Equalities and Human Rights Committee

Meeting date: Thursday, September 12, 2019

Official Report 652KB pdf

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Subordinate Legislation

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Historical Sexual Offences (Disregarded Convictions and Official Records) (Scotland) Regulations 2019 [Draft]

Good morning, everybody, and welcome to the 20th meeting in 2019 of the Equalities and Human Rights Committee. I ask everyone to switch off their mobile phones and put them away.

Under agenda item 1, the committee will take evidence on the draft Historical Sexual Offences (Disregarded Convictions and Official Records) (Scotland) Regulations 2019. I welcome the Cabinet Secretary for Justice, Humza Yousaf, and his officials Linsay Mackay and Patrick Down, who are policy officers in the criminal justice division of the Scottish Government. The item is a chance for members to put any points to the cabinet secretary and officials or to seek clarification on the affirmative instrument before we formally dispose of it. The motion that seeks approval of the instrument will be considered under item 2. I refer members to paper 1 in their packs and invite the cabinet secretary to make an opening statement.

Good morning, convener, and thank you for the invitation. I will keep my remarks brief.

The regulations that the committee is considering are an important final step in implementing the Historical Sexual Offences (Pardons and Disregards) (Scotland) Act 2018, which will come into force on 15 October this year. Members will recall that that act provides for a system of disregards in which applications can be made to the Scottish Government for convictions to be removed from official records if certain criteria are met, as laid down in the act. The purpose of removing convictions is to ensure that they can never appear in any future criminal record disclosure check.

The purpose of the regulations is to provide for the different means by which the disregarded convictions may be removed from official records. Flexibility in the method of removal is important, because records that relate to historical convictions are in a range of different formats, and straightforward deletion of the record might not quite be possible. For example, information about a disregarded conviction may be kept on a physical microfiche document, and it might not be possible to delete material that is contained in a document of that sort. That is why the regulations provide that a disregarded conviction can be removed by deleting the record, redacting the part of the record that relates to the disregarded conviction, or annotating the record to make it clear that the conviction has been disregarded and that it should never be disclosed in response to a request for information about a person’s convictions.

The regulations specify the bodies that are to be treated as relevant record keepers with responsibility for removing information about such convictions from official records that are held by them following a successful application for disregard. Relevant record keepers are organisations that may hold information about disregarded convictions that could, in certain limited circumstances, be disclosed to a third party that is seeking information about a person’s criminal history.

The regulations provide that Police Scotland, the Scottish Courts and Tribunals Service, the Crown Office and Procurator Fiscal Service and the Scottish ministers acting in their capacity as the holder of official records maintained by Disclosure Scotland are to be regarded as relevant record keepers for the purpose of the disregard scheme. All those bodies are content to be specified as relevant record keepers in that way.

The removal of disregarded convictions is an important practical measure to address the discriminatory effect that those convictions can potentially continue to have on a person’s day-to-day life by ensuring that the person cannot be prejudiced in the future by their disclosure.

I am, of course, happy to take questions.

Thank you, cabinet secretary. Do committee members have any questions or comments?

I would like to ask a small follow-up question.

I am sure that I speak for the rest of the committee in saying that the cabinet secretary has our good will with this Scottish statutory instrument. I will certainly support it.

The cabinet secretary has talked about historical records that are contained on microfiche and other things that are much harder to locate or change physically. Is there a scale to that, or is that a seldom happenstance?

Police Scotland will be the primary record keeper. It will primarily have the information that we would expect on a person’s convictions.

On the scale of what is involved in deletion, redaction and annotation, if the police records are on an information technology system, for example, deletion will be the easiest and simplest approach. However, I am not entirely sure of the scale, so I will look to the officials to see whether they have an idea of the numbers. Police Scotland would certainly have the most information in its systems.

The more historical records that are held by the National Records of Scotland and, potentially, the Scottish Courts and Tribunal Service might be kept on microfiche. I confess that I have never seen a microfiche in real life, but I am sure that I will at some point. Annotation or redaction might be required. Patrick Down might want to come in about the scale—

Before you bring in Patrick Down, I guess that my first question was not clear. I am surprised to hear that there are still criminal records that are held only on microfiche and that they have not all been translated to IT files. I understand if they are historical files about people who are dead but, for files on people who are living, is that work still on-going or just not planned?

I will ask Patrick Down to come in in a second. Families can apply posthumously for somebody who has passed away to be recognised for a pardon. They will get a letter of comfort in that regard, so there is that element. Patrick might have more detail.

Perhaps it is helpful to draw a distinction between the police criminal history system, which is the primary source of information about the criminal records of a person and is now all on IT, and records about historical cases, which are usually held by the National Records of Scotland on behalf of the Scottish Courts and Tribunals Service.

Occasionally, when organisations such as the General Teaching Council for Scotland or Social Work Scotland are doing background checks, they go to the Courts and Tribunals Service for information about a person’s criminal convictions, rather than going to the police. I do not know how common that is and we might be addressing a problem that is theoretical rather than real. However, we need to provide assurance that all the possible sources that people might go to for a person’s criminal history are covered, whether that is the formal disclosure check system or bodies that have various powers to look into people’s criminal history. I expect that, in practice, people go almost exclusively to the police records, but we cannot be certain of that.

That makes things much clearer. Thank you.

When we were considering the Historical Sexual Offences (Pardons and Disregards) (Scotland) Bill, we took evidence from Tim Hopkins, who I am sure everyone around the table knows well. Although he was supportive of the bill and the disregard scheme, he raised the point that it was important that we did not rewrite history by deletion or redaction. Is the cabinet secretary confident that what is being proposed and what is being done will not alter the history of what happened to men over the years in this country?

That is a good point. Like all the committee members, I have much time and respect for Tim Hopkins and his views, which clearly carry weight.

That is why it was so important for us to have flexibility in how the records are treated. It is almost precisely the point that Patrick Down made. People might go to the National Records of Scotland, look at the microfiche documents of court cases from the 1970s, 1980s and, perhaps, before, and see a pattern of laws that were used discriminatorily against gay men. That is why annotation might be important. Even if they took place in the lower courts, we would not want to delete all those cases. If we deleted them, people might say, “What the heck is the problem?” That is why annotation or redaction is so important.

I am confident with what we have. We took that into consideration. That is why there is a degree of flexibility in how the records can be amended, deleted, annotated or redacted.

Thank you.

To be clear, in relation to the option for removal by annotation, is it the Scottish Government’s intention that any annotation makes it clear that the annotated material is to be treated as having been removed?

Yes.

Thank you.

If there are no further questions or comments, item 2 is formal consideration of the motion on the affirmative instrument. The Delegated Powers and Law Reform Committee has considered and reported on the draft regulations and had no comments on them. The motion will be moved and then there will be an opportunity for formal debate, if that is needed.

Motion moved,

That the Equalities and Human Rights Committee recommends that the Historical Sexual Offences (Disregarded Convictions and Official Records) (Scotland) Regulations 2019 [draft] be approved.—[Humza Yousaf]

Are there any further comments from committee members?

Members: No.

Cabinet secretary, do you need to wind up or are you content?

I am content. As people have said, the draft regulations are hugely important in relation to the 2018 act. The pardon and the disregard are important both symbolically and in their practical effects for the individuals involved, so I have been delighted to move the motion and I hope to get unanimous committee support for it.

Motion agreed to,

That the Equalities and Human Rights Committee recommends that the Historical Sexual Offences (Disregarded Convictions and Official Records) (Scotland) Regulations 2019 [draft] be approved.

That concludes consideration of the instrument. The committee’s report will note and confirm the outcome of the debate. Does the committee to agree to delegate to me as convener authority to clear the final draft of the report?

Members indicated agreement.

Thank you. I thank the cabinet secretary for attending.

I will suspend the meeting briefly to allow a change of witnesses.

08:56 Meeting suspended.  

08:59 On resuming—