kissing another man in public, which a witness to the Equalities and Human Rights Committee discussed. He told the committee how he had to explain his conviction to employers. Such convictions seem ridiculous to us now but, as Kezia Dugdale highlighted, it was not that long ago when the man in question received his conviction. He noted that the difficulty that he had in explaining his conviction often put him off applying for other positions that would enhance his career.
Another witness was charged in the 1980s with loitering in a public convenience under a local authority byelaw dating from the 1930s. Although the byelaw did not explicitly criminalise homosexual behaviour, the witness said that the intention of the regulation was clearly aimed at gay men. Although the witness had forgotten about the incident, 40 years later, to his surprise, it came up in an enhanced disclosure that he was required to submit as part of charitable work. The witness explained that he was fined 40 shillings for loitering—equal to £2 today—nearly 40 years ago and yet it showed up on an enhanced disclosure check today, which is truly shocking. Someone fined under the same byelaw for failing to clear snow from the path outside their door would have been fined 40 shillings, but that conviction would not show up 40 years later in an enhanced disclosure. When asked, both those witnesses said that they would seek a disregard for their offences if they were given the chance.
I want to take a moment to note the value of having the conviction disregarded instead of just pardoned, because a pardon implies that the individual still did something wrong and that the Government is only excusing it and is not necessarily acknowledging that it should not have been treated as a wrong to begin with.
The bill is one of the many actions that the Scottish Parliament must take and is taking to continue its commitment to LGBTI equal rights. In the past, the Scottish National Party Scottish Government introduced historic same-sex marriage legislation, which, when passed by the Scottish Parliament, was recognised by many as being among the most progressive in the world. In addition, the SNP has committed to reviewing and reforming gender recognition law so that it is in line with international best practice for people who are transgender or intersex.
The Scottish Government is also working with time for inclusive education to promote an inclusive approach to sex and relationships education through the inclusive education working group. The bill is thus in line with the Government’s goals and I urge the Parliament to vote in favour of it today.16:11
Liam Kerr (North East Scotland) (Con)
Like my colleagues before me, I will be pleased to agree to the general principles of the Historical Sexual Offences (Pardons and Disregards) (Scotland) Bill at decision time.
It is my view that the state should have as small a role as sensibly possible in adjudicating on or proscribing consenting adults’ business. However, since the Labouchere amendment of 1885 made gross indecency a crime in the UK—which was only four years after the death penalty for sodomy had been reduced to life imprisonment—the state has played too great a role.
What is even worse is that the Criminal Law Amendment Act 1885 contains no definition of “gross indecency”, apparently because Victorian morality demurred from precise definitions of activity held to be immoral. People could not engage in certain behaviour, even in their own home, in private, but they were not told precisely what that behaviour was. Not until 1980 was it made no longer illegal for those aged over 21 to have gay sex. Only within the past few decades or so have we had an equal age of consent for both gay and straight sex—116 years after it was set for opposite-sex intercourse.
Annie Wells talked about how attitudes have changed and referred to the crime of “importuning”, which is, according to the 2000 Moxon report, a man chatting up another man and which was a crime until 2009. As many have noted, attitudes have advanced, but the law has spectacularly failed to keep pace.
This is therefore a welcome opportunity to pass a bill that offers not only a pardon but a mechanism to remove criminal records that persist for behaviour that is no longer illegal. On that point, part 2 offers a pardon to all those criminalised. It covers all consenting sexual acts between men who are over the age of consent for sexual activity as it is defined today and where there was not a relationship of trust or responsibility. No rights are derived from the pardon and convictions are not overturned—it is a purely symbolic measure.
I want to pick up something that the cabinet secretary and Gail Ross raised. I have sympathy with the view that the word “pardon” is perhaps not ideal. I understand that the view was expressed to the committee that the semantics of the word “pardon” imply the pardoning of a committed crime. I have sympathy with that analysis. Those who debated the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill with me will know about my fondness for dictionary definitions. “Pardon” generally means to forgive or to excuse. There could be a risk of the insinuation that something less than normal took place for which there used to be a sanction and only due to societal, attitudinal change is a pardon now required. I am not sure that I know what the solution is, if indeed one is required, but I express sympathy with that view and suggest that it might be something to discuss as the bill progresses.
The member is talking about semantics and definitions. Does he recognise that really there is no such thing as “gay sex”—it is just sex conducted by gay people—and that language matters?
I absolutely would recognise that. I will go off tangent slightly by saying that Patrick Harvie earlier made some very important points in that regard, in that a lot of the language on the subject has been about love and loving relationships. He was absolutely right when he said that, sometimes, it is just about sex and people enjoying themselves.
The second main limb of the bill is to give those convicted of such offences an opportunity to have them disregarded. Nearly a thousand people are currently identified by Police Scotland as having a criminal conviction on their record for a matter that is not an offence. The pardon does not remove that conviction. It is possible, therefore, that such convictions could be required to be revealed—for example, at a job interview. It is right to introduce a system that requires an application to have the convictions disregarded. I understand the view that, if the record could simply be wiped, there is a danger that legitimate crimes could inadvertently be removed. However, as a number of members have said, it is imperative that the system that is to be set up is appropriate and that it works. Not everyone is an activist or linked to the groups that have worked so hard to get us to this point. Not everyone will be aware that they require to take action to clear their record, which, as Christina McKelvie made clear in her speech, is likely to contribute to low uptake elsewhere. Therefore, the disregard process must be publicised extensively so that people understand that it is a necessary step.
When the disregard scheme is developed, it must be as user friendly as possible. I note that, at the committee, Tim Hopkins said that, because of the complexity of both the application form and the system,
“We estimate that only about 2 per cent of the people in England and Wales with those convictions who are still living have applied for the disregard.”—[Official Report, Equalities and Human Rights Committee, 1 February 2018; c 4.]
The committee recommended that the Government co-operate closely with stakeholders in designing the system, and I am sure that those comments will be taken on board, given the cabinet secretary’s response to Jamie Greene earlier in the debate.
I conclude by saying that I am happy to support the principles of the bill and look forward to voting in favour of them today. Perhaps because no rights are derived from the pardon and because convictions are not overturned, the pardons section in the bill is—to use the cabinet secretary’s term—symbolic. Perhaps the disregard process requires more work and thought. However, let there be no doubt that the passing of the bill will mark a hugely important step in the fight to secure equal rights for all in Scotland. I look forward to supporting it this afternoon.16:17
Stuart McMillan (Greenock and Inverclyde) (SNP)
Sometimes in life, doing the right thing might not be politically positive or get the backing of the public. Thankfully, the Historical Sexual Offences (Pardons and Disregards) (Scotland) Bill is not one of those examples. I believe that the time for the bill has come. I commend all my colleagues on the Equalities and Human Rights Committee for their excellent scrutiny of it, which led to the stage 1 report and also led us where we are today in the chamber.
We know that society changes—sometimes quickly and sometimes slowly. On this issue, sadly, it has been the latter. However, we are now in a better place both politically and socially. I am not aware of any of my constituents having raised concern about the bill, but I have constituents who are pleased about and fully support it and what Parliament is trying to do. Days such as this make me think about a local SNP member who was gay—sadly, he is no longer alive. Clearly, he wanted a Scotland that was independent but he also wanted one that had LGBTI equality. I know that he would be proud of the Government’s introduction of the bill and of the Parliament in working to help make Scotland a country of equals.
The stage 1 report and the Cabinet Secretary for Justice’s comments earlier in the debate highlight the desire that the bill should redress previous unjust laws by saying that the state was wrong. That is the clear message that has come out from the chamber this afternoon. The statement from the First Minister, which the cabinet secretary mentioned, was absolutely correct. The pardon is welcome, as is the apology—but the disregard is absolutely crucial. I expect the disregard scheme to be as clear and unambiguous as possible. The people who will go through the process have suffered enough. As a consequence, the very least that the state can do now is make it as seamless and easy as possible.
In the past, the law should not have treated certain people as criminals and they should not be considered to have been criminals. However, the Scottish Parliament now recognises that a wrong was done to them.
I said that, thankfully, society has changed. Fulton MacGregor touched on that in his comments on the Scottish social attitudes survey. It is worth putting on the record again that the Scottish social attitudes survey reported that the percentage of people in Scottish society holding a positive view of same-sex relationships rose from 37 per cent in 2000 to 69 per cent in 2015, and that the percentage of people holding negative views in that regard decreased from 48 per cent to 18 per cent over the same period. In my opinion, the figure of 18 per cent is still far too high, but progress is certainly being made.
The many legal actions in the past in this area are now regarded as abhorrent and we can appreciate the bill as another step forward in dealing with discrimination. Scotland is now considered to be one of the most progressive countries in Europe when it comes to LGBTI equality. Christine McKelvie, the convener of the Equalities and Human Rights Committee, spoke of the detail of the disregard scheme and the opportunity that we have through the bill to learn from the experiences of similar legislation at Westminster. Paragraph 26 of the committee report is important in that regard, and paragraphs 109 to 115 are of particular interest to me as deputy convener of the Delegated Powers and Law Reform Committee. I am sure that the recommendation in paragraph 115 will be considered in due course when the bill comes before that committee.
Someone’s sexuality is a personal matter for them. I have no desire or need to be aware of people’s sexual orientation. I believe that the discrimination that was in place for so long in the past is a stain on the reputation of past political classes, who did not see it as something that needed to be changed or fixed. Importantly, Christina McKelvie and other colleagues highlighted the historical legislation timeline, and it is staggering to realise how recently the law was changed in this area.
Fundamentally, the bill is about people, and our job—Parliament’s job—is about people. The psychological effect on many men of past law might not be totally resolved with the passing of the bill, but the bill will help to redress many of the wrongs of the past. When I vote on the motion on the bill at 5 pm, I will be thinking about one person in particular. He was a private person, so I have no idea about his personal life. However, I know that he would be proud that Scotland’s journey on equality continues.16:22
Maurice Corry (West Scotland) (Con)
Today, with stage 1 of the bill, we take the next step in the process of righting an historic wrong.
The process started in the chamber on 7 November last year, when the First Minister, on behalf of the Scottish Government, apologised to those who were wronged. She rightly received support for that from the leaders of the political parties in the chamber. Ruth Davidson said at the time that
“the jigsaw of equal rights is not yet complete, and today we see a significant piece added.”—[Official Report, 7 November 2017; c 9.]
When we vote on the motion on the bill at decision time, we will be adding another historic piece to the jigsaw.
Of course, what we now need to consider and discuss is how we take the bill forward to ensure that it will work in practice and that every man who wants to get a disregard is able to. The Equalities and Human Rights Committee, which I thank for all its hard work on the bill so far, noted in its stage 1 report that
“the design and delivery of the application system will be key to encouraging men with historical convictions to apply for a disregard.”
The Government will need to ensure that all necessary steps are taken so that the system and the paperwork that goes with it are intuitive and as easy as possible to understand. To ensure that that happens, as the Equalities and Human Rights Committee’s report makes clear, the Government will need to ensure that it works closely with key stakeholders on the design and roll-out of the application system. It would be interesting to hear in the cabinet secretary’s summing up what thought and work the Government has done on that so far.
It is important to make sure that no one is put off from applying for a disregard due to the system being too difficult to navigate, because the convictions have had a real-world effect. Their effect lingers on, so to speak. That is highlighted by the cases of witnesses A and B, who spoke to the committee and are mentioned in its report. Their evidence clearly showed the negative effect that the offences have had on their lives.
Witness A spoke of how he felt that he had been held back from advancing his career. It made him wary of applying for new jobs or promotions because he would need to explain his conviction. Witness B told of how it had affected his ability to do charitable work and help his community because the conviction came up during disclosure checks. Those are but two examples that I think it would be easy for anyone to picture. There are countless others who have been held back from career advancement, prevented from helping out in their communities or denied opportunities in other ways, and a disregard can help them all if they can access it.
Of course, the issue is not just about the legal side; the emotional side also needs to be considered. I welcome the committee’s recommendation that the Scottish Government considers the families of deceased men who may wish to have their loved one’s name cleared.
At this point, I refer to Alex Cole-Hamilton’s moving comment about Alan Turing. I, too, am reminded of his brave endeavours, the incredible work that he did and the fact that he was so unjustly treated during the second world war. He did so much to bring success to our nation and peace to our country as we know it today.
The Scottish Government should consider how it can build into the system that is delivered through the bill a mechanism that will allow a deceased man to be cleared. Some witnesses suggested to the committee the creation of a certificate or letter of acknowledgement, and that option would offer some comfort and closure for the loved ones of deceased men with such convictions.
It is right that we are taking the opportunity to do this now, because attitudes in Scotland have changed. The Scottish social attitudes survey of 2015, which has been mentioned several times, found that, in just over 15 years, the number of people in Scottish society holding a positive view of same-sex relationships had risen to 69 per cent, while those holding negative views decreased to 18 per cent over the same period. I expect that that trend will continue.
I welcome this debate and the bill, and I look forward to being able to vote in its favour at decision time.16:27
Stewart Stevenson (Banffshire and Buchan Coast) (SNP)
I am delighted to join the unanimous support in the chamber for the Historical Sexual Offences (Pardons and Disregards) (Scotland) Bill. I have come to it comparatively late, and my starting point, as it often is, is that I have read the bill. I want to make one or two observations that I hope will be seen as seeking to improve it.
Section 5 is entitled “Application to have conviction for historical sexual offence disregarded”. I note that the Government is going to consult on the application process, but I think that we may be being too prescriptive in areas where we might need flexibility. My particular example is section 5(2)(b), which provides that an application must include
“the applicant’s name and address at the time of the conviction”.
That is not necessarily as easy as it sounds, because people, particularly those who have felt vulnerable, may have moved on a number of occasions and may not be able to provide the necessary accuracy in relation to their address at what might be a relatively distant event. The form of words in the next paragraph—
“in so far as known to the applicant”—
could usefully precede the reference to the address. It is a small matter, but the cabinet secretary might even consider taking the requirements at section 5(2) out of the bill and putting them into secondary legislation so that they can, if necessary, be modified relatively straightforwardly in the future.
Section 7(1) will require Scottish ministers
“in particular ... to obtain ...any record of ... any subsequent proceedings relating to the conduct.”
I raise the question whether that explicitly requires ministers to go and look at newspaper information, which might turn out to be the only preserved information that relates to the issue. I ask ministers to have a wee think about that.
There is a more substantial point to be made about removal of records. Section 10(4) says that
“Regulations may provide that removal from records means recording with the details of the conviction ... the fact that it is a disregarded conviction”.
High Court records go to National Records of Scotland after 10 years, and sheriff court records go after 25 years. That might be well within the lifetime of the person whose record has been marked as having been disregarded, and the marking will, of course, be a public record and available for people to see. I am not sure that that is absolutely right. I accept that the original record needs to be available somewhere, but I suggest that we think about redacting the personal information that goes to NRS, and about not making the record generally available until a substantial time has passed. The period in relation to the register of births is 100 years—I speak as someone who does genealogical research.
Section 10(5) provides that the Scottish ministers may designate a “relevant record keeper”, by Scottish statutory instrument. I invite the Government to ensure that National Records of Scotland is among the relevant record keepers, so that the provisions can cover NRS—otherwise, they might be thought not to do so. If the Government wants a model, I suggest that it consider how privacy is protected in the context of adoption records. Records are available in specified circumstances; I had to look for an adoption in relation to a probate case and was able to find the information, having given adequate reasons for my search.
Maurice Corry and Alex Cole-Hamilton referred to Alan Turing, who is someone whom I, as a mathematician and a software engineer, admire enormously. Alan Turing came from a family of Scottish merchants and was a computer scientist, mathematician, logician, cryptanalyst, philosopher and theoretical biologist. He covered almost the whole gamut. He was in charge of hut 8 at Bletchley Park during the war, where people were working in particular on Ultra and the code that the German navy used, which used aspects that the German army was not using and delivered some 16 billion billion variant outcomes.
Some people have suggested that the contribution of Alan Turing and hut 8 to the war effort helped to shorten the war by two years and might have saved as many as 14 million lives. That is the upper end of the estimate, but it could well be true. Alan Turing was recognised for his work—he was made an Officer of the Most Excellent Order of the British Empire in 1946 and was elected as a fellow of the Royal Society in 1951.
None of that protected him when, in 1952, he was convicted of an offence such as those to which the bill makes reference. His security clearance was withdrawn and he could no longer contribute to the security and safety of the country. He committed suicide in 1954, as a result of how he had been treated. Today, we continue to celebrate Alan Turing’s memory—the Turing test is an important part of modern work on artificial intelligence.
Be they ever so great or ever so humble, the people who were convicted of such offences were all caught by the injustices of the past. We will not forget the records and the detail. Sometimes we see the past glinting through the mist. If members go to Rose Street Lane, they will see engraved on a wall, at the corner, “No loitering”. We have been talking about the particular meaning of “loitering”. Most people who look up and see the notice will be absolutely puzzled as to what it means. When we reach a point at which people are equally puzzled by the past in relation to the subject that we are considering, we will have succeeded.16:34
Daniel Johnson (Edinburgh Southern) (Lab)
I begin by associating myself with much of what has been said today. This has been a rewarding debate to take part in because of the clear consensus that exists across the chamber. I am also keen to associate myself and Scottish Labour with the intent and objectives of the legislation to extend pardon for and disregard of historical offences.
I thank the committee for its diligent work and its extremely useful report, which has been referred to throughout the debate. It is clear that there is an overwhelming moral case for the bill. The discrimination that we are seeking to tackle and to put right today is of the worst possible kind: it is discrimination against people on the basis of their identity and their sexuality. There is no more fundamental part of our identity than our sexuality. Who we love and who we have sex with are fundamental parts of who we are as public and social human beings, and as private human beings. The fact that such discrimination was prosecuted by the state and set out in our laws is an injustice that we must put right.
There was also a human historical injustice. It is the fact that everyday normal behaviours were made illegal that makes putting this right so important. As many members have stated today, it is easy to bank recent progress because we are at a point at which it feels like a long time ago that these injustices were tolerated as normal. It was not all that long ago. Much of today’s debate has focused on history: Christina McKelvie put it very well when she pointed out that not only was Scotland not the shining beacon that we hope it will be in the future, but we were laggard in many ways because we implemented legislation sometimes hundreds of years after our continental peers.
The committee’s report did well to highlight that these are not just historical issues; people are having to face current and on-going issues. A number of members have referred to the evidence that was given by people whose careers have been hindered and whose jobs today are not what they might have been because of legislation that so grossly discriminated against them. That context is very important and critical to the debate that we are having. We cannot view all this as history or as a job done. The work is on-going and global in nature; Patrick Harvie and Margaret Mitchell set out the vital global imperative to keep going and pushing forward.
On another point about context, Alex Cole-Hamilton also put it very well in an intervention. We do not want simply to delete our history and expunge it from our records. We must remain mindful and aware of it.
There is also the context of what has been done elsewhere. Mary Fee set out the comparison with the UK legislation very well. Although that legislation is right in its intent and we can support that intent, the fact that as few as 2 per cent of the people who might be eligible for pardons have applied for them is cause for consideration, as is the fact that its scope is more limited. Our proposed legislation addresses that.
I would also like to reflect on something that the cabinet secretary said about people continuing to suffer as a result of laws that were passed by previous parliamentarians. That is important. We should use this debate to reflect. The things that we are discussing are obviously wrong to us today. We should therefore continue to think about the laws that we pass and the things that we say and how they might be viewed by future generations. What is obviously wrong to us today might not have been viewed as such in the past, so we must consider how our actions might be viewed in the future. I particularly liked those comments. We should be mindful of the point, going forward.
On some of the technical points, the legislation is well conceived. While being mindful of some of Stewart Stevenson’s comments, I say that the bill’s definitions are broadly flexible and useful. It is important that the bill defines sexual activity so broadly and that it captures importuning, because that means that people who were criminalised for chatting people up will be pardoned and eligible for disregards.
I want to mention the discussion around the issue of the pardon. I thought that Gail Ross’s contribution was useful in that regard. She was right to highlight the fact that we need to be careful about how we consider the issue of the pardon, and she also linked that to the consequences that convictions had—inadvertent consequences that might not have been foreseen. That is important because we are dealing with a two-stage measure: there is the pardon, and there is the disregard. A couple of times during the debate, I intervened to highlight the importance of awareness. It is important that people are aware of the difference between the pardon and the disregard. It would be extremely unfortunate if people thought that the pardon is sufficient and did not realise that they have to apply for the disregard.
I was pleased with the cabinet secretary’s explanation about the emphasis that will be placed on simplicity in the process, but I hope that there will be as great a focus on awareness and communication, so that people understand the difference between the pardon and the disregard, and that they need to apply for the disregard.
A number of other considerations were raised in the debate. Kezia Dugdale raised the need for ease, and Maurice Corry made a good point about the need for some sort of acknowledgement, whether it is a letter or something else, of disregard for posthumous cases.
Above all, we need to be constantly reflective about how the legislation operates both in a narrow sense, so that we can ensure that we keep it up to date and that it does what we intend, and in a wider sense, because we always have to think about the implications of what we do in Parliament and about how it will be regarded by people outside and by future generations.
I will be happy to support the bill at decision time.16:41
Jamie Greene (West Scotland) (Con)
I have quite a lot to get through in my summing-up speech, Presiding Officer, so please give me a nod if I eat into the time that the cabinet secretary has for his closing remarks.
I want to thank members across the chamber for their speeches. In this debate, I have heard some of the most heartfelt and eloquent speeches that I have heard in my two years in this Parliament. I am privileged to take part in this debate today as a member of the Equalities and Human Rights Committee and particularly as the convener of the Parliament’s cross-party group on LGBTI issues, as we have been discussing this issue since the formation of that group.
The bill was introduced last November, and the Equalities and Human Rights Committee has collated a huge amount of evidence on it. We have received written submissions and testimony and have heard from various witnesses. Further, the Equality Network undertook an excellent survey, which had more than 700 responses. I want to personally thank those who made submissions and spoke to the committee, as well as the organisations that got involved, such as Stonewall UK and the Equality Network, agencies such as Police Scotland, Disclosure Scotland and the Law Society of Scotland, and, within the Parliament, the clerks, my fellow committee members, the committee convener and the staff in SPICe, who worked so diligently in preparation for today.
The bill follows on the tail of what is commonly known as Turing’s law in England and Wales. There has been a lot of discussion around that legislation. Is it perfect? Probably not. Do we have a chance in this Parliament to get it right? We absolutely do. Could this bill perhaps improve the situation in England and Wales? Possibly—I hope that that is the case.
Throughout the process, we have heard telling testimony from individuals who shared their stories. Too often, men were forced to remain in the closet for fear of not only persecution but prosecution. Men were simply not free to pursue consensual relationships—loving or otherwise—with other men. As we have heard, simple acts such as holding hands, kissing or even chatting in public resulted in bizarre convictions that remained on people’s records for their whole lives, preventing many of them from applying for jobs and serving as a long-lasting stigma on their records.
Patrick Harvie spoke about the Glasgow Gay and Lesbian Centre. I recall, as a 17-year-old, getting on the train from Greenock to go there—I think that it was on Dixon Street, just down from the St Enoch centre. My goodness, I was petrified when I walked in the doors, but what a warm welcome I received. Let us not forget that, in 1997, it would have been illegal for me to have a relationship with another man. We are talking about modern history and not just the 1950s and 60s. Many atrocities were committed at that time, but the issue also resonates personally with me.
Maurice Corry explained that today’s debate is not just about the legal aspects of the bill. I appreciated Stewart Stevenson’s technical contribution, in which he made excellent points that I hope we will reflect on at stage 2, but we are really looking at the painful emotional impact that the convictions had.
Many members said, rightly, that the problem is not localised; it is global. In 72 countries, having a gay relationship is still a criminal offence and, in a third of those countries, people in such a relationship can be prosecuted, jailed or executed. Many of those countries are in the Commonwealth, so we should not shirk our responsibility to raise such issues.
Throughout the stage 1 proceedings, I have raised the issue of people who were in our armed forces. The bill is about pardoning people and disregarding offences, but many people were dismissed from the armed forces simply for being gay; they had not committed any offence whatever. Unfortunately, neither the bill in Scotland nor the act in England and Wales addresses that issue.
Conversations about the matter are going on between the forces and Government agencies, and I am pleased that lots of positive messages have come out of that. I hope that we will right the wrongs against those who served our country in the armed forces. I pay tribute to many friends of mine who left the military in such circumstances. There is nothing that I can say to them or do today to make up for the loss of their proud careers, which were taken away from them. I hope that we will address the issue.
I would like to touch on some of the other themes that came up in the debate, as it is important to consider them.
Liam Kerr and I often discuss the semantics of dictionary definitions. On the issue of whether there should be a pardon, there is a definition of the noun “pardon” that says that it is a cancellation of the legal consequence of an offence or conviction. That is acceptable to me and to many. It is not necessarily about just forgiving; it is a technical matter and, in that respect, we need a pardon.
We know that the application process must be simple but robust, and it should not put anyone off going through the process. I hope that the Government will work with organisations such as the Equality Network when producing the process, the guidelines and the form. I am sure that that will be the case and I hope that such organisations will play a big part in the development process.
The Government should widely promote the disregard as best it can; Christina McKelvie mentioned the role that Disclosure Scotland will have to play in that, which is a pertinent point. There are many agencies and third-party bodies that will have a role to play in that.
We discussed compensation. At the beginning, I was perhaps minded to look at the model in Germany, where compensation is offered, but the feedback that we received, generally, was that this is not about money but about achieving justice for those who have been treated badly. I have a huge amount of respect for that view.
The automatic disregard definitely seems to be a technical impossibility and there are many reasons for that, which have been well presented to us today. I asked one witness whether there could be an automatic disregard for certain types of offence that are not ambiguous and are clearly related to sexual offences. The book should still be open—if there is a will, there may be a way—and we should look at that further.
We also discussed a disregard for those who are now deceased, which I think has not been mentioned. Some members felt very strongly that those who had loved ones who were prosecuted should have the option to apply for a disregard. What benefit it might bring those families and how that might happen is hard to pinpoint, but views were expressed that that could be an option.
On certification, which also comes from a concept in Germany, I have no doubt that if someone successfully applies for a disregard, they will receive some documentation or paperwork. However, how symbolic, official looking or official feeling the wording will be is still up for discussion, and I hope that the bill team will take that on board.
My hope is that the bill sets an example of Scotland being a gay-friendly and tolerant country, but the work is not over. The bill should be not the end of the journey, but the springboard for future progress in how we, as a nation, treat our LGBTI community. A true gay-friendly nation is one that is free of not just legal discrimination, but bullying, harassment and social discrimination. We might not be in the era of police raids on bars in our cities but the reality is that today, still, many gay people are bullied simply because of who they are. I know this because I have often been on the receiving end of such bullying, even since taking office as an MSP.
Let us welcome the bill and congratulate those who helped to shape it, but let us ensure that this is not the end of the journey. We can disregard; we can pardon; but we should also make progress.16:50
I thank all the members who have participated in the debate this afternoon. As has been said in the chamber before, there are often issues that can divide us, but it is always encouraging when we introduce legislation that has such strong and clear cross-party support.
I want to acknowledge in particular the two witnesses who gave evidence in private to the committee that is considering the bill and the very sensitive manner in which the committee made provision for hearing their evidence. People may feel at times as though this is an academic exercise, but the reality is that although the bill may touch the lives of a limited number of individuals, we should not underestimate the significance of the difference that it can make to those individuals and the way in which they conduct their lives, particularly when they have been convicted of an offence in the past under discriminatory legislation.
It is extremely important to state that this legislation is not about rewriting our history—a number of members referred to that. It would be a serious error for anyone to try to take an approach that is about revising or trying to delete our history; Alex Cole-Hamilton and Annie Wells pointed that out. As Annie Wells said, there is a potential danger in trying to rewrite our history. The very fact that we had discriminatory laws that were pursued by the state during a period of time is part of our history and who we are today, and we should always be prepared to learn from such errors of the past. The bill is not about deleting records; it is about correcting the impact on an individual’s life from having a conviction attached to their record.
I have been struck by the issues that have been raised by members. Very often, when it comes to a stage 1 debate, we receive a committee report in which there are a host of recommendations, which we can see are likely to lead to amendments. I will hold Alex Cole-Hamilton to his commitment to non-meddling amendments to the bill at stage 2 and stage 3.
Having said that, I believe that the bill is in good shape in terms of the provisions that are set out in it, particularly because we took the time to look at what were, in our view, some of the errors in the legislation in England and Wales in order to get the Scottish bill correct. We did that for the very reason that was highlighted by Kezia Dugdale in her intervention during my opening speech about the definition of “sexual activity”. The definition in our bill will allow the holding of hands, and kissing in public, to be considered as part of both the pardon and the disregard provisions. That is not provided for in England and Wales. We have sought to get that balance right, and the broad definition that we have created will help to fulfil greater flexibility in dealing with a wider range of issues.
Given that there has been such concern about making sure that the process works well, I understand that it will be governed by regulation and that it will be subject to the negative procedure. Will the cabinet secretary consider the use of the affirmative procedure so that the process can have that level of scrutiny and clarity?
The committee made a recommendation on that matter in its report, and we have written to the committee to confirm that we are content to move to an affirmative procedure.
The report is not about the technical aspects of the bill, but there are concerns about the process elements, which are not about what we are trying to do but about trying to get the process right. As I said in my evidence to the committee, I am committed to making sure that the gatekeeping mechanism—the application process to which some members have referred—should be as user friendly, intuitive and simplified as possible.
Margaret Mitchell made a point about representations that have been made regarding the provision for legal aid for the application process and the letter of response from the Law Society of Scotland. To be honest, I would prefer legal aid not to be required for the application process, because, if the process is as open and simple as possible, there will be no need for someone to engage a lawyer to make an application for a disregard. That is the approach that I want to take; the last thing that I want—this is not for any personal reasons—is for someone who wants to make an application to be driven into the hands of a lawyer and to think that they have to go to a lawyer to make the application.
I am keen to ensure that we make the process as open and user friendly as possible. The development of the application process includes collaborative and co-operative engagement—as we had when shaping the bill—to make sure that we consult and listen to the views of others who can help us to shape the process to get it right.
I appreciate and accept the Government’s intent to make the application process as simple as possible. However, there will be circumstances in which a disregard is not awarded, in which case the person may need a right to appeal. Will the Government consider legal aid in that circumstance?
As we set out in our response to the committee, we are looking at existing legal aid provisions in order to make legal aid, by way of advice and assistance, available to individuals in those circumstances in which they choose to appeal to the sheriff court against a decision not to award a disregard. I hope that that reassures members of our commitment to make sure that we get the application process as open, transparent and easy as possible for people. Alongside that, we will have a public information campaign that will inform people about the process through which they can make an application for a disregard. I am more than happy to keep the committee up to date about progress on those matters.
Members will be aware of the practical challenges around the proposal for the provision of a posthumous disregard. That is not because I am minded to oppose such a proposal; if it could be achieved in a straightforward matter, I would have no problem whatsoever with including it in the bill. However, it is worth keeping in mind that details on the police criminal records system are removed and deleted from the system when a person dies. That system would be key to gathering information when an application is received.
It is also necessary to understand when the conviction took place and, potentially, the court in which it took place. If we do not have that information, hundreds of thousands of court records would have to be trawled through to try to find the information that would be needed, which would be completely impractical to achieve.
The third issue is more sensitive. It may be that the family’s information does not entirely reflect the conviction that took place. When an application has been received, the family may receive information that says that the disregard has been refused and why, and that may cause them upset and concern as a result. We have to recognise that issue of sensitivity.
However, if there is a means by which we can—on the basis of information that the family has made available to us—say that a person is entitled to a pardon and that they may have been entitled to a disregard, I am happy to consider how we can achieve that. We have to recognise the risks and real challenges around the posthumous disregard system.
As a number of members have stated, the bill will be a landmark piece of legislation, as it will ensure that we rectify the discriminatory mistakes that were made in the past in discriminating against individuals because of their sexuality and relationships. The bill will allow this generation to put that right, and I hope that, in the chamber tonight, we will be united in sending out a clear view that Scotland wants not only to be a world leader on LGBTI rights but to put its own record straight by removing the provisions from our legislation and righting the situation for individuals who were affected by discriminatory law in the past.
18 April 2018
Vote at Stage 1
Vote at Stage 1 transcript
The Presiding Officer (Ken Macintosh)
The first question is, that motion S5M-11659, in the name of Michael Matheson, on the Historical Sexual Offences (Pardons and Disregards) (Scotland) Bill be agreed to.
Motion agreed to,
That the Parliament agrees to the general principles of the Historical Sexual Offences (Pardons and Disregards) (Scotland) Bill.
The Presiding Officer
The next question is, that motion S5M-11685, in the name of Joe FitzPatrick, on behalf of the Parliamentary Bureau, on deadlines for questions for bank holidays, be agreed to.
Motion agreed to,
That the Parliament agrees that the period for Members to—
lodge a Topical Question for answer on Tuesday 8 May should be 9.30am on Tuesday 8 May;
submit their names for Portfolio and General Questions on Wednesday 16 and Thursday 17 May should end at 12 noon on Friday 4 May;
lodge a First Minister’s Question for answer on Thursday 10 May should end at 12 noon on Friday 4 May;
lodge a Topical Question for answer on Tuesday 29 May should be 9.30am on Tuesday 29 May;
submit their names for Portfolio and General Questions on Wednesday 6 and Thursday 7 June should end at 12 noon on Thursday 24 May; and
lodge a First Minister’s Question for answer on Thursday 31 May should end at 9.30am on Tuesday 29 May.
The Presiding Officer
The next question is, that motion S5M-11686, on committee membership, be agreed to.
Motion agreed to,
That the Parliament agrees that the following changes to committee membership apply from close of business on Thursday 19 April 2018—
Gil Paterson is to be appointed to replace Kate Forbes on the Environment, Climate Change and Land Reform Committee;
David Torrance is to be appointed to replace Kate Forbes on the Standards, Procedures and Public Appointments Committee;
Jenny Gilruth is to be appointed to replace Fulton MacGregor on the Justice Committee;
Kate Forbes is to be appointed to replace Fulton MacGregor on the Rural Economy and Connectivity Committee;
Tom Arthur is to be appointed to replace David Torrance on the Delegated Powers and Law Reform Committee;
Fulton MacGregor is to be appointed to replace David Torrance on the Equalities and Human Rights Committee;
Fulton MacGregor is to be appointed to replace Tom Arthur on the Economy, Jobs and Fair Work Committee;
Kate Forbes is to be appointed to replace Jenny Gilruth on the Health and Sport Committee.
18 April 2018
Stage 2 - Changes to detail
MSPs can propose changes to the Bill. The changes are considered and then voted on by the committee.
Bill as Passed
Meeting on amendmentsDocuments with the amendments considered at this meeting held on 17 May 2018:
Meeting on amendments transcript
We move on to stage 2 consideration of the Historical Sexual Offences (Pardons and Disregards) (Scotland) Bill. I welcome Michael Matheson, the Cabinet Secretary for Justice, who joins us today as the minister in charge of the bill. I also welcome Stewart Stevenson, who is here to speak to an amendment in his name. Our aim is to complete stage 2 consideration this morning.
Before we move on to consideration of amendments, it would be helpful if I set out the procedure for stage 2. Everyone should have a copy of the bill as introduced, the marshalled list of amendments that was published on Monday and the groupings of amendments, which sets out the amendments in the order in which they will be debated.
There will be one debate on each group of amendments. I will call the member who lodged the first amendment in each group to speak to and move their amendment, and to speak to all other amendments in that group. Members who have not lodged amendments in the group but who wish to speak should indicate to me in the usual way.
If the cabinet secretary has not already spoken on the group, I will then invite him to contribute to the debate before I move to the winding-up speech. As with a debate in the chamber, the member who is winding up on a group may take interventions from other members, if they wish. The debate on each group will be concluded by me inviting the member who moved the first amendment in the group to wind up.
Following the debate on each group, I will check whether the member who moved the first amendment in the group wishes to press their amendment to a vote or to withdraw it. If they wish to press ahead, I will put the question on that amendment.
If a member wishes to withdraw their amendment after it has been moved, they must seek the committee’s agreement to do so. If any committee member objects, the committee must immediately move to the vote on the amendment.
If any member does not want to move their amendment when I call it, they should say, “Not moved”. Please remember that any other MSP may move such an amendment. If no one moves the amendment, I will immediately call the next amendment on the marshalled list.
Only committee members are allowed to vote at stage 2. Voting in any division is by show of hands. It is important that members keep their hands clearly raised until the clerk has recorded the vote.
The committee is required to indicate formally that it has considered and agreed each section and schedule of the bill, and so I will put a question at each appropriate point.
Section 1—Purpose of this Act
Section 1 agreed to.
Section 2—Historical sexual offence: definition
Amendment 6, in the name of Jamie Greene, is in a group on its own.
Jamie Greene (West Scotland) (Con)
Good morning, cabinet secretary.
My amendments are intended to be helpful, and I look forward to feedback from other members and indeed from the cabinet secretary on the specific wording of any of them.
Amendment 6 relates to section 2 and the definition of sexual activity between men. The current wording in section 2(4)(a) defines such activity as
“any physical ... activity between males of any age which is of a type”
“an intimate personal relationship”.
That definition is open to being loosely interpreted, in that intimate personal relationships between men who are over the age of 16 and those who are under could be covered by the bill.
Although I appreciate that offences that are still offences today are not covered by the bill, my understanding of the wording of section 2(4)(a), especially “of any age”, is that it could be interpreted in a way that leaves open the possibility that intimate relationships between men who were over the age of 16 and men who were under 16 could be included.
For that reason, my amendment would add a single line to say:
“(provided that the activity is not between a person who has attained the age of 16 years and one who has not)”,
to strengthen the understanding of what sexual activity is and is not acceptable today.
The Cabinet Secretary for Justice (Michael Matheson)
As I understand it, amendment 6 is intended to ensure that a pardon or disregard is never granted to a person who engages in sexual activity with a child under the age of 16. I understand the member’s concern and I would like to explain why the amendment is not necessary and may indeed have unintended consequences.
Protections are already built into the bill to ensure that, where a person is convicted for sexual activity that remains unlawful, that person is not pardoned, and a disregard will not be granted. Section 3 makes it clear that a person who has been convicted of a historical sexual offence is pardoned for the offence only if the conduct constituting the offence is not an offence when the act comes into force. Section 7(3)(b) provides that a disregard is not to be granted if it appears to the Scottish ministers that the conduct constituting the historical sexual offence would still have been an offence when the act came into force.
Amendment 6, by applying a blanket exclusion that covers any offence where one person has attained the age of 16 and the other has not, runs the risk of excluding from the legislation cases in which the activity in question is lawful and the pardon or disregard should therefore apply. The definition of “historical sexual offence” is necessarily broad and covers activity that people might not necessarily think of as sexual. For example, committee members heard evidence from a man who said that he was convicted of a breach of the peace for kissing his same-sex partner in a public place. The effect of amendment 6 would be to exclude, for example, a 16 year old who was convicted of a breach of the peace for kissing or holding hands with his 15-year-old same-sex partner. That would not be a criminal offence now, and it would never have been a criminal offence where opposite-sex partners were involved. I therefore invite the member not to press amendment 6.
That example is a good illustration—I had struggled to think of any practical application of the legislation in circumstances in which a pardon or disregard would have been acceptable if an offence had been committed by someone over 16 with someone under 16. I would never want to inhibit someone’s ability to apply for a pardon or disregard in respect of the example that the cabinet secretary gave. My hope was that amendment 6 would avoid any loopholes in the legislation that arise through the phrase “of any age”, but the cabinet secretary, by giving that example, has clarified the matter and cleared up my confusion over it. For that reason, I am happy to withdraw my amendment.
Amendment 6, by agreement, withdrawn.
Amendment 7, in the name of Jamie Greene, is grouped with amendment 13.
Amendment 7 is another short amendment, which gives ministers the ability to add offences to the definition of “historical sexual offence”. At present, the parameters around the definition of the detail are clearly set out in section 2. There is broad agreement that section 2, as it stands, covers most bases. The purpose of amendment 7 is to future proof the legislation. If, in the event—although it is perhaps unlikely—that our sexual offence laws are changed in the future, ministers would have the ability to include other definitions in the remit of the legislation.
Amendment 7 leads into amendments 10 and 11, to which I will speak later. Those amendments relate to the ability to alter the purpose of the legislation. At present, there is broad agreement as to what we consider to be the bill’s purpose with regard to historical offences. I highlight our experience of other legislation that has tried to achieve the same thing. We have discovered that people have since come forward with a number of offences—in some cases, quite unusual ones—for which they had been convicted. Awareness of the legislation is out there in the community, and we have found deficiencies in similar pieces of legislation, in the sense that the definitions were too narrow.
The definition in this legislation is good, but it does not allow the opportunity, from a technical point of view, for ministers in the future to alter the definition of a sexual offence, subject to further consultation or legal advice. The purpose of amendment 7 is not to state that ministers must add further definitions; it simply gives them the option to add historical sexual offences, subject to appropriate regulation. That is the only reason that I have lodged amendment 7. I would be keen to hear the cabinet secretary’s views on it.09:45
Amendment 7 provides for a regulation-making power to add new offences to the list of historical sexual offences at section 2.
It might be helpful to the committee if I reiterate that section 2(2) already provides for a catch-all provision, which provides that a historical sexual offence includes any offence that regulated, or was used in practice to regulate, sexual activity between men and which has either been repealed or abolished, or which once covered sexual activity between men of a type which, or in circumstances which, would not amount to the offence now.
The provision is included in the bill because we recognise that, although efforts have been made to identify the offences that were used to prosecute same-sex sexual activity that is now legal, we know that other common law or statutory offences, such as breach of the peace, or indeed local by-laws, might have been used to prosecute such activity. This ensures that a person with a conviction for any offence that was used to prosecute same-sex sexual activity that is now legal is pardoned and can apply for a disregard without the need for a power to add new offences to the list at section 2(1).
In that sense, the power in amendment 7 would serve no useful legal purpose: it is unlikely that it would ever be used. Because amendment 7 is not limited to sexual offences used to prosecute same-sex sexual activity between men, it could be used to add sexual offences of any kind to the list at section 2—for instance, offences used to prosecute sexual activity between opposite-sex partners. Members will be aware the bill is limited to dealing with the discrimination against men involved in same-sex sexual activity, so we do not consider that it would be appropriate for the scope of the legislation to be fundamentally altered through secondary legislation in this way. On that basis, I invite the member not to press the amendment.
I should have added that amendment 30 is a technical amendment that is linked to amendment 7.
I hear what the cabinet secretary says, but I guess that I am looking for reassurance that section 2(2) enables the flexibility that I am looking for in the future for all types of offence, not just sexual offences. My intention is not to include types of sexual offence that lie outwith the bill’s remit. That is absolutely not the intention. If amendment 7 is worded in that way, I apologise.
For example, if people are convicted for a wide range of other behaviours that, in future, are deemed to be covered by the legislation, my hope is that those people will be able to take advantage of the legislation. The intent of amendment 7 was simply to allow future ministers to add certainty where there might not be any, if and when new cases come forward.
I appreciate that the cabinet secretary says that the power might never be used, but it might be. We do not know who is out there and who might come forward with individual and specific circumstances. Amendment 7 intended to give future ministers that flexibility. I hope that, as it is currently drafted, the bill has that flexibility, so I am minded to withdraw amendment 7 for that reason. Perhaps I could chat with the cabinet secretary’s bill team to clarify how some future circumstances might arise and how people could go about taking advantage of the scheme when it is not clear at the moment whether they have committed an offence. That would be helpful.
Cabinet secretary, given that Jamie Greene has asked for a point of clarification, do you want to come back in?
The first thing to say is that it is not clear to me what legislation is in place that would criminalise activity between same-sex partners that we might want to repeal in the future. That legislation has already been addressed. Secondly, the bill deals with historical matters, so trying to make provision to deal with something that might happen in the future would not be within the terms of the bill.
The important point to make is that I cannot think of any current piece of legislation that would continue to discriminate against same-sex partners in the way that people were discriminated against by the historical legislation that the bill seeks to address through the provision of the pardon and the disregard.
Amendment 7, by agreement, withdrawn.
Sections 2 to 4 agreed to.
After section 4
Amendment 1, in the name of Mary Fee, is in a group on its own.
Mary Fee (West Scotland) (Lab)
I begin by thanking Tim Hopkins of the Equality Network for his work in assisting with the drafting of my amendments. His knowledge in this field is unrivalled and his expertise has been invaluable to me throughout the process. I would also like to record my thanks to the Cabinet Secretary for Justice for his continued constructive dialogue, which I have greatly appreciated.
Amendment 1 would provide for a pardon letter for deceased persons. As colleagues know, today is the international day against homophobia, biphobia and transphobia, which is a worldwide day of campaigning and celebration. Therefore, it is a particularly appropriate day on which to be considering the bill.
After similar legislation came into effect south of the border last year, 94-year-old George Montague publicly criticised that legislation. He had been convicted for consensual sex with another man in 1974. He said:
“I will not accept a pardon. To accept a pardon means you accept that you were guilty. I was not guilty of anything.”
He called for an apology to be provided instead. It is right to provide the pardon and the disregard, but the committee agreed in our stage 1 report that those are not enough.
A declaration of the wrongfulness and discriminatory effect of such convictions should be front and centre of any responses to them. That is set out in section 1 of the bill, and it was set out in the First Minister’s unreserved apology in the Scottish Parliament, which made it clear that the wrong was done to the convicted person, not by them.
In our report, the committee asked the Scottish Government to consider how a letter of comfort could be provided to the families of deceased people with such convictions. My amendment 1 is intended to explore that further. It proposes to insert a new section, subsection (1) of which would provide that a close family member of a deceased person with a relevant conviction would be able to apply to the Scottish ministers for a letter of comfort. Subsection (2) provides that an application could not be made if an application for a disregard for the same conviction had already been made by the deceased person and dealt with before they died. Subsection (3) provides that, in the application for the letter, the family member should include as much information as they know about the conviction.
As the family member might not have detailed information on the conviction and the deceased person’s criminal records might have been deleted when they died, it might well be the case that the full details of the conviction will not be available to the Scottish ministers. I have therefore recognised in amendment 1 that the proposed letter of comfort cannot be an unconditional letter saying that the deceased person has definitely been pardoned. It would need to be a conditional letter that said that the person had been pardoned if the conviction was for a historical sexual offence that is not a crime today, and it would need to explain in general terms what that means.
Therefore, subsection (4) provides that the Scottish ministers would not supply the letter if it was clear from the information in the application that the pardon would not apply. Otherwise, they would provide the letter, without the need for further checks, as the letter itself must be conditional. An applicant would receive the letter unless it was already clear from the information that they provided in the application that the pardon did not apply. That would avoid the difficulty of an applicant finding out from the Scottish ministers’ reply that investigation of the records had cast doubt on the pardon applying, which would provide the opposite of comfort.
Subsection (5) sets out the content of the letter, which would explain the application of the pardon. It would include a statement acknowledging the wrongfulness and discriminatory effect of convictions pardoned by the bill. It would also include an apology for those convictions in similar terms to those that were used by the First Minister in her statement to the Parliament on 7 November last year. The subsection also proposes that the letter be signed by the First Minister, reflecting her statement to the Parliament.
Subsection (6) lists the close family members who could apply for the letter. It is unlikely that relatives of deceased people would make a large number of such applications, but the provision of a letter could be a great comfort to relatives, even though it cannot be unconditional.
The extra load that providing the letters would place on the Scottish Government would be small. I appreciate that it might be possible to provide the letters administratively without provision being needed in the bill. I hope that the Government will commit to doing what it can to make that possible.
I move amendment 1.
Alex Cole-Hamilton (Edinburgh Western) (LD)
I echo Mary Fee’s thanks to Tim Hopkins and the Equality Network, not only for the work that they have done on amendment 1 but for the way in which they have helped us throughout the bill process. It has been illuminating.
In my remarks in the stage 1 debate, I intimated that the only deficiency that I saw in this otherwise excellent bill was that it did not extend not only comfort but justice to families of deceased men who, because of their sexuality, had been convicted for an activity that is no longer criminal. There is a human cost to the application of criminal justice in less-enlightened times, which is measured in the tragedy of lives that were cut short by people taking their own lives as a result of the shame or embarrassment that was caused by the criminal record hanging as a millstone round their necks.
I express my support for amendment 1. It will close that gap. It will be the final piece in the jigsaw of a piece of legislation that is not only historic but important for the Parliament.
I echo my committee colleagues’ comments. Mary Fee eloquently stated the case. As Alex Cole-Hamilton said, there was a missing piece of the jigsaw. I, too, felt strongly that family members or partners of people who are now deceased should be able to receive not just a blanket apology but something individualised and personal to them that would allow them to move on in some of the tragic circumstances that have been mentioned. The number of people who might choose to take advantage of that would be small, but nonetheless they should be offered the opportunity to apply. Therefore, whatever form it ends up in, I support the concept.
Amendment 1 seeks to put in place a statutory mechanism whereby the relatives of a person who has died who believe that that person was convicted of an offence for engaging in same-sex sexual activity that is now lawful can apply to receive a letter of comfort that would provide a conditional pardon and disregard, based on the information provided by the deceased person’s relatives.
I can understand why committee members might consider that the relatives of a person who has died might wish to apply for a posthumous disregard so as to confirm that their relative has been pardoned. As I explained during the stage 1 debate, there are a number of potential problems with that.
The primary difficulty is that, if a person has died, it is likely that the information held about them on the criminal history system has been removed and that there will be little or no information available on which ministers can make a decision about whether the disregard should be granted. A second issue may arise in cases in which family members are unaware of the circumstances in which their relative was convicted of an offence and, as a result, could receive unwelcome news that their relative was convicted of, for example, a serious sexual offence.
I am sympathetic to the intention behind the amendment and confirm that the Scottish Government is content to put in place such a scheme. However, it is not clear to me that the scheme requires to be placed in statute. Indeed, I believe that it would be more appropriate in the circumstances to have the flexibility that would be provided by a purely administrative scheme rather than one based in statute.
I hope that that reassures members that the administrative scheme to enable relatives of a deceased person to receive a letter of comfort of the kind envisaged by amendment 1 will be put in place. I can also confirm that the letters will be signed by the First Minister. I therefore invite the member not to press her amendment.10:00
I thank the cabinet secretary for his constructive and supportive comments. I fully understand the concerns that the cabinet secretary has raised around the potential legal difficulties and I welcome his commitment to provide a letter of comfort to family members. On the basis of those comments, I seek to withdraw my amendment.
Amendment 1, by agreement, withdrawn.
Section 5—Application to have conviction for historical sexual offence disregarded
Amendment 2, in the name of Stewart Stevenson, is grouped with amendments 8, 3, 3A and 14.
Stewart Stevenson (Banffshire and Buchan Coast) (SNP)
Amendment 2, which I trust committee members will feel is simple and straightforward, with no side effects beyond its central purpose, follows my comments during the stage 1 debate on certain aspects of the bill’s drafting.
Briefly, section 5(2) sets out the information that a person applying for disregard must provide in their application. Section 5(2)(b) requires the applicant to state their name and address at the time of the conviction. However, as I said in the stage 1 debate, given the passage of time and the social circumstances under which many of the people who might seek such a disregard lived, it may well be possible that some applicants are not able to state with the required certainty what their address was at the time that they were convicted.
I have realised after further consideration that it is also possible—although perhaps less likely—that an applicant might have changed their name and might not be entirely sure whether the conviction occurred before or after the time that they changed their name. There could be cases in which an applicant cannot say with the required certainty what their name was at the time that they were convicted.
Amendment 2 would amend section 5(2)(b) to provide that an applicant must state their name and address at the time of conviction, but that requirement would now be qualified with
“in so far as known to the applicant”.
That brings the requirement into line with sections 5(2)(c) and 5(2)(d), regarding associated information that the applicant is asked to provide about the offence and conviction.
I do not intend to speak on other amendments in the group. I encourage committee members to give due weight—as I am sure they always would do—to their movers’ comments and to the cabinet secretary’s response.
I move amendment 2.
I have no comments on Mr Stevenson’s amendment 2. As always, he comes to the committee with sage words. I will speak to my amendments, starting with amendment 8; perhaps Alex Cole-Hamilton can explain its premise if that is not entirely clear in the wording, or indeed if the amendment is not entirely efficient in what it is trying to achieve.
My aim is to ensure that as many people as possible can take advantage of a disregard. Given the demographic of the types of people who may wish to apply for a disregard, it is important to allow a provision that would give people the opportunity to receive assistance and help with their application and indeed the opportunity for someone to make the application on their behalf, with their consent.
Amendment 8 refers to an application being made
“on behalf of a person who has been convicted”.
I appreciate that the current wording—I am willing to discuss this—could be taken to mean that anyone could apply for anyone else without their consent. That is not the purpose of the amendment.
I am of the view that people who are physically incapable, or who because of other reasons, such as mental issues, need assistance with an application should be able to take advantage of third-party organisations—for example the excellent organisations that we heard from such as the Equality Network and Stonewall, or other charities or advocacy groups—or even simply family members or partners or spouses.
The purpose of amendment 8 is to make provision so that the Government would accept an application from a third party, with due consent, as deemed appropriate. If the wording of the amendment does not meet the requirements, I ask the cabinet secretary to give thought to the process. Under the current wording in the bill, an application could be accepted only from the person involved and not from any other. I like to think that third-party applications will be possible, and that is the purpose of the amendment.
I am keen to hear what Mary Fee will say on amendment 3, as amendment 3A is perhaps of the same ilk, but a little shorter. I will perhaps not move amendment 3A if Mary Fee moves amendment 3, as my amendment refers to a “certificate”, which is perhaps too prescriptive. Throughout the process, I have been of the view that something symbolic should be given to people who have been successful in their application. Whether that should be a certificate or a letter is a matter for debate, but the purpose of amendment 3A is to ensure that they get something. I heard the comments that were made on amendment 1 about people being enabled to apply for deceased members of their family, and I like to think that the same opportunity could be extended to those who are living and who have a successful application. Again, I will listen further on that.
Amendment 14 is a technical amendment that relates to amendment 8, so I will not say anything on that.
Amendment 3 relates to the disregard notice. As I said when we considered amendment 1, it is crucial that any response to a conviction that is pardoned under the bill acknowledges the wrongfulness of the conviction and provides an apology.
Amendment 3 explores the content of the notice that is issued to an applicant when a disregard is granted. The amendment proposes that the notice must include a clear statement that the applicant has been pardoned. It would also state that the wrongfulness and discriminatory effect of their conviction are acknowledged by the legislation. It would include an apology to the applicant, in similar terms to those that were used by the First Minister in her statement to Parliament on 7 November last year, and it would be signed by her.
Including that content in the notice of disregard that is sent to the applicant would help to address the criticism that providing a pardon could be seen as confirming that the applicant did something wrong. It is right that the notice should include a clear apology and an acknowledgement that the wrong was done to the applicant and not by them.
Jamie Greene’s amendment 3A would provide that the notice of disregard should be in the form of a formal certificate, which would also be useful.
I recognise that it might be possible for those measures to be implemented without the need for explicit provision in the bill. However, it is important that there is a clear commitment to provide that kind of response to people who are granted a disregard.
I have a couple of brief reflections on Jamie Greene’s amendment 8 and Mary Fee’s amendment 3.
I have some sympathy with amendment 8. In many pieces of legislation, we include a right to independent advocacy, and we recognise that diminished capacity can sometimes mean that the act of filling in a form can be difficult for an individual. My slight reservation is about how we ensure that there is informed consent and how it is guaranteed that that is the will of the person involved. I will reflect further on the cabinet secretary’s response to that, but I am sure that that could be dealt with in guidance. At present, I am minded to support Jamie Greene’s amendment, although that depends on the cabinet secretary’s response.
Mary Fee’s amendment 3, which is excellent, relates very much to the eloquent remarks that she made at the top of the meeting about the importance of the bill being not just the redaction of the record but a recognition that we as a country got it wrong and harmed a great many people in the application of our laws. That recognition and profound apology are the very least that these men deserve.
Gail Ross (Caithness, Sutherland and Ross) (SNP)
I have a quick comment on amendment 8, which perhaps the cabinet secretary could refer to in his response. Is amendment 8 necessary? Do not the laws on power of attorney already cover what amendment 8 seeks to do?
Amendment 2 addresses the point that Stewart Stevenson raised during the stage 1 debate on 17 April regarding section 5, which sets out the information that a person who seeks a disregard must include in their application. Section 5(2) requires the applicant to state their name and address at the time of conviction. As Stewart Stevenson noted, it is possible that some applicants might not be able, given the passage of time, to state with certainty what their address was at that time. It is also possible—although perhaps less likely—that an applicant might have changed their name and might not be entirely sure whether the conviction occurred before or after the time that they changed their name, so there might also be cases in which an applicant cannot say with certainty what their name was at the time when they were convicted. I therefore ask the committee to support amendment 2.
Amendment 3 seeks to set out in statute what would require to be included in a letter that confirms that a disregard has been granted. The amendment would place a duty on Scottish ministers to include in any such letter a statement making clear that the applicant had been pardoned for a historical sexual offence, noting that the wrongfulness and discriminatory effect of the conviction were acknowledged by the eventual act, and an apology for the conviction, acknowledging the wrong done to the applicant by the state. The amendment would also require the letter to be signed by the First Minister.
Amendment 3A would require the letter to be accompanied by
“a certificate of historical sexual offence disregard.”
I understand the importance of ensuring that the wrongfulness and discriminatory effect of the disregarded conviction are acknowledged and that a disregard letter should make clear that the wrong was done to, and not by, the applicant. I can therefore confirm that the Scottish Government will ensure that those points are reflected in letters to applicants confirming that a disregard has been granted. On that basis, I ask the members not to press their amendments.
Amendment 8 seeks to place on Scottish ministers a duty to make regulations to enable an application for a disregard to be submitted on behalf of a person who has been convicted of a historical sexual offence. There are already circumstances in which a person asks, for example, a solicitor or a person who has a power of attorney to submit an application on their behalf. I reassure the committee that the normal laws relating to agency and power of attorney would allow for a person’s solicitor or someone with power of attorney, for example, to submit an application on behalf of someone with such a conviction, without the need for any specific provision to be made in the bill to allow for that.
I appreciate the response—it was perhaps to Gail Ross’s question—around existing provisions that would allow an application to be made on someone’s behalf using the laws on power of attorney. However, my worry is that that is very focused and would be restricted to people or agencies with power of attorney; it would not include other third parties, such those that Alex Cole-Hamilton mentioned: advocacy groups, third-party groups, charities or even individuals who might wish to make an application with relevant due consent as detailed in guidance. Given what the cabinet secretary said, the current provisions would not guarantee that those people could make an application, which is something that I would like to see. That is why I lodged amendment 8.10:15
The member needs to recognise that the person would have to give consent to enable someone else to apply on their behalf. If they do not have the capacity to give that consent, that is where the provision of a power of attorney would come into play.
If the person gives consent for a third party to make an application on their behalf, they can do so, and that is the position as the law stands. They would have to give consent for the very reasons to which Alex Cole-Hamilton referred: if an application were to be received from a third party but the person whom the application was for had not given their consent, we would have no way of knowing whether that person had consented to the application being made in the first place. The person always has to give consent, if they have capacity. If they do not have capacity, the provisions of power of attorney and so on are applied.
What the member intends with amendment 8 can already happen within the existing legal framework, so there is no requirement for anything to be put in the bill to allow it to happen.
I call Stewart Stevenson to wind up, and to press or withdraw his amendment.
That was an illuminating debate, in which I learned some interesting things.
I will make a wee observation that may illuminate the name change issue. In Scots law, as I understand it, there is no direct legal process for changing one’s name—the person can simply start using another name on any day that they choose. Indeed, I have personal experience of that, because someone I know did that.
I have nothing more to say; it has all been said. I press amendment 2.
Amendment 2 agreed to.
Section 5, as amended, agreed to.
Section 6—Application for disregard: further information
Amendment 8 moved—[Jamie Greene].
The question is, that amendment 8 be agreed to. Are we agreed?
There will be a division.
Greene, Jamie (West Scotland) (Con)
Wells, Annie (Glasgow) (Con)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
The result of the division is: For 2, Against 5, Abstentions 0.
Amendment 8 disagreed to.
Section 6 agreed to.
Section 7—Determination of application for disregard
I call Mary Fee to move or not move amendment 3.
On the basis of the cabinet secretary’s comments, I will not move the amendment.
Amendment 3 not moved.
I call Jamie Greene to move or not move amendment 2A.
It is amendment 3A.
On the same basis as Mary Fee’s comments, I will not move amendment 3A.
Amendment 3A not moved.
Section 7 agreed to.
Amendment 9, in the name of Jamie Greene, is in a group on its own.
You are doing a sterling job, convener. I will try not to overcomplicate this one amendment. We have talked in great detail about the availability of legal aid. I appreciate that there are existing provisions and rules in this area, so my amendment simply says,
“For the avoidance of doubt, civil legal aid would be available, subject to entitlement, for the purposes of an appeal under this section.”
Amendment 9 is a simple addition to bring to bear members’ strongly held view that people can use the legal aid system for the purposes of an appeal; it removes any doubt about whether that is the case. I hope that members will support it.
I move amendment 9.
Again, I have a lot of sympathy with this amendment. The issue came up in the stage 1 debate and several times during our proceedings. I will support the amendment unless I hear from the cabinet secretary that other provisions exist that would automatically trigger entitlement to legal aid. It is important that there be no legal impediment to justice in this area, and that goes for appeals, too.
Fulton MacGregor (Coatbridge and Chryston) (SNP)
I was not on the committee during stage 1 deliberations, and I am not sure what effect the amendment would have. My understanding is that people would be entitled to legal aid anyway, if they were eligible. I ask the cabinet secretary to clarify that before I decide how to vote.
Amendment 9 is intended to put beyond doubt that a person who wishes to appeal against the refusal of an application for a disregard is entitled to civil legal aid, subject to meeting the eligibility requirements. It might be helpful if I outline the Scottish Government’s position concerning the availability of legal aid in respect of the bill.
With regard to the preparation for an application, we do not anticipate that legal assistance should be required in order to submit an application for a disregard. That is because the application process will be designed to be as user friendly as possible. We will work with the Equality Network to ensure that a user-friendly process is delivered. However, if an applicant feels the need to seek legal advice and assistance from a solicitor, that will be available for the preparation of the application for a disregard, subject to the general eligibility requirements under the advice and assistance scheme.
If an applicant wishes to be represented in court for an appeal, civil legal aid is subject to eligibility requirements, including financial eligibility. I hope that that reassures the committee that legal aid is available to someone who wishes to appeal against the refusal of a disregard. Provision can be made for representation in court through advice by way of representation—ABWOR—instead of civil legal aid. ABWOR is advice and assistance that is provided to a person by taking, on their behalf, any steps in instituting or conducting any proceedings before a court. I can therefore confirm that the Scottish Government will introduce regulations to make ABWOR available to a person who wishes to appeal a decision to refuse an application for a disregard, subject to eligibility requirements. Importantly, the provisions of ABWOR would not be conditional on financial eligibility tests. On that basis, I ask the member to withdraw amendment 9.
I ask Jamie Greene to wind up and to indicate whether he wishes to press or withdraw amendment 9.
On the first point—that people should not need legal assistance to complete the initial application—I think that the cabinet secretary has made a very important point and a very welcome comment. I appreciate that a lot of work will go into the application process to make sure that it is as simple and jargon free as possible, so that the widest variety of people can take the opportunity of the process.
However, the appeals process is somewhat different. It is a much more legal and technical process, and for that reason I felt that, subject to entitlement, we should be specific in the bill. The cabinet secretary’s comments and the Scottish Government’s commitment to offer legal assistance—it sounds as if that will not be financially means tested—to people who are rejected and who choose to appeal are very welcome and a positive step forward. I am sure that it will be appreciated by those who may need to use that process in the future. I thank the cabinet secretary and the Scottish Government. For those reasons, I will not press the amendment.
Amendment 9, by agreement, withdrawn.
Section 8 agreed to.
Sections 9 to 13 agreed to.
After section 13
Amendment 4, in the name of Annie Wells, is in a group of its own.
Annie Wells (Glasgow) (Con)
Amendment 4 is intended to put the onus on the Scottish Government to take steps to publicly promote awareness and understanding of the operation of the act. During the committee sessions, it became clear that work would have to be done to advertise the existence of the disregard process and to make it abundantly clear that, despite the pardon, people will still have to go through the separate process of applying for a disregard. During evidence sessions, a witness intimated that he had asked a couple of his friends about the bill and they knew nothing about it. We cannot assume that information about it will naturally disseminate into the wider public. We need to be proactive in publicising it and recognise that not all gay men—particularly those who are in more remote areas—are linked to lesbian, gay, bisexual, transgender and intersex groups. That is why I lodged the amendment.
I move amendment 4.
I support amendment 4, in the name of Annie Wells. I believe the statement of apology that was made by the First Minister to be a welcome first step in our national atonement on the issue, but the promotion of the scheme will be very important for ensuring that people are not only made aware of their rights to obtain disregards and pardons but actively encouraged to come forward to do so.
Amendment 4 seeks to put in place a requirement for the Scottish ministers to take appropriate steps to promote public awareness and understanding of the operation of the act. As we set out in our response to the committee’s stage 1 report, we will work closely with relevant stakeholders, including Stonewall and the Equality Network, to ensure that people who may have convictions for historical sexual offences for engaging in activity that is now lawful are aware of the pardon and the disregard scheme, and of the distinction between the two concepts.
In doing so, we also committed to considering the particular needs of people with such convictions who may live in rural and remote communities. I ask members to note that such a requirement is not normally included in legislation. The statute books would become very crowded if we were to have provisions about publicity for every new offence or policy that was made into law. When a new offence or other significant policy change is created, the Scottish Government will always consider what steps are required to make the public aware of them.
I hope that that provides the reassurance that members looking for, and I invite Annie Wells not to press amendment 4.
I welcome the cabinet secretary’s remarks, on the basis of which I will withdraw my amendment.
Amendment 4, by agreement, withdrawn
Amendment 10, in the name of Jamie Greene, is grouped with amendments 11 and 15.
Members and panellists will have noted that amendments 10 and 11 are very similar in nature. I will come on to amendment 11 later.
Amendment 10 has two purposes. One is to give ministers in the future the opportunity to review the effectiveness of the bill. That purpose is detailed in subsections (1) and (2) of the new section that amendment 10 would introduce. Although the bill is in a very good place, we have learned lessons from other pieces of legislation that have sought to achieve similar outcomes. In Parliament we do our best to get legislation right up front, but things often arise and reviewing legislation is a common process. The wording in amendment 10 appears in many other pieces of legislation. It would provide an opportunity, in that the Scottish ministers may—not “must”—review the effectiveness of the bill in future and, in doing so, and as they think appropriate, consult people, some of whom are perhaps in the room today. The amendment is intended be helpful, in that, in the future, and for a number of reasons, ministers may seek to ensure that this piece of legislation has truly met its objectives.
We perhaps dealt earlier with subsections (3) and (4) of the new section that amendment 10 would introduce, in relation to ministers’ ability, as part of such a review, to alter the definition of “historical sexual offence”. The specific reason for lodging amendment 10—and amendment 11, which goes further—was to address another issue that we have discussed in great detail and about which I have felt very strongly, which is those who have been considered to have offended while serving in our military. I appreciate that such offences might have been administered via other jurisdictions. Nowhere in my amendments do I seek to find a solution to that problem. I think that we are all in agreement that there is still an outstanding issue that neither the bill nor the legislation in England and Wales addresses. There are still people out there who were court-martialled or dismissed from the armed forces for committing no offence other than being gay.10:30
Although I do not for a minute expect the bill to deal with that issue, I hope that in future all concerned bodies—both Governments, agencies and the military—can come up with a solution to the problem. There is not one at the moment; there is discussion. My amendments do not seek to offer a solution but simply allow that, if there is an agreement in the future about offences that were committed in Scotland, for example, or about people who reside in Scotland and wish for a pardon or disregard for those types of offences, the bill may be used as a vehicle to do so.
I have been careful with the wording not to include anything outside the Parliament’s competence. The words simply ask the minister to consult on the matter and, subject to regulation, give the ability for ministers to alter the definition of “historical sexual offence”. An example may be to include wording to cover those who were dismissed from the armed forces for committing a so-called offence, but that is subject to further discussion between Governments and agencies, and we do not know what the outcome will be—I appreciate that that is a difficult circumstance. Because of the progressive nature of this bill, which is not as narrow as others, I would like to think that it could be used as a mechanism to add further pardons and disregards if that was deemed to be technically possible in the future. That is the only reason why I have added amendment 11 and I hope that the cabinet secretary will have some sympathy with the premise of the amendment.
Amendment 15 is largely technical and relates to amendments 10 and 11, so I will not speak to it. I will be keen to hear the views of members and the cabinet secretary on my intention with the amendments.
I move amendment 10.
I have a deal of sympathy for some of Jamie Greene’s comments and the intention of the amendments. One of the most important aspects of any legislation that is passed by Parliament is how we make sure that it adequately does the job that it is intended to do. In my view, the committee could play a crucial and important role, with the Equality Network and other stakeholders, in scrutiny of the effectiveness of the bill. I will be interested in the cabinet secretary’s view.
In his summing up, maybe Jamie Greene can talk to this point. Amendment 11 says:
“Scottish ministers must consult ... Her Majesty’s military forces”.
That is a reserved issue, so I wonder how that interplay would work. The cabinet secretary may want to address that issue as well.
Amendments 10 and 11 are two versions of an amendment that provides for a power for Scottish ministers to review the outcome and effectiveness of the bill. I agree that monitoring and evaluating new legislation is important to ensure that it has the effect that was intended. However, amendment 11 requires that, in undertaking such a review, Scottish ministers would be required to consult Her Majesty’s military forces. As members are aware, the power to legislate to grant pardons and disregards with respect to convictions for military offences is reserved to the United Kingdom Parliament. A person with such a conviction can apply for a disregard via the Home Office’s disregard scheme. As such, it would not be appropriate for a power to undertake a review of the operation and effectiveness of the bill to include such a requirement, given that it will not in fact impact on Her Majesty’s forces.
I also have concerns about the way in which subsection (3) in both amendments is drafted. The subsection requires that, in undertaking the review, the Scottish ministers
“seek advice on any further historical sexual offences which take place in Scotland but are not listed under section 2.”
I think that what is intended is that the Scottish ministers should seek advice on whether there is evidence that people have been convicted for same-sex sexual activity that is now lawful but is not included in the list that is contained in section 2(1) of the bill. As I said earlier, I think that the catch-all nature of the definition of “historical sexual offence” in section 2(2) means that the use of that power would be very unlikely, if it would ever be used at all.
Parliament has an important role to play in post-legislative scrutiny, and it would be more appropriate for it to conduct that process rather than that being done internally in the Government.
I therefore invite Jamie Greene to seek to withdraw amendment 10 and not to move amendments 11 and 15.
I thank my colleagues for their helpful and constructive comments. I will address some of their questions.
Mary Fee made a very good point. This committee in particular will have a very valuable and purposeful role in reviewing the effectiveness of the bill in the future. Reviewing acts and placing a duty on ministers to review them are common practices that add strength to the process. I appreciate the cabinet secretary’s comments on its perhaps being for Parliament and not ministers to review the legislation, but Parliament always has a duty to review legislation.
I take on board the comments on subsections (3) and (4) in amendment 11.
I lodged both amendment 10 and amendment 11 because I knew that amendment 11 would raise the issue that Gail Ross raised on competence and reserved matters. I appreciate that; the aim was really to stimulate conversation about that matter. I still think that there is no harm in both Governments and the military sitting down and having a conversation. Some people who will be affected may currently reside in Scotland, or the offence may have taken place in Scotland, albeit under other law. I would have thought that removing the reference to “military forces” in amendment 11 would have been more palatable to the cabinet secretary.
If the committee is confident that Parliament will review the bill without placing a duty on ministers, I am confident in the committee’s ability to do so. I will therefore not press amendments 10, 11 and 15.
Amendment 10, by agreement, withdrawn.
Amendment 11 not moved.
Amendment 12, in the name of Jamie Greene, is in a group on its own.
Amendment 12 is an important amendment on guidance. Its initial purpose and premise when I spoke to the legislation team was to ensure that people would be signposted to the legislation when going through disclosure processes. That is its background.
Guidance relating to the legislation should be issued, so that would be the purpose of including a guidance provision. In particular, I would like guidance to be given on disclosure schemes, particularly under the Protection of Vulnerable Groups (Scotland) Act 2007, in so far as they will interact with the legislation. The reason is that we discussed at great length in committee, and felt strongly, that in the guidance for applications for disclosure or enhanced vetting processes, people should be signposted.
I have worded amendment 12 in such a way that it does not say that the Scottish Government will have to redraft and reprint all current guidance for vetting processes and disclosure schemes; I appreciate that that would be onerous. However, I would like future iterations of it to signpost people to the legislation in black and white. That is the purpose of the guidance and that is why the amendment has been drafted as it has.
I hope that other members of the committee support the concept of the Government issuing guidance and of it being explicit. For the avoidance of doubt, the matter should also be addressed in the guidance for disclosure schemes. We heard, for example, evidence that people who had applied for certain types of jobs were not really aware of what historical offences they did and did not have to disclose. I would like to think that people who are not aware of the bill but who will interact with it through the disclosure process will be proactively signposted towards it, take advantage of the disregard and then proceed with their vetting processes. That would be a positive move. It might increase uptake of disregards.
It is not an overly onerous ask for the Government to ensure that its guidance on those processes is explicit about the existence of the bill and not just to leave it up to public awareness. For that reason, I ask the committee to support amendment 12.
I move amendment 12.
I have a great deal of sympathy with everything Jamie Greene said. Given its interrelationships with other pieces of legislation, such as the Public Records (Scotland) Act 2011 and the legislation on disclosure and data protection, the successful implementation of a bill of this nature would, however, require extensive guidance. If the cabinet secretary confirms that, I will be minded not to support amendment 12 because I imagine that we could not go far into implementation without guidance.
Amendment 12 would place a requirement on the Scottish ministers to
“issue guidance on such matters relating to the operation of the Act as they consider appropriate.”
I reassure the committee that the Scottish Government will provide guidance to the bodies that are responsible in any way for implementing the disregard scheme. I note that subsection (2) of the new section that amendment 12 would insert provides that such guidance
“must ... make provisions in regard to the disclosure scheme under the Protection of Vulnerable Groups (Scotland) Act 2007 in so far as it”
will be affected by the bill. It might be helpful if I clarify that the disclosure schemes in question are operated by Disclosure Scotland, which works on the basis of information that is provided to it by Police Scotland. The purpose of the disregard scheme is to ensure that disregarded convictions are deleted or marked so that they are never disclosed. As a consequence, Police Scotland should not pass information about disregarded convictions to Disclosure Scotland for the purposes of disclosure checks.
Appropriate guidance will be provided to relevant bodies, including Disclosure Scotland, on implementing the provisions in the bill. However, it is not required that that be provided for in legislation. On that basis, I ask Jamie Greene not to press amendment 12.
Is the cabinet secretary confident that, in the future, the guidance notes that accompany disclosure applications will refer to the existence of the eventual act?
Specific guidance will be issued once Parliament has approved it. That is often the case in relation to legislation. Guidance will be tailored to assist and advise the relevant organisations, such as those to which Alex Cole-Hamilton referred. That will happen as a matter of course, but it would not be stipulated in the bill. The reason why guidance is issued is simple: it is to ensure that the legislation is properly understood and properly implemented by agencies. That probably happens with all pieces of legislation that introduce new statutes such as this.10:45
I thank the cabinet secretary for that answer. I am reassured by his comments.
Amendment 12, by agreement, withdrawn.
Amendment 5, in the name of the cabinet secretary, is in a group on its own. I point out that, if amendment 5 is agreed to, I cannot call amendments 13 to 15 because they will have been pre-empted.
Amendment 5 will amend section 14, which makes provision regarding the regulation-making powers that are contained in the bill to provide that two of them will be subject to affirmative procedure: the power under section 10(3) to
“prescribe the manner in which references to disregarded convictions are to be removed”
and the power under section 10(5) to prescribe relevant record keepers to whom the disregard scheme applies.
Amendment 5 is a response to the recommendation at paragraph 115 of the committee’s stage 1 report that, given the importance of such regulations to the effective operation of the disregard scheme, they should be subject to affirmative rather than negative procedure. We accepted that recommendation in our response to the stage 1 report.
I move amendment 5.
Amendment 5 agreed to.
Section 14, as amended, agreed to.
Sections 15 to 18 agreed to.
Long title agreed to.
That ends stage 2. Thank you very much, cabinet secretary. It has been a superb bill to work with. It has been very well drafted and its intention makes us all incredibly proud to be part of the process.
Thank you very much, convener.
I thank all members for their participation at stage 2 of the Historical Sexual Offences (Pardons and Disregards) (Scotland) Bill. It has been great to see.
The next meeting of the committee will be on 31 May at 9.30 am in this committee room. We have no meeting next week.
Before we close the meeting—[Interruption.] Mary Fee has run away. [Interruption.] Have a seat, Mary.
I apologise. I am back.
Before we close the meeting and while the official reporters are still here, I would like to record that this is my last meeting at the committee. I am sad to be moving on to another committee, so I thank my committee colleagues, the convener, deputy convener, the clerks and the other staff. Everyone who works on the committee does an excellent job; it has been a real privilege to be part of it over the past year. I wish the committee all the best in its future deliberations.
Thank you very much, Jamie. On behalf of the committee, I thank you for the work that you have done in sometimes tenacious fashion, which is always welcome on a committee, and wish you well in your new endeavours.Meeting closed at 10:48.
17 May 2018
Additional related information from the Scottish Government on the Bill
Revised explanation of the Bill (Revised Explanatory Notes)
More information on the powers the Scottish Parliament is giving Scottish Ministers to make secondary legislation related to this Bill (Supplementary Delegated Powers Memorandum)
Stage 3 - Final vote
MSPs vote on whether the Bill should become an Act.
Final debate on the Bill
As no amendments were lodged at Stage 3, MSPs move straight to the final debate on the Bill.
Final debate transcript
The Presiding Officer (Ken Macintosh)
The next item of business is a debate on motion S5M-12573, in the name of Michael Matheson, on the Historical Sexual Offences (Pardons and Disregards) (Scotland) Bill at stage 3.
Before the debate begins, I am required under standing orders to decide whether any provision of the bill relates to a protected subject matter—that is, whether it modifies the electoral system and franchise for Scottish parliamentary elections. In my view, no provision of the Historical Sexual Offences (Pardons and Disregards) (Scotland) Bill does that, so the bill does not require a super-majority in order for it to be passed at stage 3.
I call Michael Matheson to speak to and move the motion.14:42
The Cabinet Secretary for Justice (Michael Matheson)
I begin by thanking the members and clerks of the Equalities and Human Rights Committee for their careful consideration of the Historical Sexual Offences (Pardons and Disregards) (Scotland) Bill.
I also thank the external stakeholders who took the time to engage in the development of the bill and in the Parliament’s scrutiny of it. Their input has been valuable in helping to understand the benefits that the bill will bring and where improvements could usefully be considered.
In particular, I want to offer my thanks to Tim Hopkins of the Equality Network, who has been enormously helpful in sharing his knowledge with the Scottish Government and Parliament. [Applause.] As members will know, Tim has spent many years campaigning to bring about equality and to improve the human rights situation of lesbian, gay, bisexual, transgender and intersex people in Scotland, so he should take credit for his excellent work in helping to shape the final bill.
It is entirely right to thank the individuals who gave evidence to the committee on their experience of discrimination that happened simply because they are gay. I ask members to think for a moment about that: discrimination that people suffered simply because of their sexuality. It seems like a lifetime ago, but in fact the specific laws that perpetuated such discrimination were removed from the statute book only relatively recently. For example, the age of consent was equalised only in 2001.
During scrutiny of the bill, much has been made of the progress that has been made in Scotland in recent years in improving equality. However, much remains to be done. Parliament should continue to improve in areas in which discrimination exists, and should explore what actions can be taken to help to reduce and eliminate such discrimination. The bill is a part of that continuing process.
Members will be aware that the bill makes provision in two distinct but connected areas. First, it offers a pardon to people who were convicted of offences that historically criminalised sexual activity between men that is now legal. Secondly, the bill puts in place a scheme to enable a person who has been convicted of a historical sexual offence to apply to have that conviction disregarded, so that it will never be disclosed as part of an enhanced disclosure check, for example.
The distinction between the two provisions is, of course, important. The pardon is automatic and symbolic. If a person has received a conviction for a historical sexual offence, they will receive the pardon. There has been comment about whether a pardon is the correct approach, because to pardon something can be seen as to excuse it while still suggesting that what was done was wrong. I, and the Government, understand that concern, which is why the First Minister stood in Parliament in November last year and spoke for everyone in the chamber in formally apologising. It is worth remembering and reminding ourselves of some of the First Minister’s comments on that occasion. She said:
“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. ... 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.”—[Official Report, 7 November; c 8.]
Let me briefly explain the disregard. The disregard scheme is a practical measure to address the fact that it is possible that people who were convicted for engaging in same-sex sexual activity can continue to suffer discrimination as a result of those convictions. Although it is likely that any such convictions are now spent under the Rehabilitation of Offenders Act 1974, and therefore would not be disclosed routinely when a person applies for a job that does not involve working with vulnerable groups, we accept that there is a risk that such convictions could continue to be disclosed when a person applies for a role—for example, one that involves working with children or vulnerable adults—that requires an enhanced disclosure check, which includes information on spent convictions.
An application is required for a disregard. However, let me assure members that the Scottish Government, which will administer the scheme, intends to keep the bureaucracy in the process to an absolute minimum. The briefest of details—a person’s name and contact details and any information about the conviction, such as its location—are all that will be required to allow an application to be made.
I know that, during the scrutiny process, concerns were expressed about the complexity that might be involved in applying for a disregard. That is not the Scottish Government’s intention, so I confirm that the Scottish Government will work closely with the Equality Network and other stakeholders to make the process of applying for a disregard as straightforward as possible. From the information that is received with an application, the Scottish Government will explore with relevant record keepers including Police Scotland whether information is held about the conviction, in order to inform a decision on whether to grant a disregard.
As the Equalities and Human Rights Committee highlighted in its consideration of the bill, it is important that we emphasise that the pardon is symbolic, and that a person who wants to ensure that any conviction that they have for same-sex sexual activity that is now lawful is removed from the criminal history system must apply for a disregard. I assure members, including members of the committee, that the Scottish Government will issue guidance material to make that very point clear.
During stage 2, there was considerable debate about ensuring that people understand why a pardon was being offered and why the pardon had to be seen in the wider context of the legislation and the apology that the First Minister gave. I confirm that, when disregards are granted, the Scottish Government will make it clear to recipients what the First Minister said when she apologised, so that there is no misunderstanding of why the disregard has been granted and a pardon has been triggered.
In beginning my conclusion, it is worth highlighting the excellent cross-party support that the bill has received. All members of the Equalities and Human Rights Committee have been very effective in their scrutiny of the bill, and they have always sought to improve it in a collaborative and helpful spirit. That is how legislation should be done, whenever possible.
No one needs to be reminded, of course, of the damage that has been done to people’s lives by discriminatory and unjust laws, or that such damage cannot be undone. Unfortunately, for many decades parliamentarians in Scotland supported, or at least tolerated, laws that criminalised individuals because of their sexuality. A variety of people were harmed, of course. Men were completely unjustly convicted of offences, and lives were affected and probably, in some cases, destroyed. Men who were not convicted lived in a time when there was a risk that they would be criminalised. The families and friends of those men witnessed loved ones being unable to be their true selves.
The ramifications of those unjust laws spread far and wide. They deterred people from being honest about their identity to their families, friends, neighbours and colleagues, and they sent the horrific message that homosexuality was wrong. Therefore, they encouraged rather than deterred homophobia and hate.
A week after the independent review of hate crime legislation in Scotland reported its findings and recommended further action to tackle hate crime, it is pleasing that laws that are designed to protect individuals’ identities are the focus of attention, rather than the overt discrimination that was captured in our old criminal law. However, that is also a sign that although we should all welcome Scotland’s modern, open and inclusive approach to equality issues, discrimination still lurks. Sadly, that is why hate crime law continues to be necessary at all.
The bill makes it absolutely clear, through the pardon, that this Parliament acknowledges that the people who were convicted of offences for engaging in same-sex sexual activity did nothing wrong. By establishing a disregard process, we will also ensure that people can take steps to ensure that they do not continue to suffer discrimination as a result of such unjust convictions. When seen in the context of the apology that was offered by the First Minister and all the political parties in this chamber, this is a proud day for the Scottish Parliament and a proud day for Scotland.
That the Parliament agrees that the Historical Sexual Offences (Pardons and Disregards) (Scotland) Bill be passed.
The Presiding Officer
I call Annie Wells to open for the Conservative Party.14:55
Annie Wells (Glasgow) (Con)
I am pleased to have the opportunity again to be part of the debate on the Historical Sexual Offences (Pardons and Disregards) (Scotland) Bill, which has had unanimous support in the Scottish Parliament since day 1. Without repeating much of what I said at stage 1, I note that this is a landmark bill that has a poignant message. Modern attitudes have changed and by supporting the bill we are setting it in stone that the policies of the past were wrong and that Scotland is on its way to becoming a more just, fair and equal society. We cannot right the massive injustice that took place, but we can, I hope, lift some of the burden of conviction and give gay men convicted of crimes for things that are no longer illegal the opportunity to move on with their lives.
I thank Tim Hopkins of the Equality Network, the witnesses and speakers who came before the committee, my fellow committee members and all the clerks and those associated with the Equality and Human Rights Committee for their tireless work on the bill.
As many have mentioned throughout the bill proceedings, it is difficult to believe that most of us here in the chamber remember those discriminatory laws. Up until 1980, same-sex sexual activity between men was an offence, regardless of where it took place, and it was not until the new millennium that the age of consent was brought into line with that for opposite-sex couples.
I am extremely pleased that the bill has built on the legislation south of the border by applying the pardon to both the living and those who have passed away, and by taking into account the sexual offences that were generic under common law, such as shameless indecency and breach of the peace, but which discriminated against men who engaged in same-sex sexual activity. It was not until I heard the personal testimonies of two anonymous witnesses during the committee’s evidence sessions that I realised just how important that is. A witness, who was just 20 at the time, described how he was charged in the early 90s with intent to commit a homosexual act in a public place after having kissed a man in the street.
It is important that, as I said at stage 1, the purpose of the bill is not to delete those laws from our history books, but to draw a line under them by offering a pardon to gay men convicted of sexual acts that are no longer illegal. During the evidence sessions, it was quite clear that what victims widely sought more than anything was the symbolic acknowledgement that the laws themselves were discriminatory and we must remain aware of what took place.
The bill also provides for a system whereby those with convictions can apply to have them disregarded. The personal testimonies of two witnesses highlighted the lingering impact that discriminatory laws could have on someone’s life, despite the laws having been repealed. Witness A spoke of the embarrassment that he feared in applying for jobs, something that ultimately held back his career; and Witness B spoke of the embarrassment that it had caused him as part of his work with voluntary groups.
As a committee member, I was also able to engage with the bill at stage 2. I wish to use the second part of my speech to address some of the more nuanced points that were raised then. At stage 1, I highlighted the need to advertise the existence of the disregard process, making it abundantly clear that, despite the automatic pardon, there would a separate process in which to apply for a disregard.
The apology that the First Minister issued rightly received national media attention, but we cannot assume, following on from that, that information about the disregard process will naturally disseminate to the wider public. Again, that was evidenced in committee, as a witness flagged up that, before attending the meeting, he had asked his friends for their thoughts about the bill and they knew nothing about it.
I withdrew a stage 2 amendment that required the Scottish ministers to promote public awareness and understanding of the operation of the eventual act, because the Cabinet Secretary for Justice assured me that the Scottish Government will work closely with relevant stakeholders, including Stonewall and the Equality Network, to ensure that those with convictions are made aware of the pardon and the disregard scheme. That is particularly important for those who live in remote and rural areas, where word of mouth is far less likely, and for those who are not linked with LGBTI groups.
As the Law Society of Scotland pointed out, prospective applicants must be made aware through various social media platforms of their right to apply, and they must be actively encouraged to apply, particularly in the context of a highly competitive jobs market. Akin to that, we must have a disregard system that is simple, transparent and capable of being easily understood. As Tim Hopkins from the Equality Network pointed out at stage 1, it has been estimated that, in England and Wales, only 2 per cent of people who are eligible for a disregard have applied, because of the complicated application system.
Mary Fee highlighted at stage 2 that it is perhaps equally important to provide family members and partners of people who are now deceased with something individual and personalised in order to provide comfort. I commend her for her efforts in that regard, and I was pleased to see the cabinet secretary’s commitment to provide a letter of comfort signed by the First Minister to the relatives of those affected.
I also welcomed the cabinet secretary’s reassurance that the Scottish Government will provide guidance to the bodies that will be responsible for the disregard scheme, including Disclosure Scotland.
If we look at the bill in the context of the journey towards LGBTI equality, we can see that we still have a long way to go. A recent report by LGBT Youth Scotland shows that young people still experience discrimination that negatively affects their health and wellbeing. For example, 71 per cent of LGBTI young people and 82 per cent of transgender young people have experienced bullying in school on the ground of being LGBTI, and 35 per cent of LGBTI young people and 41 per cent of transgender young people said that they had experienced a hate crime or hate incident in the past year. Across the world, gay relationships remain illegal in 72 countries. That is another reason why it is so important to send out the message that Scotland truly is a leader in LGBTI equality.
I again voice my support for the bill, which is now in its final stage. By achieving support for the bill today, we send out a message to the LGBTI community that equality really matters. We cannot undo the wrongs of the past, but we can symbolically mark the injustices that took place and lift the burden of conviction. In doing so, we continue the journey to true LGBTI equality.
The Presiding Officer
I call Daniel Johnson to open for the Labour Party.15:03
Daniel Johnson (Edinburgh Southern) (Lab)
Stage 3 debates can be slightly odd and—dare I say it?—disjointed. For those who have been involved in lodging and debating amendments, such debates can be hugely important and engaging. For everyone else in the chamber, they can be slightly bamboozling. Members watch their colleagues debating vigorously, but do not always share their enthusiasm.
Stage 3 of the Historical Sexual Offences (Pardons and Disregards) (Scotland) Bill is different, and not just because there were no stage 3 amendments. Indeed, that is an important sign of the bill’s strength and its balanced approach, and I commend the Government and all those who were involved in drafting it for that. Nor is the biggest difference the degree to which the proposals in the bill have such broad and unanimous support from all parties in the Parliament, although that is surely a mark of the progress that we have made on equality in Scotland.
For me, the biggest difference is the opportunity that the bill has given the Parliament to reflect on the progress that we have made, the need to resist complacency when it comes to equality and historical injustices, and the purposes and effects that legislation in this place has outside and will continue to have in the years to come.
Scotland decriminalised same-sex acts only in 1980 and the last anti-gay references in Scots law were removed only five years ago. I was particularly struck by Christina McKelvie’s remarks in the stage 1 debate in which she outlined where Scotland sits in an historical context compared with other countries. France repealed its laws against homosexuality in 1791. Italy did so in the 19th century and Scandinavian countries did so just after the second world war. In passing the bill, we have to acknowledge how slow we have been to make progress in some ways. We should also commit to ensuring that in the future Scotland leads the world on equality for all and righting historical injustices. [Interruption.] I thank Christina McKelvie for her applause.
I thank the Equalities and Human Rights Committee and I echo the thanks to all the stakeholders who participated in giving evidence and scrutinising the bill, because that has enabled the fruitful debate that we have had so far and which we will continue to have this afternoon. The committee produced an excellent stage 1 report, which brought to life the many issues that surround these historical injustices.
Simple, basic human acts and behaviours were criminalised. Careers have been hindered to this day and people have been prevented from volunteering in their communities. Although those unjust laws might have been repealed, for too many people their effect is far from historical; they impact on lives today.
The bill not only takes an important step towards putting many of those issues right; it does so in a sensible and pragmatic way. It is to be welcomed that the bill will address the issue of those convicted for importuning and those convicted through discriminatory local byelaws. That shows that we have learned an important lesson from England and Wales, where the scope of the equivalent law is felt to be too narrow and there is disappointment in the level of uptake.
We also welcome the approach of creating an automatic pardon alongside a mechanism for disregards. That is sensible, because it will ensure that the law is both universal and effective. It is only right that pardons are given by default, rather than people being required to apply for them. It is equally important to ensure that the effect of these historically unjust convictions does not persist, and that requires a robust and effective disregard system.
I echo the comments made by the cabinet secretary and others in saying that it is vital that we are clear and unequivocal about the meaning of the pardon. It is a pardon only in the strict legal sense. Let us be very clear that men who were unjustly criminalised under these laws did nothing wrong and are guilty of nothing—the pardon is simply an acknowledgement of that injustice. The only guilt, and the only apology, is on behalf of the state, which criminalised so many homosexual men and was the source and instigator of these historical injustices.
I also welcome the improvements that were made to the bill at stage 2. It is critical that the system of disregards is simple and straightforward to use. It is therefore welcome that the Government has responded to calls for the affirmative procedure to apply to the regulations that will be introduced. That will enable Parliament and the public to test and scrutinise how the system will work and to make sure that the legislation is as effective and impactful as possible.
I also acknowledge Stewart Stevenson’s amendment, which will make sure that failure to accurately recall one’s exact details will not prevent applications for disregards. Many people might well find it difficult to remember their exact former address or might have changed their name since they received the conviction. Stewart Stevenson’s amendment will mean that they are not disadvantaged, for which we should thank him.
I also highlight my colleague Mary Fee’s amendment, which she withdrew at stage 2, which sought to make provision for families to apply for a posthumous pardon. I understand the technical issues that that might have caused and I welcome the Government’s commitment to implement such a scheme without legislation. I urge the minister to outline the progress made on that in summing up and to provide clarity on when the scheme is expected to be in place.
It is also vital that there is awareness of the legislation and how people can make use of it. The downside to the approach of providing an automatic pardon in conjunction with a system of disregard by application is the possibility of confusion, as the cabinet secretary noted. We do not want a situation whereby people think that by dint of the pardon, convictions will no longer appear on record checks.
An effective programme of public awareness is vital, so that there is understanding of the difference between the pardon and the disregard that are afforded by the bill and of how to apply for a disregard. I would therefore welcome further detail from the Government on its plans for public information and awareness raising.
This is a very welcome and much-needed bill, which has caused us all to reflect. The bill will have Scottish Labour’s full support this evening as we seek to right the wrongs of the past.15:10
Patrick Harvie (Glasgow) (Green)
I echo the thanks that other members have offered to everyone who has contributed to the scrutiny of the bill, the evidence for it that was presented and the improvement of it during its passage through the Parliament.
There is a lot to celebrate in the passing of this bill. It is an attempt to right an historic wrong. The bill will not erase history or the hurt and harm that were done by the state, but, as the cabinet secretary rightly said, it will give some comfort to people who are living with the consequences of those hurts and harms that were done by the state.
I also echo the cabinet secretary’s thanks to and admiration for Tim Hopkins, who has been a hugely important part of pretty much every step towards LGBTI equality that Scotland has made in all the time that I can remember.
There is indeed a lot to celebrate, and perhaps it would be better if we all simply joined together in that celebration and left the matter at that. I am afraid that I have to make some remarks that are of a less upbeat nature. In the stage 1 debate, I said:
“As we take this ... step, it is important that we make the statement that underpins it mean something. All of us should go back to our political parties and insist that prejudice and discrimination against LGBTI people should be no more acceptable in our policies or our candidate selection than racism, antisemitism, sectarianism or any other form of bigotry.”—[Official Report, 18 April 2018; c 35.]
We are a long way from that point.
At the end of the stage 1 debate, every member of this Parliament nodded along with the happy consensus and the general principles of the bill were agreed to without a division. A few days after the debate, I was disturbed to receive an email from a constituent, whom I will not name, which contained a reply about the bill from John Mason MSP. John Mason had written:
“I am not sure that I really agree with retrospective pardons and apologies”.
He went on:
“I do not see that we can go round pardoning and apologising for everything that other people did that does not conform to modern customs. Will the Italians be apologising for the Roman occupation?”
Where do I begin with that? Is it the flippant tone? Is it the complete absence of any attempt even to show some understanding of the arguments in favour of the bill? Is it the reference to ancient history? This is not ancient history; this is living history.
John Mason (Glasgow Shettleston) (SNP)
Will the member give way?
I will give way to the member in a moment, once I have torn another strip off him.
Many of the people whose lives were subject to untold harm by their own Government are living still, and they do not deserve to be dismissed in such a way.
More than any of that, it is the cowardice of a member in sitting here quietly assenting to something that he did not believe in and then sending that email to someone who he knew would share his views. I am not naive enough to think that John Mason is the only MSP who holds such views. I single him out on the issue only because I happened to be sent that email.
If the member or anyone else holds such views, let them have the nerve to vote against the bill at decision time tonight so that their constituents can see where they really stand, and let every political party have the nerve to say that there are consequences for saying one thing and doing another.
I thank the member for giving way. I wonder whether he accepts that tolerance is an important virtue. Does he accept that people of many traditional faiths, and for other reasons, believe that it is wrong for a person to have a sexual relationship with someone of the same sex? Does he accept that that is a genuinely held belief for a range of people, and that some people believe that it is only within marriage that people should have sexual relationships?
I acknowledge that homophobia exists within a religious context, just as a commitment to equality exists within a religious context. The question is one of consistency. Political parties whose leaders oppose racism would be condemned, and rightly so, for continuing to select racist candidates for election at any level. Political parties whose leaders oppose sectarianism would be condemned, and rightly so, for continuing to select candidates for election at any level who were sectarian. In the same way, political parties whose leaders oppose prejudice and discrimination on grounds of sexuality or gender identity should be condemned for continuing to select homophobic, biphobic or transphobic candidates for election at any level.
I do not expect immediate perfection. Neither racism nor sectarianism has been wholly driven from our politics. However, our communities have the right to see political parties take the issue seriously, and at least begin to address it. However, has any member of the Scottish Parliament ever faced consequences for opposing LGBTI equality and human rights in this chamber? I am not talking just about historical matters such as those in today’s bill, or how people voted decades ago on other issues. I am talking about recent matters, such as the right to marry. Would any MSP face consequences for opposing trans rights when that matter comes to the vote?
Passing the bill is important. It aims to set right an historic wrong—indefensible actions by the state against its own citizens in defiance of their dignity and their basic human rights. However, passing the bill without also changing our culture and our practice in the here and now would not be enough. It is time, I believe, for a little less patience, both with those who oppose equality in their actions and with those who nod along with the consensus when their actions are on the record but then happily tell the bigots exactly what they want to hear when they think that there is nobody watching.15:16
Alex Cole-Hamilton (Edinburgh Western) (LD)
I thank the Government for the tone that it has set for today’s debate, and indeed for the journey that I and my fellow members of the Equalities and Human Rights Committee have taken through the passage of the bill.
Some days at work are truly righteous days, heart-singing days, days of hungry and unanimous commitment to a singular end, and this is one such day. Today, in the pages of the bill, we have the opportunity not just to unpick the injustices of the past that represent a stain on our national conscience, but to offer a profound and unreserved apology to those men, both alive and dead, who have been done incalculable harm by the policies and laws of the past. Today, it is right that we look back on darker days, and I am glad that they seem far, far behind us, although there are many frontiers that we still have to push back.
We were recently offered a glimpse into life in less-enlightened times. I am sure that many members will have watched the recent television adaptation of “A Very English Scandal”, which had the activities of my former party leader, Jeremy Thorpe, very much at the centre. It was somewhat uncomfortable viewing for me, but not for the reasons that members might think. Obviously, there was a certain amount of shame attached to having a party leader undergoing a trial for attempted murder; that shame followed us for many years until it was eclipsed by the decision to enter the coalition Government. It was the atmosphere of rank homophobia and intolerance that characterised that political environment and establishment that really troubled me and made me realise just what we are doing by passing the bill today.
One scene depicted Boofy Gore, Earl of Arran, trying to canvas support for his bill in 1967 to decriminalise homosexual activity, which came off the back of the recommendations of the Wolfenden report some 10 years previously. Such was the glacial movement at the time towards gay rights. In the course of his efforts to pass that bill, Gore experienced derision and widespread persecution and homophobia at the highest levels of Her Majesty’s Government. He was doing that to memorialise his late brother, who had killed himself as a result of the shame that he had felt attached to him as a result of his sexuality, and he was not alone. So many men—incalculable numbers of men—took their own lives as a result of the persecution and shame of an intolerant society whose attitudes were enshrined in the statute book, in the laws that we have happily struck down in the main, and for which we are atoning today. That is why I think that it was important that Mary Fee asked the Government to recognise the issue of those men who have left this world and the need of the families that they have left behind for that posthumous recognition.
The Sexual Offences Act 1967 represented the first stage in our journey, but the darkness did not leave these islands as a result of it. Since then, thankfully, successive generations have pushed that frontier ever backwards, with the decriminalisation of homosexuality in Scotland in 1980, which has been mentioned, the equalisation of the age of consent and the establishment of equal marriage. I am grateful to be part of that story today.
Rare are the occasions when a Government is so helpful and inclusive during the passage of a bill but, by necessity, the passage of this bill represents one of them. I said that I would not lodge amendments at stage 2, and nor did I, because the Government took us on such an inclusive journey to make the bill as good as it possibly could be. We talked about whether we should expunge the record entirely, but we heard quite powerfully from campaigners that to delete these criminal offences from the record would be a kind of revisionist history that would prevent us from looking on the stain of the past.
Further, because of the obscure nature of the crimes for which men had been sentenced, it was impossible to make the disregards automatic. We talked about compensation. I am gratified and humbled to say that not one person who came before the committee, whether they came as a representative of one of the stakeholder groups or as an individual, had ever thought about compensation. That was not what they wanted, and they felt that it would create an artificial hierarchy of victimhood. Finally, I am delighted to hear that, as a result of views that have been expressed, a scheme for posthumous recognition will be included.
At every stage, the bill has been delightful. I simply want to put on record my thanks to Tim Hopkins, Stonewall Scotland and the two men who gave us anonymous testimony with such grace, levity and humour, considering the obvious and measurable harm that their convictions had done to their lives and careers.
Today is one of those days in Parliament that I know I will look back on—I will perhaps even tell my grandkids about how I got to serve in a Parliament that, on a glorious afternoon in early summer, with the rainbow flag hanging at mast outside, struck down one of the last remnants of a more prejudiced era and sought atonement for the harm that had been done.
The Deputy Presiding Officer (Christine Grahame)
We now move to the open debate. There is some time in hand for interventions from members.15:22
Christina McKelvie (Hamilton, Larkhall and Stonehouse) (SNP)
This is quite an emotional day, but I will not say more about that because I might get too emotional and not get through the rest of what I need to say.
Having the chance, through the law, to right a historic wrong is not a regular occurrence for politicians—it is not an experience that we have every day. However, today, that is what we do: we stand up in this chamber, face the nation and say to the men who have been affected, “We were wrong. You were not a perpetrator. You were not a criminal. You were the victim of a system that treated you with discrimination and prejudice.”
Until only a few years ago, a man who loved or was attracted to another man was at great risk in our country, because it was only in February 1981 that the law in Scotland changed to partially decriminalise same-sex relations between men, and then only for men aged 21 and over. Although the age of consent for heterosexuals in Scotland has been 16 since 1885, it was not until 2001 that the age of consent between men in Scotland was set at 16. Further, remarkably, it was only in December 2013—a few short years ago—that the very last anti-gay terminology was removed from the law in Scotland.
So, here we are at the final stage of the Historical Sexual Offences (Pardons and Disregards) (Scotland) Bill, and we are very proud to be here today. The bill began its journey through the Equalities and Human Rights Committee on 1 February this year. Appropriately, that coincided with the start of LGBT history month, so we were looking back on history while, we hoped, making history, too.
At this point, I thank the clerks, the Scottish Parliament information centre and everyone who gave us the evidence that we needed during our deliberation of the bill and helped to bring it to this historic point. I pay tribute to my MSP colleagues for their diligence, which was great, their care, which was deep, and their dedication to ensuring that this important bill made its way through the processes of the Parliament.
I want to pay particular tribute to the two men who told us their stories and about the impact that their convictions had on their lives. Their stories were profound. Alex Cole-Hamilton is right: they spoke to us that day with great levity and humility, but with real understanding of that lived experience and the impact that it had.
One man told us that he “dreaded” having to undertake his Scottish Social Services Council registration
“in case I was going to have to be interviewed and was going to be told I might not be fit to do my job because of my conviction. You just don’t know but these are the things that are in the back of your mind constantly.”
Another witness told us:
“I was fined 40 shillings for loitering nearly 40 years ago and it still shows up on my enhanced disclosure check today. Someone fined under the same bylaw for failing to clear snow from the path outside their door would also have been fined 40 shillings, but my guess is that that conviction wouldn’t show up 40 years later on an enhanced disclosure check for them. From my point of view this has been dredging up an incident from the past which is an embarrassment to me as many of the people I deal with in my charitable work are older and quite vulnerable. It just seems totally irrelevant to my experience.”
I agree—he was absolutely right.
Those stories are not unusual, but they have had a profound impact and influence on the lives of the men affected. We have heard many such stories today. This bill matters not just to those who faced the injustices of a system that treated them with contempt, but because we must never take for granted the progress that we have made in tackling discrimination. It can roll back just as quickly as we push it forward and we should never forget that.
The bill matters because it will help to improve the lives of men with unfair historical convictions by allowing them to have those convictions removed from their records. The disregard process will remove the discrimination that they face when applying for certain jobs, or serving as volunteers in their local communities. Let us not forget that men were imprisoned, fined, publicly shamed and bullied, and they lost jobs, opportunities, friends and family because the law at the time was prejudiced.
Many of them lost their lives—men like Alan Turing, an English mathematician, logician, cryptanalyst and computer scientist who was influential in the development of computer science. He took his own life following a course of female hormones commonly known as chemical castration, which he was given by doctors as an alternative to prison after he was prosecuted by the police because of his homosexuality. He was given an enforced medical procedure instead of going to prison. What a Hobson’s choice that would be for anyone.
When launching the bill, the First Minister gave an apology to the men who have been criminalised, marginalised and discriminated against by our law, and we all hailed that apology. That was the right and proper thing to do, and what we do today is the right and proper thing: coming together in Parliament to bring into force that apology and to make it real through the law that we will pass to take away the discrimination and to right that wrong.
Alan Turing, when talking about imagination, said:
“Sometimes it is the people no one can imagine anything of who do the things no one can imagine.”
He was talking about machines; I would like to think that he was talking about our Parliament. I wonder what he and many who went before him would say today. Would they see a Parliament maturing, growing and thriving on knowledge and understanding; the knowledge to know what needs to be done and the understanding to know how to do it; the humility to say that we were wrong and the good grace to say that we will fix it today?
The bill has been a long time coming. The Equality Network—with Tim Hopkins, to whom we have all paid tribute today—Stonewall and many others have given us, through their drive, determination and campaigning, the understanding that we needed as parliamentarians in order to bring the bill to its final stage.
This is a proud day for us all: a day when we say, “No more will we discriminate against you because of your sexuality. No more will the system work against you. No more will you be denied opportunity in your life and work by prejudicial law.” Today we right that wrong and vote with pride.15:29
Liam Kerr (North East Scotland) (Con)
Like my party colleagues and—I hope and expect—colleagues throughout the Parliament, I will be very pleased to agree that the Historical Sexual Offences (Pardons and Disregards) (Scotland) Bill be passed at decision time.
I made the point at stage 1 that it is my view that the state should have as small a role as sensibly possible in adjudicating on or prescribing consenting adults’ business. The state has, for too long, taken far too great a role in exactly that proscription. It is extraordinary to think that the crime of sodomy attracted the death penalty in Scotland up to 1887, and, from then on, life imprisonment, and that in 1885, Parliament enacted the Labouchere amendment, which prohibited “gross indecency”.
Interestingly, we do not even know what “gross indecency” meant, because Victorian morality could not bring itself to state clearly what it was that it wished to prohibit. I will come back to that point later. Thankfully, attitudes have advanced and slowly the law has followed. Acts once considered illegal and immoral are now acknowledged to be consensual, adult, appropriate and legal.
Therefore, it is right that we pass a bill that not only offers a pardon but provides a mechanism to remove criminal records for behaviour that is no longer illegal. Whether the law should be used to send a message is a debate for another day—in fact, I may touch on that tomorrow in the analysis of Lord Bracadale’s hate crime report. However, it must be true that if—I hope that it is “when” rather than “if”—this Parliament stands united at 5 o’clock to say that it is right that all those who were convicted of same-sex sexual activity that is now legal are pardoned and that a mechanism be put in place to disregard the offence from criminal records, that will send a powerful message about the commitment of this Parliament to counter prejudice.
Incidentally, that message is very relevant. Annie Wells gave some statistics earlier on current discrimination. I would like to add to those. Sexual orientation-aggravated crime is up 5 per cent on last year and, with the exception of 2014-15, there have been year-on-year increases in the charges reported since the introducing legislation was passed in 2010. We must send a message that says clearly and unequivocally that such discrimination is not acceptable and that Scotland is moving on from the prejudices of the past.
Sticking with the message theme, in the stage 1 debate, I made the point about the importance of semantics, and indeed Kezia Dugdale intervened to make the important and valid point that language matters in such discussions. I also suggested—and the cabinet secretary acknowledged this point in his opening speech—that there is something to be said for the view that the use of the word “pardon” implies the forgiving or the excusing of a committed crime. I recognise the point made by an individual in the Equality Network’s briefing, who criticised the United Kingdom legislation. He said:
“To accept a pardon means you accept that you were guilty. I was not guilty of anything”.
I acknowledge and concede Jamie Greene’s response to me at the time of the stage 1 debate, where he stated that a pardon is:
“a cancellation of the legal consequence of an offence or conviction ... we need a pardon”.—[Official Report, 18 April 2018; c 62.]
However, I only concede that in the context of Daniel Johnson’s powerful and accurate comments on exactly this point earlier today.
I referred to the Victorian reluctance to define gross indecency. For all that that may seem bizarre to us now, I think that sometimes we remain reluctant to speak honestly and openly about society and people. Throughout much of this process and indeed the reporting on it, I have noticed that we sometimes talk about “men who are in love” and “loving another adult” or “men attracted to each other”. I understand that but, as Kezia Dugdale correctly made clear in her intervention on me in the stage 1 debate,
“there is no such thing as ‘gay sex’—it is just sex conducted by gay people.”—[Official Report, 18 April 2018; c 51.]
That is correct. Many gay people have sex for no other reason than because they want to; so does everyone else, and we rarely search for an affectionate adjective to in some way validate that decision. I do not think that we should do it in any other context either.
The second main limb of the bill, after the one that deals with the pardon, will give those convicted for these offences an opportunity to have them disregarded. That is important because although it is likely that they will be spent convictions, they may be revealed in a higher level disclosure application process.
As the Justice Committee is hearing at the moment, having a conviction buried in one’s record can have a significant detrimental impact on employment prospects. It makes sense that the record is not automatically wiped, as then matters that perhaps legitimately remain crimes could inadvertently be removed. However, that makes it imperative that the disregard process is extensively and positively communicated, so that all those who could be impacted know that the step is necessary and how to take it. The Equality Network is right to say:
“It will be very important that the pardon and disregard, and the difference between them, is well publicised.”
Annie Wells sought at stage 2 to place the Scottish Government under a duty to raise awareness about the law, but she withdrew her amendment following an undertaking from the minister that such publicity would be considered. I am sure that that consideration will not take long and that the publicity will yield suitably positive results.
Furthermore, in committee evidence, Tim Hopkins suggested that, because of the complexity of both the application form and the system,
“We estimate that only ... 2 per cent of the people in England and Wales with those convictions who are still living have applied for the disregard.”—[Official Report, Equalities and Human Rights Committee, 1 February 2018; c 4.]
Therefore, whatever system is set up, it should be designed by the Government along with the key stakeholders to ensure that it is user friendly. That means a simple application form, a confidential, transparent and easily understood process and a speedy resolution. I am encouraged by the cabinet secretary’s undertaking to keep the bureaucracy of the process to a minimum.
I am happy to support the bill and I look forward to voting in favour of its passing. There should be no doubt that the passing of this bill will mark a hugely important step—although only one step—in the fight to address, and show that Scotland is no longer willing to accept, discrimination against LGBTI people in Scotland.15:36
Fulton MacGregor (Coatbridge and Chryston) (SNP)
I remind the chamber that I am the parliamentary liaison officer to the cabinet secretary, and I am proud to be a member of the Equalities and Human Rights Committee—at least, I have been since stage 2—which scrutinised the bill.
I am proud that the legislation that we will vote through this afternoon is a given in today’s Scotland, but only 30 or 40 years ago very different attitudes resulted in the unfair and unjust prosecution of gay and bisexual men. As other members have said, same-sex sexual activity between men was considered a criminal offence in Scotland as recently as 1980, the year in which I was born. I find that outrageous and I am thankful that we now live in a country that knows how wrong it was to criminalise that activity.
I recently read a story about how being homosexual was still officially considered an illness in Sweden by the National Board of Health and Welfare in the late 1970s. Sweden was fairly forward in decriminalising homosexuality in the 1940s. However, protesters began to call in sick to work because they were gay, with one individual even being able to claim benefits for being gay. Needless to say, it was swiftly recognised that being attracted to the same sex is not an illness. That may now sound ridiculous to many but, sadly, Scotland was years behind that, which is simply inexcusable.
Understandably, the bill will not right that massive injustice. However, it sends out the message that it is not acceptable in today’s society and individuals will no longer be hindered simply because their sexual partners are of the same gender. Our attitudes have changed, but we still require the bill to pardon automatically the estimated 994 gay and bisexual men who were convicted under historical discriminatory laws and to allow those past convictions to be legally disregarded.
As the cabinet secretary said, we must remember that some people feel that accepting a pardon means accepting that, in some way, there is guilt. That is not the aim of the bill and anyone who was affected by those convictions has not done anything wrong—it is important to get that message out. That is why the inclusion of an apology as well as a pardon is crucial, and I again applaud our First Minister for her apology in November. We cannot erase those injustices, but the bill fully recognises that the convictions were wrong and discriminatory and it will ensure that disregards will be provided to those who wish to have them. The wrong has been committed by the state, not individuals; although the hurt and harm that was caused cannot be undone, we can certainly now continue to work towards ensuring that such unjust practices will never happen again.
Sadly, there are those who are not alive today to see their convictions condemned and pardoned, but the families of those deceased people will now have the opportunity to apply to the Scottish ministers for a letter that will explain the pardon and when it applies and set out that the pardoned convictions were wrongful and discriminatory. It will also include the First Minister’s apology, as was discussed in the stage 2 debate in committee. I hope that that will provide comfort to those families who are affected.
We must also consider the definition of “sexual activity”. In England and Wales, the legislation does not allow for the holding of hands and kissing in public to be considered as part of the pardon and disregard provisions. This bill allows for that by providing a broader definition of sexual activity, so a balance has been sought that allows flexibility to ensure that the bill covers all those who were affected by previous convictions.
I was not a committee member at the time, but the committee heard evidence that was both shocking and heartbreaking. Individuals’ lives, careers and future prospects have been hindered because of something as simple as showing affection to their partner in the street. The committee convener, Christina McKelvie, summed up some of that evidence very well. For example, the committee heard from a witness who in the 1980s was charged under a byelaw with loitering in a public convenience. The witness detailed how, although the law did not specifically apply to homosexuals, he believed that the intention of the regulation was clearly aimed at gay men. Forty years later, much to his shock and surprise, the conviction came up in an enhanced disclosure that he was required to submit as part of charitable work. It is indeed shocking that a fine that he was given that equates to around £2 in today’s money was still affecting his employment or volunteering opportunities 40 years on. The witness detailed that he would be pursuing a disregard.
We still have work to do towards LGBTI equality, but I believe that we are taking the correct steps every day and that society is changing. It is worth reiterating the point that I made in the stage 1 debate that the Scottish social attitudes survey reported that the percentage of people in Scottish society holding a positive view of same-sex relationships rose from 37 per cent in 2000 to 69 per cent in 2015, which shows progress. In addition, the percentage of people holding negative views towards those in same-sex relationships decreased from 48 per cent to 18 per cent over the same period. There is no denying that we have made progress, but I still consider 18 per cent to be far too high. It is simply not good enough that, for someone who identifies as LGBTI, almost a fifth of the people they meet do not support their sexual orientation.
As Annie Wells mentioned, it is a global problem. In 72 countries, having a gay relationship is still considered a criminal offence. More shockingly, in a third of those countries, those in same-sex relationships can be prosecuted and jailed or even executed. We have a responsibility to set an example to those countries, to lead the way and to continue to raise the issues. We have ensured that the legislation will reflect equality and show that discrimination is unacceptable. We should now reflect that in wider society and show Scotland as the fully inclusive and equal country that it has the potential to be. We must ensure that the bill is well publicised. Those who choose not to apply for a disregard will still have the comfort of knowing that they have received the pardon and the First Minister’s apology. We live in a Scotland where we celebrate our diversity. In pride month, let us pass the bill and move forward to true LGBTI equality.15:42
Monica Lennon (Central Scotland) (Lab)
As Scottish Labour’s equalities spokesperson, I am pleased to be part of the debate. I pay tribute to organisations such as the Equality Network, LGBT Youth Scotland and Stonewall Scotland for their tireless campaigning for equality for the entire LGBTI community.
It is right to stress, as others have done, that the men involved did nothing wrong and that wrong was done to them. As has been pointed out, the word “pardon” might indicate that those men have committed a crime to be absolved of, but that is not true. A man loving another man has never been wrong—it was the state that was wrong. I therefore commend the First Minister’s unqualified and unreserved apology for the laws and for the hurt and harm that they caused so many people, and I thank her for that.
In introducing this positive piece of legislation, we must not forget the very real and destructive impact of the historical convictions. Men who were convicted under the laws were not able to live the life that they would have chosen had they been free to do so. Although women were not criminalised in the same way, the laws further reinforced discrimination against lesbian or bisexual women, and they are part of the story, too.
We have heard what it was like to live with a criminal record or the fear of one and about the incredible stigma that went with such convictions. The Equalities and Human Rights Committee heard witness A describe how he felt that his employment chances and progression were hindered by his conviction, which was for merely kissing another man. Witness A did not apply for other jobs, because he would have been forced to detail that distressing information. What a missed opportunity and injustice. We should all be upset, angry and sorry that countless men had their careers limited by such reprehensible legislation.
The actual convictions tell only part of the story. Gay and bisexual men lived in fear of conviction in a society that did not accept them. As Tim Hopkins of the Equality Network said,
“People lived in the shadow and fear of being discovered and prosecuted, so they had to live double lives.”—[Official Report, Equalities and Human Rights Committee, 1 February 2018; c 2.]
It is a sad fact that, for many men, this remains an untold story because they have now passed away, as stated by my colleague Daniel Johnson and others. My colleague Mary Fee has fought passionately for the rights of families to have their late relatives’ convictions pardoned. That includes, devastatingly, the families of men who say that their loved ones died by suicide as a consequence of the stigma of homosexuality.
It is a terrible fact that nothing can be done to change that past. I am glad that, today, we live in a Scotland that condemns discrimination and intolerance towards the LGBTI community. However, we should not be complacent, because intolerant attitudes remain.
Most LGBT people would say that they make a quick calculation about the environment that they are in before deciding whether to display even the smallest hint of affection towards a partner. The recent social media video for the BBC “Time for Love” showcases that very experience. It features a young man, Sean, and his partner holding hands as they walk through a park in Glasgow before having to decide whether to kiss goodbye in public. The video shows their mental calculations, the looks from strangers, and their consideration of what the reaction might be. All that has to be processed before any action is taken. It reveals, in a very effective way, the pressure that is still exerted on young gay people, even today. Kissing your partner goodbye should be a spontaneous act. People should not have to carry out a risk assessment before they do it.
Just this week, I was horrified to read in the press about the experience of a gay couple in Coatbridge in the region that I represent. They were physically attacked in a nightclub while they were out celebrating their engagement. Homophobia and intolerance in Scotland, unfortunately, still exist in many parts of society, and we all have so much work to do to stamp out such unacceptable behaviour.
The time for inclusive education—TIE—campaign found that 90 per cent of LGBT people experience bullying at school, and more than a quarter of those attempted suicide as a result of the bullying. We need LGBTI inclusive education and many of us wonder what we are waiting for. I share Patrick Harvie’s sentiments about the need for less patience on such matters.
More must be done to tackle discrimination against the LGBTI community in Scotland. Scotland’s improving record on legal equality is an important step. Since the establishment of the Scottish Parliament, Scotland has reached a high point for LGBT rights, being recognised in 2015 and 2016 as the best country in Europe for LGBTI legal equality. From the introduction of civil partnerships for same-sex couples in 2005, to marriage equality in 2014, Scotland’s achievements in LGBT rights have been hard fought and hard won. They should be an immense source of pride for all Scots, especially the LGBTI Scots who led the way.
I welcome the Historical Sexual Offences (Pardons and Disregards) (Scotland) Bill and hope that its passing, accompanied by the First Minister’s apology, is of comfort to the countless men who were affected by harmful legislation, and the members of the LGBTI community today who continue their fight for equality in Scotland and across the world.15:48
Gail Ross (Caithness, Sutherland and Ross) (SNP)
As a member of the Equalities and Human Rights Committee, I have been honoured to take part in all three stages of the bill. It is a privilege to speak in the debate, after which the bill will become law.
I also take the opportunity to thank everyone who has helped us to get to this point: my fellow committee members, the clerks, the Scottish Parliament information centre and the bill team. Most of all, I thank the people who gave evidence in person and in writing.
I also record my recognition of Tim Hopkins of the Equality Network. I certainly found his help and input invaluable, and I know that my committee colleagues did, too. Monica Lennon mentioned the TIE campaign—I know that Jordan Daly and Liam Stevenson do fantastic work in our schools and society. They are all in the gallery today, so I say to them, “Thank you.” [Applause.]
Throughout the process, I have been struck by the consensual approach at each stage of the bill. During stage 2 last month, all members who lodged amendments did so with the betterment of the bill in mind and, in almost every case, the cabinet secretary gave assurances of the action that the Government was taking to resolve remaining issues. It is a testament to that approach that many amendments were withdrawn or not moved.
During stage 2, the cabinet secretary confirmed a number of further actions that the Government will take, which include providing a mechanism for letters of comfort to be written to the close relatives of deceased men who cannot apply for disregards and are not alive to receive a pardon. It is unquestionably a tragedy that not all those who were wronged can be pardoned while they live, but such letters will give families physical evidence that when it comes to historical sexual offences it was the state that was wrong, and not their relative. I thank my colleague Mary Fee for that.
At stage 2, we were grateful to be joined by Stewart Stevenson, whose insights assist consideration of any legislation. His amendment provided for the situation in which the person who is applying for a disregard cannot supply the name or address that they were using at the time of their wrongful conviction, because circumstances and the passage of time might mean that they do not have that information. As a result of the amendment, that will not act against people when applying for disregards, for which I thank Stewart Stevenson.
In my stage 1 speech, I touched on the question of wrongfulness in the context of pardoning. That was discussed again at stage 2, when Mary Fee raised the story of 94-year-old George Montague. On the pardoning legislation in England and Wales, he said:
“I will not accept a pardon. To accept a pardon means you accept that you were guilty. I was not guilty of anything.”
As I said before, a pardon is the correct legal remedy to apply in this situation. However, for the sake of men such as George, it is crucial that we do everything that we can to go beyond the pardon. We must take every opportunity to explain that the proposed legislation seeks to put right the misconduct of the state, not to excuse the misconduct of the individual. George said,
“I was not guilty of anything”,
and, like the First Minister, we must respond,
“I categorically, unequivocally and whole-heartedly apologise.” —[Official Report, 7 November 2017; c 8.]
I want to raise again an example of the power of the proposed legislation, which I was pleased that the Law Society described as
“the strongest evidence for change”
in the law. The example is the case of Witness A, who had the bravery and selflessness to come before the committee and give evidence.
Like Witness A, people whose jobs require that protecting vulnerable groups—PVG—checks are made still live in fear that they are one promotion or job application away from a part of their personal lives being on display to their employers. Once the bill has been passed, such men can apply for disregards that will not only confirm the wrongfulness and discriminatory nature of their convictions, but will consign to the past the historical wrongs that were done to them, and will prevent those wrongs being a part of their futures. Once they have disregards, they will no longer have to put off applying for promotions for fear of employers finding out about their unjust convictions, and they will no longer have to choose between their careers or protecting their personal lives.
We will never be able to compensate fully for the historical wrongs that have been done to men such as Witness A and many others, but we must make it as easy as possible for them to move on. We must sweep that remnant of the past from our law and we must continue to say that we are sorry.
This is an historic day, but we still have a long way to go, as many of my colleagues have said. I commend everyone who works for equality and acceptance in society. I will be exceptionally proud to vote to pass the bill at decision time today.15:54
Oliver Mundell (Dumfriesshire) (Con)
When we get to a bill’s stage 3 debate and there is broad consensus in the chamber, the debate often loses a bit of passion. However, one of the most powerful things that I take from listening to members from right across the chamber today is how strongly members feel about the issue. I have just joined the Equalities and Human Rights Committee, but from listening to members who sat through witnesses’ evidence, how they have been affected by what they heard is evident. The stories are truly appalling.
The tone that the cabinet secretary set at the start of the debate was welcome. It would be very easy for us to pat ourselves on the back. It is right that we look at today as an historic and highly significant moment of which the Parliament as a whole can be very proud, but if we were to adopt solely that approach, we would be missing something.
As several members have touched on, there are many people for whom today’s decision comes too late. In common with Daniel Johnson, I recognise that the bill represents an opportunity for reflection. It is quite sad to look back at the changes that have taken place in my lifetime, because I imagine that in 28 years there will be members in the chamber who will look back on today’s decision and wonder why it took so long for it to be made. There is no real answer to that or justification for it. When I apologise to people who have been affected and who have had their lives destroyed by the laws of our country, that is what I am saddest and most sorry about, because there is no reason why it took so long to change. It has been widely accepted for several decades that such discrimination is wrong, so it is sad that we got into another millennium without addressing it.
However, I do not want to undermine the incredible work that has been done by people across the Parliament and the Government. As many members have done, I welcome the constructive approach that the Government has taken to listening not just to members from across the parties, but to external stakeholders, many of whom have brought real-life knowledge from beyond Parliament.
It is important to acknowledge that there is still far more to do. As a new member of the Equalities and Human Rights Committee, I am looking forward to working collaboratively in that spirit with other members to drive forward equality, because there is no room for complacency.
We are joined in the gallery by representatives of the TIE campaign. As several members have mentioned, the level of homophobic bullying in schools in Scotland and the experiences of some young people today are truly shocking. I cannot believe that such bullying still takes place, but it does. Fulton MacGregor drew attention to some of the results of the social attitudes survey. I cannot understand why such results are obtained, because we do not hear people talking in that way. Bigoted views have been pushed out of the public domain.
I have a point to make to Patrick Harvie about that. I fully agree with many of the points that he made; my views in this matter are not dissimilar to his. However, I say sensitively to him that we need to be very careful as a Parliament and a society not to push bigoted views out of the limelight.
One of the good things about our system here is that people’s voting is publicly recorded. Quite frankly, I will take anyone’s vote, provided that it moves equality forward; I do not care what their justification for that vote is. That transparency is telling, because people are now under pressure from the public to justify the stances that they take. As a society, I do not think that we are that far from the point at which it will not be up to party leaders to prevent people with bigoted views from continuing to stand for election—the population as a whole will be ready to force those people out of public life.
I appreciate the tone of Oliver Mundell’s remarks, but is there a reason in principle why the view of someone who sincerely believes that interracial marriage is wrong and should be forbidden by law should be unacceptable in the political realm, but the view of someone who believes that same-sex marriage is wrong and should be forbidden by law should be more welcome? Is there a reason for a difference in how we value those positions?
In my view, no, there is not: I am inclined to agree with Patrick Harvie. However, if we are to win people’s hearts and minds and to move such causes forward, we need to be big enough and tolerant enough to have the debates in public. We should not make people feel that they cannot express their moral views. Again, it is important to recognise the distinction between views that people hold within their moral compass or conscience and views that are recognised in our laws.
We need to have a debate. We will not convince the significant percentage of people who have problems with LGBT rights to change their minds simply by shouting them down. We need to make the positive case for equality, which is what we will be voting for tonight. I am very proud that Parliament as a whole has come to that point, and I hope that tonight’s vote will be unanimous.16:01
Stewart Stevenson (Banffshire and Buchan Coast) (SNP)
I am an accidental participant in the debate. Before the stage 1 debate, the whips found that they were one short in volunteers to participate, so I got the tap on the shoulder to do so. I did what I always do in such circumstances, particularly as I was the last member to speak, at the end of the debate: I read the bill. That is how I was able to identify a little something that I was delighted to bring forward at stage 2—and I have heard acknowledgements from two colleagues for that little bit.
When members have attended 266 Justice Committee meetings, as I have, they will have learned how to read bills quite quickly and spot where the elephant traps are. There is no special skill; it is just length of service. Members will all be able to do that when they have been to 266 Justice Committee meetings—I wish them well with that prospect.
This stage 3 debate is very unusual. There are no amendments—that, in itself, is not particularly unusual. However, the Parliamentary Bureau has served the Parliament well by extending the time for the stage 3 debate to fill a full debate slot. That might be unique; it is certainly pretty unusual. I very much welcome the comprehensive opportunity for a much wider range of members than usual to participate in the stage 3 debate.
We are not here to rewrite the past, because we simply cannot do that. Any attempts to do so would require the most careful of considerations. I do not much like the renaming of streets, for example, in an attempt to rewrite history, but I might support the removal of celebratory statues. For example, the statue of Felix Dzerzhinsky, who used to gaze across Dzerzhinsky Square, at the back of Red Square, to the Lubyanka, is no longer there. The street is no longer called Dzerzhinsky Square, and that is proper, given the abuses of human rights that he oversaw as the founder of the precursor to the KGB.
However, I like righting the effects of wrongs that were done in the name of the state. We do not forget what has happened, but we can offer some redress. We should bear in mind that, although we might be striking the official record from public gaze, the newspapers will still carry many reports of convictions and prosecutions. We cannot legislate for that in any meaningful sense, but I hope that that will not interfere with what we are doing today.
I will touch on some of the preceding debate. It is worth saying that we are all making a journey. My parents were both Edwardians who were born well before the first world war, and their moral compass and view of society would have been very different from mine and the views that we are expressing this afternoon. My youngest grandparent was born in 1872, at a time when women could not even own property. The world changes, and society evolves.
I gently engage with Patrick Harvie in that context. I do not think that we can bully anybody into changing their point of view; that just does not work in politics or in life. There is a five-stage process that we might consider. I have just jotted down that process, so it can be criticised. Step 1 is to get people to recognise that there is a difference. Step 2 is to get people to acknowledge that difference. Step 3 is to get people to engage with that difference. Step 4 is to get people to celebrate that difference. Step 5 is to get people to promote the positive values of difference. That is not simply about today’s debate; it is how we progress people, step by step, to a new view of the world. I encourage Patrick Harvie to consider that we should find a way of engaging with those who have a particular viewpoint rather than bully them.
Will the member give way?
I am not going to give way. I am sorry.
It is worth returning to Alan Turing, who is one of my great heroes. Alan Turing lives on in computer science in the Turing test, which is the test of a machine’s ability to exhibit intelligent behaviour. That is exactly what we are doing today: we are exhibiting intelligent behaviour.
I very much welcome the bill and the work of Tim Hopkins, who was probably the first lobbyist I met when I came to the Parliament in 2001. He does not look a day older.
The Cabinet Secretary for Finance and the Constitution (Derek Mackay)
Neither do you.
Now, now. Presiding Officer, I hope that you did not hear that.
Tim Hopkins does not look a day older, but he should because of his indefatigable efforts to help us and to help me, as someone who came from an Edwardian family and was not naturally equipped for today’s debate, not only to engage in all the stages of the debate but to vote for the bill at decision time with gladness in my heart.16:07
Pauline McNeill (Glasgow) (Lab)
I, too, confess that I had a tap on the shoulder. I have never counted how many Justice Committee meetings I have been to, but I have been to a lot.
I also confess that I did not read the bill. However, I have heard the news all day and have followed the debate since it started. To some extent, what I have to say is about my emotions and feelings about what we are doing.
In many ways, this is a sad day because we are hearing about the tragedy of our history. We are hearing stories of gay men who were wrongly criminalised for living their lives freely and about the role that the state played in criminalising them and destroying their lives. However, this is also a significant day, as we are using the Scottish Parliament’s powers to right a serious wrong in our society and our history.
I am learning what a wonderful job the Equalities and Human Rights Committee has done in ensuring that the bill that we will pass is probably just right.
I agree that it has been difficult to find the right words to use in the debate, and I recognise how we have wrestled with that. No words are adequate to describe what we really mean by passing the bill, but we have settled on an automatic pardon for all those who were convicted. Those words are hugely significant to all of us in the Parliament, because we know that the bill addresses a shameful past and addresses the misery and heartbreak that our society has cost men living and deceased as well as their loved ones and families. As other members have said, we can never change that, but we can recognise how very wrong our country was in those times, and we, as politicians, can fight to ensure a better future.
The First Minister, the cabinet secretary and many others deserve praise for the formulation of the legislation that they have produced, because it is wider than the equivalent legislation in England and Wales. The Equality and Human Rights Committee, the Equality Network, former Labour leader Kezia Dugdale and the many other politicians who made an early call for action deserve praise. Every time that we debate equality in terms of sexual orientation, it brings home how recent and disgraceful the discrimination was in our country. Many members have spoken about that. However, it also reminds us of how hard we still have to work to be a modern society that is free from discrimination.
There are many upsetting stories from that dark past that expose the horror of the state crimes against individuals and the insanity of their treatment. I am the third member to mention the wonderful Dr Alan Turing, but I hope that Christina McKelvie will not mind if I mention him again. That wonderful man, whose work was released to public scrutiny only in 2012, decoded messages from the Enigma encryption machine and helped us to win the second world war. We know what happened to him, but we also know now that he was given a royal pardon by the Queen.
Today, while debating the motion to pass the bill, we remember not just Alan Turing but all the men who were wrongly convicted. I believe that, tonight, we stand together as a Parliament of people rather than of parties. There might be one exception—I do not know—but the rest of us will vote on the motion as individuals, because we believe that what we are doing tonight is right.
I do not have the privilege of being able to speak in the debate. Because of my ministerial position, I am not one of the ones lucky enough to have a speaking slot. However, I appreciate the opportunity to make an intervention, and I thank Pauline McNeill for that.
This is an opportunity to right the wrongs of the past, but there is something else that is important for today and going into the future: setting the cultural norms. Parliamentarians do not normally set those—we set the laws. Nevertheless, in this case, culture is important because we are addressing the past mistakes of the state and saying as a Parliament—I am sure that we are united in doing so—that it is okay for gay and lesbian couples to walk as partners down the street and not live in fear of being ridiculed, spat on or otherwise attacked, although that unfortunately still happens to this day. This is our opportunity to unite as a Parliament to address our future as well as our past.
The Deputy Presiding Officer (Linda Fabiani)
I can allow you extra time, Ms McNeill.
Thank you, Presiding Officer.
I thank the cabinet secretary very much for that important intervention. I think that we all share the view that we must be leaders at whatever level we serve. I agree with the cabinet secretary’s fundamental point that every person has the right to live the life that they choose and that the state should protect that right in every way, which is why we must stand together as a Parliament and take that on.
I learned today for the first time—I did not realise this—that the so-called past offences were appearing in disclosure checks. I was quite shocked to learn that that was still happening in recent times. Other members have talked about how recently those past laws existed. For example, we criminalised sex between men under 21 until the 1980s, and it was only in 2001 that we equalised the age of consent. That really shows us how lax we have been on the question of equality.
I will mention another great day in this Parliament that some members will remember. In June 2000, we reversed the section 28 provision that prevented any local authority from funding the promotion of homosexuality. I will never forget that date and that period in our history, because, in some ways, it was a dark time. Those people who remember it will remember the swell of opinion against this Parliament reversing section 28, and there was big money behind that campaign. I am glad to say that we have moved on substantially from that time, but we cannot forget what happened.
My final point is that 37 per cent of United Nations member countries have laws that discriminate against lesbian, gay, transgender, bisexual and intersex people. We have not had a chance to discuss that discrimination. In fact, lesbians are not really mentioned in the legislation, but perhaps that is a matter for another day. There is still work to do across the globe, but tonight I will be proud to vote with members of all parties in the Parliament to pass the motion, and I will be proud to be doing something worth while.16:15
Stuart McMillan (Greenock and Inverclyde) (SNP)
I am happy to be speaking in this important debate and I thank everyone who has been involved in bringing the Historical Sexual Offences (Pardons and Disregards) (Scotland) Bill to this stage.
At the outset, I want to quote from the briefing that we received from the Equality Network. I believe that this quote says so much, not only about the bill and the journey that society has been on but, more important, about the journey that our fellow citizens have made to make Scotland a more inclusive and tolerant country.
“This bill, together with the First Minister’s apology, are an important and appropriate response to the wrong that was committed against so many people under these past discriminatory laws.
The bill cannot of course undo the harm already caused by that discrimination, not only to those who were convicted, but also to all those who lived under the shadow of criminalisation, and to LGBT people more widely, through the law giving the green light to widespread discrimination and prejudice.
Nevertheless, the bill is a very welcome piece of the jigsaw of measures needed to address the discrimination of the past and present.”
For me, that statement alone highlights exactly why the bill is needed. I welcome the cross-party support for it, and also the recognition that it is long overdue.
As other speakers have mentioned, section 1 is a clear statement of intent about what the legislation aims to achieve. It states:
“The purpose of this Act is to acknowledge the wrongfulness and discriminatory effect of past convictions for certain historical sexual offences by—
(a) pardoning persons who have been convicted of those offences, and
(b) providing for a process for convictions for those offences to be disregarded.”
Again, the briefing from the Equality Network is hugely supportive of that, and it highlights how far the bill goes compared with the Westminster legislation.
The unreserved apology from the First Minister in November laid out in no uncertain terms how important the bill is to the Government, and it was something that the whole Parliament could support. Although nothing that the Scottish Parliament does could erase the injustices of the past, it is hoped that the First Minister’s apology, alongside the bill, will provide some comfort to those who endured them. Where people were convicted of same-sex sexual activity that is now legal, the wrong was committed by the state and not by the individuals. They deserve the unqualified apology as well as the pardon, and that is why section 1, in addition to the First Minister’s unreserved apology, is so important.
Scotland has come a long way in many aspects of life. There are, of course, challenges daily, and there always will be in every country, with every Government and every legislature. However, we in Scotland sometimes seem to be the world champions in beating ourselves up. Even when we do something remarkable, many people will just shrug their shoulders and say, “We did all right.” I am sure that we have all said that. Today, every member of this Parliament who votes for the bill at 5 o’clock will do something that is more than just all right. We will do something remarkable—knowing full well, however, that the journey to equality is not yet complete.
The bill has been possible due to political leadership across all the parties, but also due to societal change. The Scottish social attitudes survey has shown that the number of people in Scottish society who hold a positive view of same-sex relationships rose from 37 per cent in 2000 to 69 per cent in 2015, while those holding negative views decreased from 48 to 18 per cent over the same 15-year period.
Considering how recently discriminatory laws were in force, it is remarkable but also inspiring that Scotland is now considered to be one of the most progressive countries in Europe when it comes to LGBTI equality. ILGA-Europe’s annual rainbow Europe index does not rank Scotland separately from the UK, but in 2018 it would place Scotland second based on current laws and policies. In the 2015 rainbow Europe index, Scotland was the best country in Europe for LGBTI legal equality.
It was this Scottish Government that introduced the historic same-sex marriage legislation, which was recognised by many as being among the most progressive in the world. It was this Scottish National Party Government that committed to reviewing and reforming gender recognition law so that it is in line with international best practice for people who are transgender or intersex. If any other party had undertaken those actions I would be equally proud of them, because those are the right things to do.
During the stage 1 debate, I concluded my comments by highlighting a person I knew. He sadly passed away a few years ago and was an intensely private man. We had no need or desire to know anything about his business, but we all knew him to be committed to two things. The first was independence and the second was the fact that he was gay. He would have been delighted today. He would have been in the gallery smiling and quietly reflecting on his journey and that of his friends, and the journey ahead, but he would also have been on the phone tomorrow to tell me what was next to be done. Tonight, at 5 o’clock, I will be voting for him, the respect that he always showed others and the respect that he is due from society and the political class that was once so intolerant but is now moving forward.
The comments made by the Law Society of Scotland during an earlier part of the bill process are accurate and just. It stated:
“Scotland is a tolerant society and is fully committed to respecting, protecting and implementing human rights and demonstrating equality, dignity and respect. The introduction of the Bill endorses that position.”
That is the type of Scotland that I am proud to live in. That is the type of Scotland that I want my daughters to grow up in and that is the type of Scotland that I want every citizen of our country to experience.16:21
Maurice Corry (West Scotland) (Con)
I extend my thanks to everyone who has brought the bill to stage 3 this afternoon.
I welcome the chance to speak in the stage 3 debate on this most important piece of legislation. At stage 1, I spoke in the debate about Parliament taking the next step in the process of righting a wrong. We will take the final step on this particular journey at decision time this evening.
Although of course this is an important step—and could be considered an historic moment—it is worth reflecting that it comes too late for many and that the hurt and discrimination felt by those affected, their families and their loved ones can never be removed.
I am also sure that those who receive disregards and pardons will be able to take some solace from the fact that we and the whole of society recognise that what they went through was wrong and that we are doing the very best that we can on behalf of society to show contrition.
At stage 1, I spoke about the changing attitudes that we are seeing towards equality in Scotland. During that debate, I spoke about the Scottish social attitudes survey of 2015, which showed that in just over 15 years the number of people in Scottish society holding a positive view of same-sex relationships had risen to 69 per cent and that the number holding negative views had decreased to 18 per cent, as has been mentioned.
In the stage 1 debate, I and others spoke about ensuring that the needs of the families of the men who were convicted and who have sadly passed away were considered, whether through the creation of a certificate or a letter of acknowledgement of the pain caused, so that some comfort and closure for the loved ones of deceased men with such convictions could be offered. I was glad that Mary Fee lodged an amendment to that effect at stage 2. The amendment was withdrawn after the cabinet secretary confirmed that the Scottish Government will put an administrative, rather than statutory, scheme in place to enable relatives of a deceased person to receive a letter of comfort. That is a good and positive conclusion to this part of the debate for all involved and it will bring comfort and closure for families.
In addition, I was glad to read in the Official Report of the stage 2 debate that the letters to families and relatives will be signed by none other than the First Minister. Having those letters signed by the most senior member of the Scottish Government sends a clear and strong signal of the importance that this country places on righting this wrong.
As the bill moves from being a proposal towards becoming the law of the land, the focus is on the Scottish Government to ensure that the administration of the disregards and pardons system is sound. Raymond McIntyre, criminal records manager at Police Scotland, told the Equalities and Human Rights Committee:
“it is about getting the right people involved in deciding how we structure the process and go about it.”—[Official Report, Equalities and Human Rights Committee, 8 February 2018; c 10.]
It is therefore important that the Government should co-operate and work closely with stakeholders in the design of the system, as the committee recommended. Police Scotland has said that the system needs to be clear and efficient. Detective Superintendent Houston said that, when an application comes in for a records search in respect of a disregard,
“there should be a clear, efficient and quick process”.—[Official Report, Equalities and Human Rights Committee, 8 February 2018; c 7.]
I agree, as I am sure that all members do. When the minister sums up the debate, it would be interesting to hear what discussions have been had in that regard, what steps have been taken and whether additional resources will be made available to Police Scotland to set up the system and do the work.
The work with stakeholders will need to ensure that the disregards scheme is as user friendly as possible, so that no one is put off applying. The amendment that Stewart Stevenson lodged at stage 2, which added a caveat to the requirement that applicants for a disregard provide their name and address at the time of the conviction, will be helpful to people who are unable to remember exactly where they were living such a long time ago. I commend him for making the scheme easier to access.
I am glad to have had this opportunity to speak in today’s important debate and to vote this evening for a bill that will take Scotland a step further towards true equality for all our citizens. I am sure that Alan Turing would be proud of us.16:26
Richard Lyle (Uddingston and Bellshill) (SNP)
I welcome the opportunity to contribute to this most important debate, at a historic moment for Scotland on our journey towards creating a more equal country for all.
I have heard people ask why we introduced the bill. The answer is simple: it is clear and it is absolutely right that we in this Parliament want to address the injustice that people experienced simply because of their sexual orientation—for being who they are; for being themselves—and the bill will ensure that, together, we address that historical wrong.
How does the bill do that? It provides a form of redress against the discriminatory effect of men having been convicted of same-sex sexual offences in the past, for activity that is now legal. The bill has a symbolic and a practical value. It provides an automatic pardon to men who were convicted for same-sex sexual activity that is now legal and it enables those men to apply to have the convictions removed from central criminal conviction records.
The bill provides for a pardon for those who were convicted of criminal offences when engaging in same-sex sexual activity that is now legal; it will also put in place a system to enable a person with such a conviction to apply to have it disregarded, so that information about the conviction that is held in records, which are generally maintained by Police Scotland, does not show up in a disclosure check.
That is so important to so many people. The information that is held on police records is a matter of great concern. Just recently, I dealt with a case that related not to the subject of today’s debate but to the records that were held on a young woman who is seeking to become a teacher. A historical conviction was incorrectly recorded as an adult conviction, as she should have been dealt with as a child. That had happened many years ago, but the conviction would show up time and again and was hindering her in her ambitions to become a teacher. I am thankful that as a result of my persistence Police Scotland has changed its weeding and retention rules. My constituent can look forward to the information no longer being displayed and to getting on with her life. I was very happy to help her.
Many men who were historically convicted of discriminatory offences will also feel relieved that they can get on with their lives. The bill sends an unequivocal message of pardon to everyone who was convicted of an offence for activity that is now legal. The law should not have treated them as criminals and they should not now be considered to be criminals. The Scottish Parliament recognises that a wrong was done to them.
I am proud that Scotland is a very different place than it was 30 or 40 years ago in terms of the attitudes held by much of the population towards same-sex sexual activity, but the discriminatory effect of those laws lingers on. Indeed, until recently, criminal law in Scotland discriminated against same-sex sexual activity between men, with such activity, in itself, a criminal offence in all circumstances as late as 1980. That law applied wherever the activity took place, including private homes. It was only in January 2001 that the age of consent for sexual activity between men and sexual activity between opposite-sex partners was equalised at 16. There have been many other examples of laws that could have been used in a discriminatory manner, including in common law.
As I said, although it is overwhelmingly likely that such historical convictions will be spent convictions under the Rehabilitation of Offenders Act 1974, and so would not be disclosed on a basic-level disclosure, it is still possible that they would be disclosed when a person applies for a role for which a higher-level disclosure certificate is required. That cannot be accepted in our modern, progressive Scotland.
During the time that I have been a parliamentarian, this Parliament has done some amazing things and has passed legislation that truly changes lives. I hope that today will be another example of that. It also provides an opportunity, beyond legislation, to send a clear message to communities across Scotland, and I believe that our First Minister, as has been said, did something that legislation in itself cannot do, by providing an apology in Parliament. In that apology, the First Minister stated:
“Those laws criminalised the act of loving another adult; they deterred people from being honest about their identities to family, friends, neighbours and colleagues”.—[Official Report, 7 November 2017; c 8.]
I am proud to be in the SNP that has committed to reviewing and reforming gender recognition law so that it is in line with international best practice for people who are transgender or intersex. When considering that action, I often think of a speech that I heard at an SNP conference, made by a young person who spoke of their requirement to identify as either a man or woman on a form and of not knowing what to put down, because they did not necessarily identify as either. We need to deliver for our communities and ensure that that is not a situation that young people, or anyone else, has to face. That is why I will certainly support the Government in the further legislation that I am sure will be introduced in regard to transgender identities.
I valued hearing the contributions to today’s debate from colleagues from across the Parliament, and I look forward to supporting the bill later on this afternoon.
The Deputy Presiding Officer
We now move to the closing speeches. I call Mary Fee to speak for a relaxed seven minutes.16:33
Mary Fee (West Scotland) (Lab)
Thank you kindly, Presiding Officer. As a member of the Equalities and Human Rights Committee, I am pleased to have the opportunity to close on behalf of the Scottish Labour Party in this debate on this historic piece of legislation. I, too, would like to take this opportunity to thank my fellow committee members and the committee clerks for their diligence throughout the legislative process.
As others have done, I would also like to record my personal thanks to Tim Hopkins of the Equality Network for his continuing help and support. Throughout the passage of not just this piece of legislation, but any piece of LGBTI legislation, Tim Hopkins is very much our go-to person. I thank him particularly for the support that he gave me during the passage of this bill, especially in the amendment stage.
This afternoon’s debate has been a consensual one and has shown the power of the Scottish Parliament to make real and meaningful change when there is a clear commitment from and consensus on all sides of our chamber. We have heard a range of emotional and passionate speeches in support of the bill. It would be difficult in the relatively short time available—I know that it is relaxed, Presiding Officer, but it is still relatively short—to fully reflect on all the contributions in today’s debate.
I can say that speeches from across the chamber have reflected the support that this legislation has and the fact that we clearly recognise the need to correct a historic wrong, and I would particularly like to mention Derek Mackay’s very brief intervention, which gave an accurate description of where we have been and what we still need to do. I know that Derek Mackay does not get the opportunity to speak very often—
Not on these matters, anyway.
I am grateful that he took the opportunity to intervene today.
I share the concern that Patrick Harvie raised about the pace of change and how long cultural change takes, and I, too, would like to see changes moving at a faster pace. However, we are on a journey, and I think that we are moving along apace.
I do not think that I have ever stood to close a debate for the Labour benches and said that I have felt honoured and proud to be part of the debate. However, today, that is what I am.
I take this opportunity to place on record my thanks to the Cabinet Secretary for Justice for his constructive engagement in relation to my proposed amendments at stage 2. As others have mentioned, I proposed an amendment that would have required the Scottish Government to provide a letter of comfort to the families of deceased people with convictions for historical sexual offences. I had raised that issue throughout our evidence-taking sessions, and the hurt and the damage that has been done to individuals and their families is something that the Equality Network and I were keen to find a way to resolve. After receiving assurances from the Cabinet Secretary for Justice and an assurance that dialogue with the Equality Network would continue on the matter, I withdrew my amendment. I am extremely pleased that the Scottish Government will look to put in place an administrative process that will provide the relatives of the deceased person with a letter of comfort. Most important is that each letter will be personally signed by the First Minister, which gives a clear statement that a wrong was done to the family’s relative.
The Historical Sexual Offences (Pardons and Disregards) (Scotland) Bill is a historic and critically important piece of legislation. It is right that we acknowledge that Scots law acted in a repressive manner in its treatment of gay men. Until recently, the law in Scotland actively criminalised and discriminated against thousands of men on the basis of their sexual orientation. The bill admits that the state was unequivocally wrong to treat gay men as criminals. However, the bill also says much about the country that we aspire to be. It makes an important statement that Scotland is a country that firmly rejects discrimination and celebrates our LGBTI community, and supports them to be full and equal citizens who are treated with respect.
In a global context, it is important to remember that, although progress has been fought for and won by the LGBTI community, same-sex relationships are still criminalised in 72 countries and are punishable by death in eight countries. Even in countries where same-sex relationships are legal, such as Egypt and Russia, gay men and gay women continue to experience significant discrimination, harassment and stigmatisation. The battle for LGBTI equality has no borders, and it is important that Scotland continues to play a constructive role on the international stage by promoting LGBTI quality and by denouncing all examples of homophobia, biphobia and transphobia.
It is also important that the pardon and the disregard in the bill, and the difference between them, are well publicised. As the Equality Network pointed out in its briefing, there will be many people with these convictions who are not in contact with LGBTI organisations, so I welcome the cabinet secretary’s commitment to work with LGBTI organisations to publicise the pardon and disregard, including to those who live in rural and remote communities.
It is evident that the legacy of convictions, fines and warnings as a result of the discriminatory laws that prohibited sexual activity between two men in Scotland has had an enduring, damaging and hurtful impact on thousands of men’s lives. The bill cannot undo the discrimination and persecution experienced by those men. However, I hope that the pardon and disregard system outlined in the bill, and the letter of apology from the First Minister that the Scottish Government has committed to providing, can provide those men and the families of deceased men with a small degree of comfort.
I will be proud to cast my vote in favour of passing the Historical Sexual Offences (Pardons and Disregards) (Scotland) Bill at decision time.
The Deputy Presiding Officer
I call Jamie Greene for an equally relaxed eight minutes.16:40
Jamie Greene (West Scotland) (Con)
I am very relaxed, thank you, Presiding Officer.
I open my comments today, perhaps unusually, by reading from a book. I cannot recall whether I picked it up in a Soho bookshop after a few too many sherries or whether it was gifted to me by a friend with a sense of dark humour, but this little book is called “Homosexuality”. It was written by Dr Donald J West, a renowned psychiatrist, in 1955, and published by Penguin Books, the well-known publisher that produced greats such as “Pride and Prejudice” and “Alice’s Adventures in Wonderland”.
As far as gay guides go, it is not a great read, but I dare say that in the 1950s it was all rather enlightening, educational and perhaps even ground breaking. Let me read from chapter 10, which is entitled “Cause, Cure and Treatment”:
“Given a simple choice, no one in his right mind would choose to be a homosexual. However strongly they protest their freedom from conventional morality, sexual deviants cannot escape a lurking guilt. The fact that many decent folk regard them as moral lepers renders them furtive and unsure, or else forces them into flaunting bravado. Though they wear no visible crutches, their disability is real enough. The large number of otherwise respectable men arrested for loitering in public lavatories gives some indication of the depths of frustration to which many sink.”
We cannot go back and change the past, neither deeds nor attitudes, and it is fair to say that the views in this 60-year-old book, which seem so absurd to us, were quite normal then. Indeed, as I read the book there is a tone of sympathy about it—perhaps even an earnest desire to understand the condition of homosexuality. Dr West looked at it from a medical, psychoanalytical, or perhaps even Freudian, point of view.
Today, the slogans on the T-shirts that we wear at pride say, “We’re gay, get over it”, and, as Liam Kerr said, quoting Kezia Dugdale,
“there is no such thing as ‘gay sex’—it is just sex”.—[Official Report, 18 April 2018; c 51.]
In passing the bill today, we should remember the gross injustices faced by tens of thousands of men who suffered at the hands of legal, social and political discrimination on the grounds of who they chose to love, kiss, meet or sleep with. If Mr George Montague will not accept our pardon, I ask him to accept our apology, at the very least.
The bill is what it is—a pardon, a disregard and an apology. To some, the bill we will pass this evening is nothing more than symbolic, and it is right for that to be the case. However, to others the bill is also a practical step forward to alter criminal records that have held them back in life and even today are causing pain and misery to so many.
This afternoon, as we sit here in our modern Parliament, being televised live, it is easy to scorn and mock the lawmakers of the past. However, it is misguided simply to look back with a sense of 21st century moral superiority and some sort of faux confusion about how on earth people could have said things like that or acted in such a way. What seems old-fashioned to us was right and relevant to many in bygone years.
Perhaps we will look as draconian and unacceptable to the next generation as the people of the duffel-coated, bowler-hatted generation of this book look to us. They were different times and different people, but these are different times and we are different people—most of us, anyway. I say that not in mitigation of the appalling views that we seek to make amends for today, but to point out that at 5 o’clock this evening our job is not yet done—it has only just started.
Names eponymous with the history of gay rights, such as Lord Montague of Beaulieu, Alan Turing, Oscar Wilde, Harvey Milk, John Wolfenden, Karl Ulrichs, Larry Kramer, Audre Lorde and Barbara Gittings have been joined by modern names such as Terrence Higgins, Peter Tatchell, and Albert Kennedy—even modern icons and role models such as George Takei and Ellen DeGeneres as well as organisations such as Stonewall, the Equality Network, LGBT Youth Scotland, and the TIE campaign. For that matter, let us add Scotland plc to that list. We may have lost our spot at the top of the ILGA-Europe report on equality—to Malta, I should add—but we have made legal progress in Scotland, if not social progress.
At this point, I will touch upon the only thorn in the bush of today’s debate, which has otherwise been quite consensual. That is the important issue of moral choice, religious freedom, the law and how we vote as individuals in this Parliament. I have been out for 22 years and it is fair to say that I have come across many people in my life who hold strong religious views against my sexuality. Those views are not restricted to the Christian faith, either. Some of those people have been business clients; some have been colleagues; and some have been neighbours, or even acquaintances. As intolerant as I find their views, I have always found a way to find a mutual common ground for respect with the majority of those people. I do not throw my private life in their face, but nor do I expect them to throw their views in my face. We must listen to each other if we are to make progress.
Patrick Harvie rose—
I have a lot to get through, Mr Harvie.
The passing of today’s bill is a chapter in righting the wrongs of the past and it is important, but it is not enough in itself. We may think that we are beacons of modern liberalism and acceptance today, but perhaps in decades to come people will look back at us and wonder why we were still having debates in this Parliament about a society and a culture in 2018 in which a third of young LGBTI people in Scotland have been victims of hate crime as a result of their sexuality; where 43 per cent of young LGBT people have self-harmed and, astonishingly, over half have had suicidal thoughts; and where 71 per cent of young LGBT people have experienced bullying in school as a result of their sexuality—a level of bullying that has gone up by 10 per cent in the past 10 years. Shame on us if we think that our job is done today.
I am grateful to the member for giving way on one of the few issues that we debate in here on which we are probably on the same page, pretty much 100 per cent.
However, does he agree that because we do not just have private lives—we are also in public life—it is absolutely essential, if we want to see the further progress that he is talking about, that our voters know where we stand on these issues when they look up the record of how members in this Parliament have voted so, on issues such as this one, members should vote in accordance with what they truly believe?
The Deputy Presiding Officer
I can give Jamie Greene the time back for that intervention.
Yes; the record will show members’ voting patterns. I like to think that people in this place vote according to what they believe. Yes, we have party whips, and yes, we have conformity with party views. However, it is absolutely down to individuals who have to face the public after today to say, “This is how I voted and this is why I voted in that way.” I hope that people will vote for what they believe in rather than just vote because they think that it is the right thing to be seen to be doing.
The term “gay” used to mean happy in the days when that book was written. However, it has also been used as a way to describe deviance and immorality, and sexual choice or preference. It morphed from a sexuality and an adjective into a noun and a label. Today, there are young people sitting at home who are too scared to go to school because they are still being called gay as an insult on a daily basis, just as people did in the 1990s, when I was at school. In that respect, nothing has changed.
Our job will be done when being gay once again means to be happy, because everyone has the right to be happy and the right to live their life as they please, to sleep with who they please, to marry who they wish to marry, to apply for the job that they are qualified for, and to look back with no sense of shame or remorse.
Just as we are putting an end to the stigma of wrongful past convictions through this bill, we must also put an end to the stigma that sexuality still has in today’s society. Future generations may not need legislation to pardon our legal wrongdoings, for there are none, but they may need to apologise for the way in which we are failing our young people today.
I add my voice to those who have spoken to the people whom this bill seeks to pardon. We apologise for the actions of others in the past. We are sorry. I am sorry.
However, what better way to pay tribute to the people whose lives were ruined by discrimination than by committing today—collectively, as politicians, as parties and as a Parliament—to eliminate stigma and discrimination from the lives of every LGBTI youth in Scotland. Just as we judge the actions of those in the past, so we too will be judged by our actions.16:50
I welcome the many positive contributions to the debate from across the chamber. Often when we have stage 3 debates, we talk about the value of legislation and the direct impact that it can have on individuals. We can miss the point about how legislation can itself inspire change and send out a clear message, which can often be its most lasting legacy.
That brings me to Derek Mackay’s point, which he made in his intervention on Pauline McNeill. His point was that an important element of the bill, apart from its seeking to right the wrongs of the past, is that it sets our course for the future—a course on which we will not tolerate any form of discrimination in our society. The bill should not be about looking to erase the past—Patrick Harvie was correct to point that out—but about putting right a historical wrong that took place over many years. Many members have today apologised and have expressed their support for righting that wrong.
Daniel Johnson spoke about our opportunity to reflect on where we are as a society, and on the values that we seek to set for a modern Scotland. He also reflected on how it has taken us so long to arrive at this point in the journey of ensuring that we deliver equality in our society. I agree that it has taken too long to arrive at this point, but although we have been in the slow lane for many years, we all recognise that Scotland has been in the fast lane in recent years in making sure that we address the deficits of the past in order to create a modern inclusive Scotland.
A key part of that is not just that we get it right in Scotland, but that we stand up internationally to recognise the value of equality in every society. Pauline McNeill made the point that 37 per cent of countries continue to have legislation that discriminates against individuals based on their sexuality. Part of our effort should be to add our voice to international voices about the need for greater progress in those areas.
I will turn to specific aspects that have been raised in the debate. Although we can right the wrongs of past state-sponsored discrimination that legislation forced on individuals, we cannot always address the pain that has been caused to families and individuals as a result of those actions. I recognise that although we are creating a system that enables and provides for those who will have the opportunity to apply for a disregard and to have the conviction removed from their criminal record, for those who will not be able to do so, it will leave a difficult legacy.
The amendments that were lodged by Mary Fee at stage 2 therefore provided a good opportunity to set out the posthumous disregard arrangements that we will put in place. There will be provision for family members to make representations and to set out what they understand was the nature of the incident, and for us to give consideration to that. A letter of comfort can be issued that will set out clearly that it is a conditional disregard that is based on the information that they have provided. That will be on the basis that, had the deceased person been in a position to apply for a disregard, it is likely that they would have been given one.
I emphasise the importance of having a simple application process. It will be critical to success that people feel that the system is user friendly and easy to access. To give added assurance about our commitment to ensuring that the system works as effectively as possible, we are making legal aid provisions available to those who seek legal representation in making an application to the disregard scheme and, should they seek to appeal a disregard decision that is not in their favour, to allow them to challenge that decision.
It is important that we ensure that people who could benefit from the scheme are aware that it is in place. Those of us in the Holyrood bubble who are aware of the bill, and those who are involved in different forms of politics in their local communities may be able to spread the word, but the reality is that many people are not involved in that environment and will not be aware. That is why I am absolutely committed to ensuring that a central part of the implementation of the legislation will be the public information campaign that we will run to try to reach as many people in Scotland as possible to make them aware of the provisions. We will do that in a way that reaches not just our cities and towns, but which goes right into our rural areas and island communities to ensure that people are aware of the scheme and how it operates.
On that specific point, will the cabinet secretary commit to keeping Parliament up to date as the strategy is produced, detailing what it will involve and how the message will be got out to people, including information on any budget that he may put behind it?
I am more than happy to do that. If it would help, I am more than happy to ensure that information is provided to the Equalities and Human Rights Committee on an on-going basis on the progress that we are making in a number of areas that need to be taken forward, following the passage of the bill. There are the public information elements and, obviously, regulations will be introduced on the legal aid provisions and the posthumous disregard arrangements. We will ensure that Parliament is kept informed of progress that we make on this important matter.
Annie Wells said in her opening comments that the bill is “a landmark”. She is right. From my perspective, it is somewhat unusual to arrive at stage 3 with no amendments having been lodged, but that in itself is symbolic of how Parliament has come together and is united in its determination to take forward the legislation.
I am grateful for the way in which the Equalities and Human Rights Committee has considered the bill. As Christina McKelvie said, the bill matters, because today we have an opportunity to vote with pride to ensure that we right a wrong. The bill matters because we are improving the lives of people who have been discriminated against by legislation as a result of their sexuality.
It is right that, at decision time tonight, we will right the wrongs of the past, as we set our course for the future modern Scotland that is tolerant, inclusive and outward focused in sharing our stories and experiences with other parts of the world, and in seeking to spread equality and opportunity across all countries. Tonight, we have an opportunity to put right that wrong with pride and, as Stewart Stevenson said, with gladness in our hearts by voting for the bill.
6 June 2018
Final vote on the Bill
After the final discussion of the Bill, MSPs vote on whether they think it should become an Act.
Final vote transcript
The Presiding Officer (Ken Macintosh)
The first question is, that motion S5M-12572, in the name of Michael Matheson, on the Historical Sexual Offences (Pardons and Disregards) (Scotland) Bill at stage 3, be agreed to. As this is a question on legislation at stage 3, members will have to vote and should cast their votes now.
Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bibby, Neil (West Scotland) (Lab)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Corry, Maurice (West Scotland) (Con)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Davidson, Ruth (Edinburgh Central) (Con)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dugdale, Kezia (Lothian) (Lab)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (West Scotland) (Con)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greene, Jamie (West Scotland) (Con)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Harris, Alison (Central Scotland) (Con)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lochhead, Richard (Moray) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Marra, Jenny (North East Scotland) (Lab)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mason, Tom (North East Scotland) (Con)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McNeill, Pauline (Glasgow) (Lab)
Mundell, Oliver (Dumfriesshire) (Con)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Sarwar, Anas (Glasgow) (Lab)
Scott, John (Ayr) (Con)
Scott, Tavish (Shetland Islands) (LD)
Simpson, Graham (Central Scotland) (Con)
Smith, Elaine (Central Scotland) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Smyth, Colin (South Scotland) (Lab)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, David (Highlands and Islands) (Lab)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Tomkins, Adam (Glasgow) (Con)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Whittle, Brian (South Scotland) (Con)
Wightman, Andy (Lothian) (Green)
Yousaf, Humza (Glasgow Pollok) (SNP)
The Presiding Officer
The result of the division is: For 119, Against 0, Abstentions 0.
Motion agreed to,
That the Parliament agrees that the Historical Sexual Offences (Pardons and Disregards) (Scotland) Bill be passed.
The Presiding Officer
The second question is, that motion S5M-12599, in the name of Joe FitzPatrick, on approval of a Scottish statutory instrument, be agreed to.
Motion agreed to,
That the Parliament agrees that the Environmental Authorisations (Scotland) Regulations 2018 [draft] be approved.
6 June 2018