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.