Historical Sexual Offences (Pardons and Disregards) Bill: opening speech

Speech by Cabinet Secretary for Justice Michael Matheson to the Scottish Parliament.

Presiding Officer, I would like to begin this debate 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) Bill.

I would also like to thank the external stakeholders who took the time to engage both in the development of the legislation and in the Parliament's scrutiny of the Bill. Their input has been valuable in helping understand the benefits this Bill will bring and where improvements could usefully have been considered.

In particular, Tim Hopkins of the Equality Network has been enormously helpful in sharing his knowledge with the Scottish Government and with the Parliament.

Members will know Tim has spent many years campaigning to bring about equality and improve the human rights situation of lesbian, gay, bisexual, transgender and Intersex people in Scotland and he should take credit for his excellent work in helping shape the final content of the Bill.

Presiding Officer, I think it is entirely right to thank those individuals who gave evidence to the Committee of their own experience of the discrimination that came about simply because they were gay.

Think about that for a moment? Discrimination simply because of someone's sexuality.

It seems a lifetime ago, but actually the specific laws that perpetrated such discrimination were only removed from the statute relatively recently with, for example, the age of consent only equalised in 2001.

In the scrutiny of this Bill, much has been made of the progress that has been in Scotland in recent years in terms of improving equality.

Yet much remains to be done and this Parliament should continue to explore where discrimination exists and what action can be taken to help reduce and eliminate such discrimination. This Bill is a continuing part of this process.

Members will be aware that the Bill makes provision in two distinct, but connected areas:

  • Firstly, 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
  • 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 as, for example, part of an enhanced disclosure check.

The distinction between the two is important.

The pardon is automatic and symbolic. If a person has received a conviction for what is a historical sexual offence, then they receive the pardon.

There has been some comment about whether a pardon is the correct approach. To pardon something can be seen as to excuse it, but still suggest it was something that was wrong.

We understand these concerns.

That is why the First Minister stood up in this Parliament in November last year and spoke for everyone in this chamber in formally apologising.

I think it is worth reminding ourselves what the First Minister 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.'

Presiding Officer, let me briefly explain about the disregard.

The disregard scheme is a practical measure to address the fact that those who were convicted for engaging in same-sex sexual activity can continue to suffer discrimination as a result of those convictions.

While it is likely that any such convictions are now spent under the terms of the Rehabilitation of Offenders Act, and therefore would not routinely be disclosed when, say, going for a job that does not involve working with vulnerable groups, we accept there is a risk that such convictions could continue to be disclosed when a person is applying for a role, for example, working with children or vulnerable adults, which require an enhanced disclosure check, which includes information about spent convictions.

An application is required for a disregard. However, let me reassure members that the Scottish Government, who will administer the scheme, intend to keep the process and bureaucracy to an absolute minimum.

The briefest of details are all that will be required to allow an application to be made.

A person's name and contact details. Any information about the conviction such as the location.

Presiding Officer, I know there were concerns expressed during the scrutiny process about the complexity that might be involved in applying.

That is not the intention of the Scottish Government and I can confirm 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 received with an application, the Scottish Government will explore with relevant record keepers such as Police Scotland whether information is held about the conviction to inform a decision whether to grant a disregard.

Presiding Officer, as the Committee have highlighted in their 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 convictions they have for same-sex sexual activity that is now lawful are removed from the criminal history system must apply for a disregard.

I can assure the Committee that guidance material that the Scottish Government produces will make this point clear.

During Stage 2 of the Bill, there was considerable debate about ensuring people understood why a pardon was being offered and why the pardon had to be seen within the wider context of this legislation and the apology given by the First Minister.

That is why when a disregard is granted, I can confirm that the Scottish Government will make clear to recipients what the First Minister said when apologising so that there is no misunderstanding as to the nature of why a disregard has been granted and a pardon triggered.

Presiding Officer, in beginning my conclusion, I think it is worth highlighting the excellent cross-party support this Bill has received.

All members of the Human Rights and Equalities Committee have very effectively scrutinised the Bill always seeking to improve what is there in a collaborative and helpful spirit.

It is how legislation should be done whenever possible.

No-one needs reminding of the damage done to people's lives by these discriminatory and unjust laws. And that such damage cannot be undone.

Unfortunately, for many decades, Parliamentarians in Scotland supported, or, at least, tolerated, laws which criminalised the act of loving another adult.

A variety of people were harmed.

Those men who were convicted of offences completely unjustly. Lives affected and in some cases probably destroyed.

Men who while were not convicted were living at a time when the risk was there that they would be criminalised. And so had to adjust their behaviour.

But also the families and friends of these men. Witnessing loved ones not being able to be true to themselves.

The ramifications of these unjust laws spread far and wide.

These laws deterred people from being honest about their identity to:

  • family,
  • friends,
  • neighbours and
  • colleagues

These laws sent a horrific message that homosexuality was wrong and so they encouraged rather than deterred homophobia and hate. A week after the independent review on hate crime reported its findings recommending further action to help tackle hate crime, it is pleasing that it is laws designed to protect an individual's identity that is the focus of attention rather than the type of overt discrimination captured within our old criminal laws.It is also however a sign that while we should all welcome Scotland's modern open and inclusive approach on equality issues, there is still discrimination lurking and that is sadly why hate crime laws continue to be necessary at all.

Presiding Officer, this Bill makes absolutely clear, through the pardon, that this Parliament acknowledges that those who were convicted of offences for engaging in same-sex sexual activity had done nothing wrong.

By establishing a disregard process, it 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.

And seen within the context of the apology offered by the First Minister and all the political parties in this chamber, this is a proud day for this Parliament and a proud day for Scotland.

Presiding Officer, I move that the Parliament agree that the Historical Sexual Offences (Pardons and Disregards) (Scotland) Bill be passed.

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