 We welcome to this third meeting of 2018 of the equality and human rights committee. We are going to make the usual request of mobile devices switched off, and mobile phones are off the table. We will go straight into agenda item 1 this morning, which is our first evidence session on consideration of the historical sexual offences, pardons and disregard bill. Today marks the start of LGBT history month in the UK. This year sees several important anniversaries in the movement for same-sex equality. 2018 is 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 is a member of the San Francisco City Council. His life and work inspired a generation of LGBTI politicians to seek election and begin to turn the tide of hatred and discrimination against LGBTI people. 2018 is also the 30th anniversary of the passage of the local government act of 1988, which contained the controversial section 28 provisions prohibiting local government from promoting homosexuality in schools. The Scottish Parliament led the way in repealing section 28 in one of its very first acts. The work of this committee has also led to the current LGBTI inclusive education working group, which is currently working with Scottish ministers to ensure all forms of LGBTI discrimination and prejudice. Despite that progress, however, to this day the discrimination of the past still casts a long shadow over the lives of many LGBTI people in Scotland. That is why it is so fitting that our main item of business today is a renaugural oral evidence session on the historical sexual offences pardons in Disregards Scotland Bill. The bill seeks to write 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 in front of us today, and that is Tim Hopkins, who is the director of the equality network. Tim, we are very grateful for your written evidence and we are incredibly grateful for you to come along and speak to us today. I am hoping that you can give us an opening statement on the bill and what you think it will do in areas where we need to tighten up. Thank you very much indeed for inviting me along and thank you for those comments. As you said today is the first day of LGBTI history month and I think that this is making history in fact this bill. I wanted to say two things about the bill. The first one might sound slightly negative but I think that it is important to recognise the limitations of this bill. The limitations of what this Parliament can do to, as the policy memorandum says, lift the burden of these convictions and the history of the discriminatory laws that affected gay and bisexual men. I think that the First Minister got this right when she made her statement of apology in the chamber on the day the bill was introduced. Amongst other things she said, nothing that the 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. I think that that gets the balance exactly right. The discriminatory laws that criminalised gay and bisexual men did not just affect the people who ended up with convictions. Those people were hugely affected, many of them. I'm sure I'm afraid to say that some of them will have taken their own lives as a result of the convictions. Some spent time in prison. Those who are only fined will undoubtedly have been affected in important ways by the conviction. The criminalisation also affected all gay and bisexual men in the 20th century. People lived under the shadow of the fear of being discovered and prosecuted, so people had to live double lives. That criminalisation, although it only applied to men and women weren't criminalised in the same way, had a knock-on effect on all LGBTI people. I know the committee received written evidence from a woman who had been dismissed from the armed services because she was a lesbian. Although she hadn't committed an offence like men in the armed services, nevertheless people who were lesbian or gay or bisexual were routinely dismissed, whether men or women. It's the criminalisation of gay and bisexual men that underpinned that kind of discrimination. All of those effects were huge on the people affected and some of them are continuing. This bill cannot hope to make up for that discrimination and its effects. We have to do what we can do. Having said that, I would say that, as far as we are concerned, the bill is very welcome. It does two things. The first effect of it is declaratory. This is really important. The bill declares in three important ways. The first is section 1 of the bill says very clearly that these convictions were wrongful and discriminatory. It's really important to say that. The legislation of similar effect in the rest of the UK doesn't say that and has been criticised for not saying that. There is a concern that if you pardon somebody, that implies that they must have done something wrong. Section 1 makes up for that by making it clear alongside the First Minister's apology that people didn't do anything wrong. It was the law that was wrong. Secondly, the bill declares to people with these convictions that they have been pardoned. We can perhaps talk about that in more detail a bit later on. That pardon is formal and symbolic. It has no practical effect. However, it gives some comfort to the people who had those convictions that not only have they been declared to be wrong and discriminatory, but the person has formally been pardoned. I think that the declaratory effect of the bill is much wider than that as well because it declares quite clearly and publicly that Scotland now thinks that discrimination should end and wants to treat its LGBTI citizens equally with everybody else. The Scottish Government and Scottish Parliament are determined to take the steps that are possible to make that equality a reality. All of that is about the declaratory effect. The bill also has a practical effect. This is where the disregards come in. If you are going to pardon people, then you have to also make that pardon as far as you can concrete. That is what the disregard does. We can talk about why it is done on the basis of application rather than being automatic. That is an important point. However, the disregard itself is very welcome and its effect is quite wide in that it declares that the conviction cannot be used in any way to disadvantage somebody because it 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 also the practical effects. We hope very much that the committee will support it and the Parliament as a whole will support it. It does have very wide support in the country as a whole. A great opening statement that gives us a number of questions that we can go into. You mentioned in your opening statement that section 1 of the bill declares wrongful and discriminatory law. Can you tell us any other difference between the bill before us and the English Act and can you maybe tell us what lessons we could learn from the process of the English Act to allow us to deliberate further? Yes, when the English legislation was introduced, it was very much welcome. 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 whole of the rest of the UK as well as extending the disregards to Northern Ireland. The legislation has been criticised though. In fact, last year, talking about history again, was the 50th anniversary of the 1967 act in England and Wales that decriminalised sex between men in certain circumstances. There were a series of television programmes in which men who had these convictions were interviewed and a number of them criticised the legislation that was introduced for the rest of the UK. Making altogether three points, one was the point that, well, I'm uncomfortable about being told that I'm pardoned because doesn't that imply that I did something wrong and I'm now generously being given a pardon? That's what a pardon normally means. That's why it was so important to us to say that it must be made clear that men in this situation did nothing wrong. Section 1 of the bill, I think, does that, especially when taken together with the First Minister's Apology, and it will be really important to continue making Section 1 and the Apology very public in order to allay this concern about what the pardon means. The second concern about the English legislation is that the pardon is only provided automatically to men who had died before the legislation came into effect, and it came into effect on 31 January last year for the rest of the UK, or for England and Wales. What that means is that if you were still alive on 31 January last year, you were not pardoned automatically. Even though the pardon is only formal and symbolic, to get the pardon, you have to apply for the disregard. Now we estimate that only about 2% of the men who are still living, or the people who are still living in England and Wales with these convictions, have applied for the disregard. There are a number of reasons for that. Applying for the disregard is a bit complex. It's a three-page application form. You have to give all sorts of details about the original conviction. A lot of men don't want to do that. Perhaps they don't want to be reminded of what happened in the past. If you're not practically running into difficulties regarding the records of your conviction, then why apply for the disregard? As I say, 98% of people with these convictions south of the border have not applied for the disregard, therefore they have not received the pardon, even though it's only formal and symbolic. In fact, any man in this 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's died in the last 12 months without having applied successfully for the disregard in those 12 months or earlier will never receive the pardon. Any man who's still alive has to apply for the disregard to receive the pardon. Now we can see no good reason for that. Certainly our colleagues in, for example, Stonewall in London were very critical of this aspect of the bill. One of the men in this situation was interviewed on television last summer and said not only was he annoyed about the fact that he hadn't received the pardon, but also he'd 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. So while he was happy when he heard about the apology and thought he'd received an apology, when he looked at the wording he discovered that only men who'd received the pardon were receiving the apology, so therefore he hadn't been apologised to either. So I think that is a major flaw with the legislation for the rest of the UK and I'm very pleased that at a very early stage the Scottish government said that they would make sure that this legislation gave the pardon automatically to all men with these convictions. Both people who are still alive and people who are no longer alive. The third problem that has been identified by groups like 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. The legislation for the rest of the UK covers what are broadly certainly in Scots law called homosexual offences. In Scotland that's gross indecentcy and sodomy. In England it's called gross indecentcy and buggery. What's missing in particular from the English legislation is coverage of the offence called impotuning. So impotuning is where a man was prosecuted for chatting up another man. And in fact some of these men were entrapped so that there are men who've been interviewed on television last year describing this happening to them in London being at a gay bar chatting up a number of other men perhaps outside the bar. And then speaking to another man and beginning to chat him up and the man says I'm a police officer and you're nicked for impotuning. And men received fines typically for doing this and obviously a criminal record. Those offences are not covered by the legislation south of the border. This is very controversial and certainly the former MP John Nicholson, obviously a Scots MP who put forward a proposal for a private members bill in the House of Commons to do this job, drafted his bill to include these offences of impotuning. But unfortunately the UK government having initially said prior to the election last year that they would support his bill then decided when it came down to it that they wouldn't support the bill and instead supported some amendments to a bill of their own in the House of Lords which excluded this particular offence. Now under pressure the UK government did agree to amend their legislation to include an order making power to add other offences to the list of offences but that power has not yet been used so this is still a live issue for the rest of the UK. I'm very glad to say that against a background of this being quite controversial and public down south that the Scottish government thought about this quite carefully and have included these offences both explicitly in the list of offences in section 2 but also in the definition of sexual activity between men. So sexual activity between men is explicitly defined in section 2-4 to include the way it's written is conduct intended to introduce or procure such activity. That is there to make sure that the legislation covers cases where a man was prosecuted simply for chatting up another man. As I say the word that's usually used for this is impotuning. So those are the three main concerns that have been raised with the legislation for the rest of the UK and I'm glad to say that the Scottish government has listened to those concerns and has I think corrected them effectively in this bill. Thanks very much Tim. We've got Stormwall UK coming up to see us next week at committee as well so we'll interrogate some of that differences further as well. Thank you so much. I'm going to move on to committee members and Mary Fee, your first up Mary. Thank you and good morning Tim and thanks very much for that very helpful, omnen statement. There's a couple of things I wanted to ask you about. The first one is for individuals who apply for a disregard what support do you think they and their families will need because it won't just affect the individuals that will affect their wider family. I don't know if the disregard process will be the same here as it is in England but you said it's a three page application in England. There may be some individuals that will need help so do you think something should be put in place to ensure that there's support there for individuals and their families? Yes very much so. I think the first issue is one of publicity. It's going to be really important to publicise the provisions of this bill when it becomes an act to ensure that the maximum number of people in this circumstance know about it. Obviously the majority of them are going to be in their 50s and older. They are not necessarily linked in with networks like our own so the more publicity the better. We mentioned in our written evidence that we think it's really important that support is provided by the Scottish Government. The disregards are going to be effectively implemented by the Scottish Government. You apply to the Scottish Government so they'll be in office somewhere within the Scottish Government with staff whose job it is to deal with them. It's going to be really important that it is as accessible as possible and that support is provided for example like communication support to people who need it and support to fill in the form and advice about exactly what the form is asking about. The Law Society of Scotland in their written evidence suggests that it would be good if legal aid was available for advice that somebody might need from a lawyer to make that application and I would certainly agree with that. You're quite right, it's important that all those forms of support and advice are available to people to make disregard applications. The cost of this is not going to be great because the number of disregard applications is going to be very small. In regard to legal aid, do you think that regardless of someone's circumstances they should automatically be given legal aid to progress at disregard? I'm not an expert on the way legal aid works so with regard to the element of means testing I wouldn't like to say now that there should be no means testing if there is for legal aid for other purposes. One of the Scottish Government documents that accompanies the bill says that legal aid would be available for the appeal if somebody needs to make an appeal to the sheriff court but I agree with the Law Society that it would be helpful if legal aid was available for those that needed at least for legal advice in terms of making the initial application. I agree that obviously the Scottish Government will be processing this regard so there will be someone there to give support to help to fill in the form but there may be individuals and family members who need emotional support. Do you think that there should be some provision in the bill to ensure that, whether it's third sector organisations are given the necessary funding to provide that emotional support? That's a very good point. I'm not sure whether it needs to be in the bill. The main organisation that provides front-line support to older LGBT people in Scotland is LGBT health and wellbeing, they have a helpline and they provide direct support to people. I'm sure that they would want to make their helpline and other support available. They run a couple of groups for older LGBT people. I'm sure that they would want to extend that support to people in this situation and to their families. I wouldn't really want to speak on their behalf in terms of whether they feel that the resources they have to run that helpline and to give that support are sufficient. I'm sure that they would always welcome more resources. As I said, the numbers are small but I think that it's important that that help is available to the people who need it. The other issue that I wanted to ask you about was attitudes towards people within the LGBT community. It is very depressing to see the recent reports and the stuff that's come out from Stonewall, the level of discrimination that people from the LGBT community still face. I'd be interested in your view on what impact this bill will have on that. Do you think that this bill will make that worse or it will make it better? I think that it will make it better. I wouldn't say that it's going to make a huge difference but I do think that every step that the Government and this Parliament have made over the past 18 years, 19 years almost, has helped, I think, to move forward public attitudes towards LGBT people. We see in the Scottish social attitudes survey and the British social attitudes survey before that that there's been a steady improvement in attitudes since the low point of the late 1980s but that improvement has particularly accelerated in Scotland since 2000. I'm absolutely sure that that is in part as 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, all of the other steps that have been taken up to and including equal marriage. I'm quite sure that this legislation and the publicity around it as well will be another factor that moves us in the right direction. A lot of changing public attitudes is around leadership and demonstration of the fact that discrimination is now considered to be unacceptable. That's what this bill says. This bill says that discrimination is unacceptable now. Just final, when you talk about publicity, you said in your answer to the question that the convener put to you that section 1 in the apology should continue to be made public. How would you like to see that being done? Obviously there are various things that the Government can do, for example around the press work that it will do when the bill becomes an act. It will be really important for the Government to publicise the system through their websites and so on. We will obviously do and I'm sure our colleagues in other LGBTI organisations will publicise it as widely as we can. I think that the message from the Government that this is being done because the convictions are wrongful and discriminatory needs to be repeated at every possible opportunity through Government press and media work at the stages of this bill as it goes through. I want to ask you about the small number of respondents that have said that they would prefer the disregard, like the pardon, to be automatic. We know for legal reasons and crimes that will still be crimes that were crimes then. That wouldn't be possible. We also heard last week about the difficulties that are going through everyone's records to find out. Some were committed under breach of the peace and different difficulties that that raises. Do you also think that maybe there are men that want that aspect of their past kept in the past and they don't want it brought up again? Can you maybe comment on those two things? Yes. First of all, in the survey that we conducted, which was a survey of all LGBT people generally, about what we knew was going to be in the bill in early autumn last year, so we didn't know everything about the bill at that stage. It was 45 people out of 630 who commented on the bill said that they made the point that the disregard should be automatic. Out of all of those 630 people, I should say, only four said that they had convictions that they thought the bill should cover. Of those four, only two said that they thought it was likely that they would apply for the disregard. 4 out of 630 is rather less than 1 per cent. I think that's not surprising because, as we've said elsewhere in our 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. That's less than 1 per cent of the number of gay and bisexual men in Scotland. It's not surprising that the number who contacted us, who have these convictions, was so small. Of those four, two raised the point of the disregard being automatic, if possible. It's certainly an issue of importance to people. As we said in our written evidence, we've thought about this very hard. It's something that we've been talking to the Scottish Government about since 2014. We can't see any way that the disregard can be made automatic. It would be a huge task costing millions and millions of pounds and, in fact, taking many, many years to do. I don't think that it would be 100 per cent successful anyway to identify all of the convictions. As you said, there will be men who simply want to put all of this behind them. They've done their best to put it behind them for decades and they want to keep it in the past. It's not necessarily the case that everybody would welcome being contacted proactively by the Government to be told that their conviction had now been disregarded. Taking into account all of that, we think that the bill does get it right in terms of having to apply for the disregard. In fact, looking at what's happening in other countries, Germany, for example, has been introducing legislation on these lines. Again, they do it via an application system. It's not in place yet, but the bill specifies that it will be via an application system. In fact, they require an application even for the pardon. It's very welcome that the pardon is automatic, as I've already said. The system in England and Wales for the disregard 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 haven't had negative feedback, and I'm sure some of the UK will talk to you about this as well, about the way the system works. We also had a bit about the way that having this conviction on your PVG disclosure has affected people now that want to work with what we would class as vulnerable groups. Do you think that there should be something on the face of the bill that automatically just wipes everything from PVG disclosures? The way that I interpret the bill is that it does do that. It's not exactly spelled out, but it specifies that if you successfully apply for the disregard, then your conviction is disregarded for all purposes. You are treated for all purposes, as if your conviction never happened. Now, making that real is about updating the conviction records wherever they're held, and the details are going to be in regulations. I think this is an issue for the detail of those regulations, which will be introduced under the negative procedure, so it's going to be really important that the Scottish Government consults on them before introducing them and gets them right. The regulations can, under the bill, cover any kinds of records held anywhere, and the regulations specify how those records are to be updated. Certainly, the records on which disclosures are based, which are Police Scotland records, the Government has already been very explicit that those will be covered by the removal process once you get a disregard. The regulations will cover those. In terms of records that might already have been generated from the police records and, therefore, there might be a danger that they would continue to show up in disclosure and PVG checks, that's going to be something that needs to be considered under the regulation procedure to make sure that all of those are caught by the regulations. However, there is a general provision in the bill that says that you are to be treated as if the conviction had never happened, so you would always have the right, if something went wrong, to say, well, hang on, this is wrong, I must in law be treated as if the conviction had never happened, so you need to put this right. Tim, would you be able to expand on what those records are and where else they might be kept? There will be records relating to the conviction, certainly at Police Scotland in the Procurator Fiscal Service, because they would have dealt with the original prosecution and in the Scottish Court Service. My understanding is that when you apply for a disclosure, it is Police Scotland to process it and they would rely on their own records. The Government says in one of their accompanying documents to the bill that the police records in Scotland would be held on something called the criminal history system, but for reasons that they don't really explain, I'm not quite sure what they are, they say that some of the records may also be held on the UK police national computer system or rather the English police national computer system, and they do acknowledge that therefore they may need to be a process put in place to deal with those records as well. I do not know where other records might be held apart from those three places, but basically it's clear that the regulations need to be wide enough that they cover anywhere that records might be drawn in to that disclosure process. Of course the regulation making power continues, so if in the future somebody applies for the disregard and for some reason records don't disappear in the way they're supposed to, then the regulations can always be updated to put that right. The disregard will remove information from official records, but not historic records. What's your view on that? Yes, the word remove should be in quotes. The disregard system is based very very closely on the system for England and Wales, the legislation is almost identical. England and Wales use the word delete in their legislation, again that should be in quotes, because as I think it's section 10, 3 or 4 of the bill says, the definition of remove in the regulations that specify how it's to be done can mean annotating the records to make it absolutely clear that the information is not to be revealed. And the reason for that, as I understand it, well there are two reasons given by the government, one of them is that some of the records may be in a form that can't be simply deleted. For example there are microfiche and you therefore can't delete that particular entry. But the other reason, which I think is a valid one, is that you don't want to completely delete all of the historical records. We don't want to be in a situation where future historians can't look back at records and write a book about the level of discrimination there was against men who had sexual relations with other men. And they should be able to look potentially at individual cases so that in their book they can describe individual examples. But that information needs to be available to historians to be able to do that without causing any detriment to the men in this situation who are still alive. So it's going to be important to get that balance right. And again I think the regulations are key here because when the records are annotated and the rules are introduced about what that annotation says should happen to the records, we need to be absolutely clear that the record, although it will still be there, cannot be used in any way that causes detriment to the person who is still alive but will still be available for future historians. Now the bill actually excludes records held at national records of Scotland, that's in section 16. I'm not sure that that exclusion in the bill strictly needs to be there given that the removal process will be set out in regulations. I think that that could probably have been included in the regulations. I don't necessarily have a concern that national records of Scotland records are excluded so long as the records at NRS are of a form that cannot be accessed by say a journalist or a member of the public now to find out that one of these convictions happened for our living person. So that's an important point I think that the Scottish Government is going to need to address so that we can all have confidence that the removal process, including the way that records at national records of Scotland are kept and accessible ensures that people who are alive with these convictions can't in future, once if they have the disregard, be subject to any detriment. That's a really helpful explanation because my initial view was that if a conviction is to be disregarded it should be removed from every record but if you look at it from the angle of rewriting history and I accept your point that's very helpful. I should probably start from the outset of declaring an interest as the founder and co-covener of the cross-party group on LGBTI issues of which the quality network is the secretariat and Tim is obviously the director of that organisation. If the convener would indulge me to place on record my public thanks to Tim and the quality network for their support in the cross-party group over the last 18 months specifically in updating us on the progress of this specific bill. I have a couple of quite diverse questions. Perhaps those should have been addressed to the bill team but I appreciate that Tim's got a lot of knowledge on the subject. Is it your understanding that the Scottish bill will retrospectively pardon all men who were convicted of age of consent convictions in Scotland? So long as what they were convicted of is no longer an offence so obviously prior to 1980 there was no age of consent. Sex between men was a crime in all circumstances. Between 1980 and 1994 the age of consent was 21 and between 94 and 2001 it was 18 when for everybody else including women who had sex with women it was 16. So if you were convicted of an age of consent offence with a person over 16 then generally speaking yes you will receive the pardon. The exception is that if you are convicted of an offence with a person who is aged 16 or 17 and you are in a position of trust then you will not be pardoned because that remains a crime. So the general age of consent now is 16 for everybody regardless of gender mix but it's 18 if the person who is being charged is in a position of trust over in some sense the other person. Thank you for that response and that is a very pertinent point to people like myself who were around during that period of which there was basically it was illegal even for myself at that time so there is a small group of people who fall into that anomaly so I appreciate that answer. On another you touched on your opening statement around some submissions we've had from serving or ex-serving members of from Agis forces. I wondered if you had any understanding as to whether given that those convictions if you like or disciplinary measures are pertaining to the forces, whether those individuals would be covered under the England and Wales Act or would be able to take advantage of the Scottish Bill, whether or not their residents in Scotland presumably the convictions were not registered in Scottish courts in that respect and your understanding of how that would affect their ability to ensure that any decorations of discharge or court marshalling for example would not be required on current applications. Yes, this is a slightly complex point. First of all it was a crime for a man in the armed forces to engage in sexual activity with another man and that would normally be prosecuted I think in a court marshal under the armed forces legislation. The armed forces legislation extends to the whole of the UK but it's based on English law so for example you would have been prosecuted for buggery not for sodomy because it's the English law that underpins the armed forces legislation. Pardons and disregards for those convictions are covered by the legislation that's already been passed at Westminster so that means that even if it happened in Scotland this is the case so if you are as I understand it if you are convicted of sexual activity with another man say on an armed forces base in Scotland under the armed forces legislation then you receive your pardon and your disregard on application under the legislation for the rest of the UK. Once you've received the disregard you should then according to the legislation for the rest of the UK be treated as if the conviction had never happened. That means that if you were dismissed from the armed services which was standard practice purely as a result of the conviction then you should not suffer any detriment in any circumstances because of that dismissal and that would include in applications for jobs now. Unfortunately the situation is a bit more complicated because in practice men who were dismissed from the armed forces it could be argued that they were dismissed not just on the basis of such a conviction but because they said they were gay. In fact many many men were dismissed from the armed forces because they said they were gay who didn't have such convictions and even where a man did have such a conviction if he also said in interview at the time that he was gay then it might be argued that he was dismissed at the time that he was gay. So setting aside the conviction would not set aside in any sense the dismissal. Plus 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 weren't subject to court martial because it wasn't a criminal offence. So she was dismissed because she was interviewed in what sounds like a horrendous way and that wasn't unusual and she said that she was a lesbian and then she was automatically dismissed and that is affecting her now because you are asked in applications for certain posts and she mentions security or security vetting at least involved in posts here at the Scottish Parliament. You are asked if you have been a member of the armed forces and if you were dismissed so then the whole story comes out. This bill will not help with that so it will not help directly where somebody has been dismissed from the armed forces because of their sexual orientation neither does the legislation that applies to court marshals that was passed at Westminster. So other steps need to be taken there. The first thing to say is that in theory at least my view is that if you apply for a job somewhere and they ask were you dismissed from the armed forces and you say yes and they ask for the circumstances if they treat you less favourably because you say I was dismissed from the armed forces in 1991 because I said I was a lesbian. If your prospective employer treats you less favourably because of that so it doesn't give you the job for example I think that they are probably breaching the equality act because they are discriminating against you. It may be on grounds of dismissal from the armed forces but I think that's indirect discrimination because you were dismissed because you were a lesbian if it's not direct discrimination I think is indirect discrimination certainly. So I think that no employer should be discriminating against somebody because of this record because of the equality act. But I think that there are practical steps that can be taken by employers including the Scottish Parliament to put this right. And the person who submitted written evidence suggested that for example the Scottish Parliament rather than asking whether you've been dismissed from the armed forces could specifically annotate that question with something that says if you were dismissed on the basis of your sexual orientation you don't have to answer this question. So this legislation doesn't deal with it. It's a reserved issue so it's not something that the Scottish Parliament can deal with. The rest of the UK legislation at Westminster that gives pardons and disriars doesn't deal with it directly and probably doesn't help very much and certainly doesn't help women in this circumstance. But as I say I think it's already the case that the equality act applies and should protect you from discrimination because of this history. Thank you Tim, that's a very comprehensive and helpful answer. I think it's on my part flagged up a group of people who will not benefit in any sense from either the England and Wales legislation or the Scottish legislation. And again declaring an interest to have a number of friends who this affected very closely and very dearly still to this day. Do you think that there's any opportunity though, I appreciate what you're saying around guidance to employers etc but that's obviously not statutory in any manner. Is there any room for manoeuvre either in a devolved or reserved setting that there could be further enhancements to legislation this or otherwise to make it easier for those who were dismissed in the arms forces for being gay to in effect wipe their slate clean too because it seems like a missed opportunity perhaps? I mean certainly I think that's a possibility. I think it would be a reserved matter but it would be potentially possible to pass legislation at Westminster which would direct the armed forces to amend their records to annotate their records to issue letters to people who were dismissed on this basis to make it clear that to apologise basically and make it clear that they would not be dismissed now that the policy has changed something that they could show. That legislation could make it clear that people shouldn't suffer any detriment on this basis. Another practical step that could be taken is, and of course this is always a big hurdle for people to get over, but of course if somebody came to us who said that they had run into practical difficulties because they had been dismissed from the armed forces say in the 1990s on this basis and it was affecting their prospects to find jobs, then we would say a possible way forward is to consider taking it. That's a big, big hurdle for people to get over. Thank you very much and just one final question if I may, I'll keep it brief. It's on a very separate issue. My understanding is that the disregard process can only be done by the individual who was convicted. I do have a concern or a query that for those who are already deceased there's no opportunity for living relatives, family members, partners etc to apply for the disregard on behalf of the deceased person. I wonder if that means that those records, whilst those people will have been pardoned in the grand scheme of things, those records will still exist and those convictions will still exist which may affect their future posterity. Is that something that should have been addressed in either of the bills or is that something that you think is practically impossible to implement at a slight stage? I think in all cases the convictions still exist so the bill doesn't erase the convictions from history. What the disregard does is it says that for all practical purposes the convictions are to be treated as never having happened. I think it's a very important question. I think whether the practical recompense that the bill provides potentially to anybody who has received the automatic symbolic pardon, whether that should be extended to people who are no longer living, depends on whether you think that practically it would have an effect on people who are no longer living. Given that the purpose, the stated purpose of the disregard is primarily at least to deal with the issue of disclosures and certainly the people who have contacted us and there are only three in total who have contacted us to say that they want to apply for the disregard and only two of those have given us details, it's clear that the reason they want the disregard is exactly because of the disclosure problem. Clearly that in itself is not a problem for people who are no longer living. So I think the answer to the question depends on exactly what practical recompense the bill is giving to people who apply. In Germany the legislation is rather different. You have to apply and you get two things at least through applying if your application is successful. One is you get a certificate of pardon stroke disregard and the other is that you get financial compensation and Germany is the only country in the world so far as I know that is offering to provide people with financial compensation. Applications there are open to families of people who are no longer living who had these convictions. My understanding is that they won't necessarily personally receive the financial compensation in that case but they will receive the certificate. Obviously the question of financial compensation is a different one but I think what that illustrates is whether it makes sense to open the practical recompense that has to be done by application to relatives of those who are no longer living depends on what that practical recompense does and what its purpose is. If the purpose is focused on disclosures and is focused on the person not suffering detriment for example when they apply for a job and those things are all covered in this legislation then it may not be necessary to open it to families of people who are no longer living. I think that it is probably not necessary but if it were to be extended to go further for example to provide some kind of certification as in Germany then 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. It is just to take you back to the armed forces section of your response that you gave us. I was wondering if it had that impact on someone if it is on the records as a dishonourable discharge or dismissed from the armed forces. The effect that that has on pension rights, your honours and your medals, your ability to wear your uniform and maybe some disability to participate in veterans organisations. If you come across anything where that has been the issue? I am afraid that I do not know the answer to that. I do not know what the effects are on those things. I will add just one more point related to this. You mentioned dishonourable discharge which is what is called I think of the United States. 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, in fact, she received this before it came to court. That is the kind of practical step that I think the armed forces could take in this country but, as I say, I think that that is a reserved matter. That is a very 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 there are some individuals who have taken their own lives because of the conviction. Do you think that family members applying for a disregard should be different in those circumstances? I think again it would depend on exactly what the disregard provides. If the disregard is focused on issues like disclosure and not suffering detriment and applying for jobs then I can't see that it would make very much different. Obviously we don't know of any cases where this has happened but I think it's very likely that it did happen and that's obviously a dreadful situation for the families in those circumstances. Given what the bill does provide through the disregard at the moment I think my answer would probably be no, I can't see a direct reason why people should be treated differently. I have to say that I've hung on your every word. This has been a fascinating evidence session and I could listen to you all afternoon. I'd like to explore a couple of issues. Firstly, around the financial compensation I wasn't aware that Germany provided that to what sort of magnitude is that compensation issued. I ask that because we understand from briefings prior to this meeting that we aren't talking about a huge number of men here. If anything is to go by in terms of the English experience we're probably talking 50 to 100 men tops in Scotland which to my mind wouldn't break the bank in terms of offering Scottish Government funded compensation. First what is the sort of level of compensation in Germany and would that be welcome in Scotland? First of all the legislation in Germany, as I understand it, is not yet in effect. It was passed by the Bundestag which is the lower house last June. It was a government bill. I don't know what's happened in the upper house although certainly the upper house had indicated they would pass it but of course there were elections in the autumn in Germany and that may have held the process up. 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. So in answer to your question the level of compensation is a flat rate of 3,000 euros to everybody who successfully applies who has one of these convictions taking into account that it doesn't cover convictions for things that are still crimes. And then 1,500 euros on top for every year spent in prison. Now looking at the sentencing of these offences in Germany it's clear that it was harsher than here and in fact the average sentence apparently if people convicted under paragraph 175 which was their equivalent of what we call the homosexual offences was two years in prison whereas the average here even in the 1950s was months in prison. So the German government has apparently set aside 30 million euros which is an average of 6,000 euros per person that's on the basis of 3,000 euros flat fee plus an average of two years in prison is another 3,000 euros for each of 5,000 people who they expect to may successfully apply through this process. That's a model we should adopt here in Scotland. The first thing to say is that of the four men who responded to our survey where we invited people to say what in addition they felt was needed on top of what the bill was already offering last autumn none of them raised the question of compensation. I think eight people in total out of the 736 people who responded to the survey did suggest compensation but none of those eight included the four men who had convictions. They raised other issues but not the issue of compensation. So we base our policy on what we hope is a consensus amongst LGBTI people. We do a lot of consultation which is why we do these surveys. So the reason we haven't proactively been calling for compensation is in part that the large majority of people didn't raise it as an issue. Having said that, I don't want to speak on behalf of the, as you say, it might be a total of one to 200 men living with these convictions. Really it's up to them and I hope the committee will have the opportunity to speak to or at least take evidence from some men in this situation. That's really interesting. I'm really struck by the fact that there's probably just an element of human decency in this that a lot of these men who have corresponded with you on this issue didn't think about money because they just want justice to be done for them. But actually compensation might still be the right thing to do and they just don't want, you know, they've not thought about money and don't want to be seen as just looking for an easy pay out. But it's the right thing to do because it also strikes me that notwithstanding the time spent in prison and great to hear that Germany are recognising that financially there's very significant impact on careers as well as a result of this and lost earnings and lost promotion and lost many, many things. Some of which might be quite easy for individuals to evidence with some legal support. And I just wonder if we should, as a committee, actively consider this because I think that the community represent, the men that have come forward already to talk to you about it aren't necessarily looking for this, but it might still be the right thing to do. How do you feel about that? I think one very important point is that whatever the level of compensation, it's actually compensation in quotes because it is not going to make up for the damage. I agree that there will be men who can probably point to the effect on their careers and may very well be able to quantify that. And it's likely to be tens of thousands of pounds or more in terms of lost earnings. The amount in Germany, 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. Obviously 1,500 euros 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. So I think any practical level of compensation, and even in Germany, which is the only country that has so far moved to introduce this, is going to be symbolic. But then concrete symbols are important, and as I say, it is really the voices of those who are in this situation that need to be heard. One final point. We estimate that the number of men still living with these convictions is in the small number of hundreds by which it could be as low as 1 to 200. The Government estimate that they might approve 15 applications for disregard in the first five years. That's one-tenth of the number in England and Wales. That means that most people will not be applying for the disregard, and so I think there is a question there about giving compensation only to those who apply for the disregard. And if somebody is not applying for the disregard for a number of reasons, for example, because they emotionally, for example, really don't want to handle that hassle and to reopen the whole question, they're not going to get the compensation because there's no way of compensating them. So there is a question of fairness there that needs to be thought about. It's an interesting proposition. I think also it might actually generate more interest in application for the disregard as well, but yeah, I think that's something for this committee to consider. I have one final question if I may convene, and that's whether there's a potential wrinkle around this for those men who are convicted of a crime that's no longer illegal in other jurisdictions, so overseas in other countries. And whilst it would be impossible to have annotation or removal or redaction from criminal records that are held overseas, we can still disregard it for the purposes of the way we're doing for everybody else here, but is this something you've considered and how might we reflect that in the regulations underpinning the bill? No, we haven't considered that to be honest. It's a very interesting question. I don't know whether, when you apply for an enhanced disclosure, the police don't just include conviction records, they can also include any other material that they think is germane to the application. Whether in practice convictions in other countries ever get reflected through enhanced disclosures, I don't know. Potentially they might if the police are aware of them, so I certainly agree there's potential to address that. I think that there's another way of addressing it, which is that when it comes to applying for jobs and so on, then I think again the provisions of the Equality Act would apply, and if you were disadvantaged because of conviction in another country for something that is no longer a crime there and wouldn't be a crime here, but essentially is based on your sexual orientation, then potentially that would be unlawful under the Equality Act. In that case, applying for a job and they ask you criminal records, disclose any information here, people just out of honesty might feel obliged to put an offence they picked up in France in the 1960s or something and not know that they didn't have to and perhaps we need to reflect that in guidance and the publicity around the passing of this act, would you agree? Yes, I mean it's unlawful for a prospective employer to ask people about convictions that are spent, except in the context of enhanced disclosures which are only lawful to apply for for certain jobs, and it's good practice on job application forms to specifically say, have you any past convictions, do not mention any convictions that are spent. Those rules only apply to convictions within the UK, but when you make that statement then at least it's a pointer that old convictions in another country don't need to be mentioned. Any other questions from our panel members? Any final comments, Tim? Have we missed anything? We've covered quite a wide range of material. I'll just check whether there was... I've mentioned the situation in Germany, perhaps it's also worth mentioning there are a number of other countries that are currently putting through legislation along these lines including Canada, New Zealand, at least one Australian state. So this is something that if we didn't do it, I think Scotland would be falling well behind, but I think it's something that shows alongside those kind of countries that Scotland is a country that is no longer willing to accept discrimination against LGBTI people. So as I say, I hope very much that the committee will support the bill. Good place to finish on our deliberations this morning, Tim. We're very grateful for you coming along this morning and we'll continue with our deliberations in the next few weeks, but thank you so much. If you go away and you think, oh, I've missed something, please let us know because we will still consider it up until the point where we run out of time. Yes, I'll certainly do that. Thank you very much. Thank you so much. I'm going to suspend committee to go into private and have a five minute comfort break.