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.
I move,
That the Parliament agrees that the Historical Sexual Offences (Pardons and Disregards) (Scotland) Bill be passed.
[Applause.]