 Good morning and welcome to this, the 15th meeting of the Equality and Human Rights Committee in 2018. I'm going to make the usual request that mobile devices are switched on to airplane mode and mobile phones are off the table. Before we kick off this morning, I have a statement to make. I'd like to make a brief statement about the committee's report on prisoner voting in Scotland, which was published at the beginning of this week. I would like to place on record my personal disappointment that the findings of the report were leaked to a national newspaper where it appeared on the front page on Friday, 11 May. For the avoidance of doubt, I would like to draw members' attentions to the following provisions of the code of conduct for MSPs. In the section under confidentiality rules at section 12, all drafts of committee reports and committee reports which, although agreed by a committee and no longer in draft have not yet been published, should be kept confidential unless the committee decides otherwise. In addition, the following should be treated as confidential, briefing provided to members by parliamentary staff or particular members' information only, documents produced during a private session of a committee, evidence submitted to a committee sitting in private from a witness which it has been agreed can be treated as confidential, any other documents or information which the committee has agreed should be treated as confidential and minutes of any private discussions. At section 13, unless the Parliament or the relevant committee has agreed otherwise, such documents should not be circulated, shown or transmitted in any other way to members of the public, including those in cross-party groups, media or to any member or any organisation outwith the Parliament, including the Scottish Government, not to other MSPs who are not members of the committee or the committees for whom the material was intended. At 14, members must not provide the media with off-the-record briefings on the general comments or line of draft committee reports or other confidential material or information. Disclosures of this kind can also seriously undermine and devalue the work of committees. At section 15, unless the Parliament or the relevant committee has agreed otherwise, members must not disclose any information to which a member has privileged access, for example, derived from a confidential document or details of discussions or votes taken in private session, either orally or in writing. At 16, where a committee member wishes to express dissent from a committee report, the member should only make this public once the committee report has been published in order to avoid disclosing the conclusions of a draft report. In light of the recent press reports, I would like to emphasise to all members the importance of complying with those rules and to ask that particular attention is paid to them in the future. Having been a member of the former Equal Opportunities Committee in a previous session, I know that there is a long-standing tradition of keeping politics to a minimum in our committee's work. Whenever possible, we try to put politics to one side and put those who are the most vulnerable in our society at the forefront, so that their voice is heard in the decision-making process. Over time, we have gained the trust of those who we have shared their life experience with us and they expect us to treat their information respectfully. A short-lived political stunt strikes at the heart of this hard-won reputation. As parliamentarians, we have standards to live up to, not just for those who govern our conduct, but importantly for the people of Scotland. It is my hope that the committee can move forward in a collegiate manner, although I recognise that it will take some time to build that trust again. Trust, which is fundamental to the effectiveness of this committee in helping the most marginalised in our society. That ends my statement this morning and I wish to move straight on to agenda item 1, which is stage 2 consideration of the historic sexual offences pardons in Disregard Scotland Bill. I would like to welcome Michael Matheson, MSP, the Cabinet Secretary for Justice, who is joining us today as a minister in charge of the bill. I would also like to welcome our colleague Stuart Stevenson, who is here to speak to amendment in his name. Our aim is to complete stage 2 consideration this morning. Before we move on to consideration of amendments, I would like to be helpful to set out the procedure for stage 2. Everyone should have with them a copy of the bill as introduced, the martial list of amendments that was published on Monday and the groupings of those amendments, which set out the amendments in the order in which they will be debated. There will be one debate on each group of amendments. I will call the member who lodged the first amendment in each group to speak to and move their amendment and to speak to all the other amendments in that group. Members who have not lodged amendments in the group but who wish to speak should indicate to me in the usual way. If the Cabinet Secretary has not already spoken on the group, I will then invite him to contribute to the debate just before I move to the winding-up speech. As with a debate in the chamber, the member who is winding up on a group may take intervention from other members if they wish. The debate on each group will be concluded by me inviting the member to move the first amendment in the group to wind up. Following debate on each group, I will check whether the member who has moved the first amendment in the group wishes to press their amendment to a vote or to withdraw it. If they wish to press ahead, I will put the question on that amendment. If the member wishes to withdraw their amendment after it has been moved, they must seek the committee's agreement to do so. If any committee member objects, the committee must immediately move to the vote on the amendment. If any member does not want to move their amendment, when I call it, they should say not to move it. Please remember that any other MSP may move such an amendment. If no one moves the amendment, I will immediately call the next amendment on the marshaled list. Only committee members are allowed to vote at stage 2. Voting in any decision is by a show of hands. It is important that members keep their hands clearly raised until the clerk has recorded the vote. The committee is required to indicate formally that it is considered and agreed each section of the schedule of the bill, so I will put that question at each appropriate point. Moving on to the marshaled list and the amendments this morning, amendment 6 in the name of Jamie Greene and a group of its own. Jamie, to move and speak to amendment 6, please. Thank you, convener, and good morning to the panel and to the cabinet secretary. I probably should still stay from the outset. My amendments today are intended to be helpful at all stages and I will look forward to feedback from other members and indeed the cabinet secretary on the specific wording of any of them at the stage. I will start with amendment 6, which is a short amendment with regard to section 2 and the definition of sexual activity between men. In my view, the current wording in subsection 4A, which states that any physical activity between males of any age, which is of a type of intimate personal relationship, left open the possibility of being quite loose in its interpretation in that intimate personal relationships between men who are over the age of 16 and those who are under, would not be covered by the pardon or disregard. Although I appreciate that offenses that are still offenses today are covered by the bill, my understanding of reading this particular wording, especially the words of any age, did not provide any clarification or left it open perhaps interpretation that it would be interpreted as acceptable that intimate relationships between men who are under and over the age of 16 would be potentially included in this. For that reason, I have added a single line in to say that providing that activity is not between a person who is at the age of 16 and one who is not, just for the point of strengthening the understanding of what sexual activity is or is not acceptable today. That is all. Before I move on to the open debate in the cabinet secretary, is the committee agreed? The question is, section 1, be agreed, are we all agreed? That was us moving on to section 2. Any other comments from committee colleagues? Cabinet secretary. Good morning, convener. I understand that amendment 6 is intended to ensure that a pardon or disregard is never granted to a person who engages in sexual activity with a child under the age of 16. I understand the member's concern and I would like to explain why the amendment is actually not necessary and may indeed have unintended consequences. Protection has already built into the bill to ensure that where a person is convicted for sexual activity that remains unlawful, that person is not pardoned and a disregard will not be granted. Section 3 of the bill makes clear that a person who has been convicted of a historical sexual offence is pardoned for the offence only if the conduct constituting the offence is not an offence when the act comes into force. Section 73B of the bill provides that a disregard is not to be granted if it appears to the Scottish ministers that the conduct constituting the historical sexual offence would still be an offence when the act comes into force. The amendment by applying a blanket exclusion for any offence where one person has attained age of 16 and the other has not, runs the risk of excluding cases where the activity in question is lawful and a pardon and disregard should apply. The definition of a historical sexual offence is necessarily very broad and covers activity that people might not necessarily think of as sexual. Committee members have heard evidence from a man who says that he was convicted of a breach of the peace for kissing his same-sex partner in a public place. The effect of this amendment would be to exclude, for example, a 16-year-old convicted of a breach of the peace for kissing or holding hands with his 15-year-old same-sex partner. That would not be a criminal offence now. I would never have been a criminal offence where it involved opposite-sex partners. Therefore, I would invite the member not to press amendment 6. Thank you. Jamie Greene to wind up and press or withdraw. Thank you, convener. I think that that example is a good illustration. I struggled to think of any practical applications of whether it would be acceptable if an offence had been committed with an under-16-year-old and over-16-year-old. The example that the cabinet secretary gives, for example, I would never want to inhibit someone's ability to apply for a partner or disregard in that respect. My hope was that this would not provide any loopholes in the legislation by the wording of any age. Given the example that the cabinet secretary has given, I have clarified my confusion over it. For that reason, I would be happy not to move that amendment. To withdraw the amendment. The committee agreed to withdraw. Thank you very much. Moving on to amendment 7. Also in the name of Jamie Greene, group with amendment 13. Jamie Greene, to move amendment 7 and speak to both amendments in the group. Thank you, convener. Amendment 7 is a short amendment that gives ministers the ability to add offences in the future to the definition of historic sexual offence. At the moment, historic sexual offences and the parameters around that are quite clearly detailed in section 2. As it stands, I think that there is broad agreement that that covers most bases. The purpose of this amendment, however, is to future-proof the legislation in respect that if in the perhaps unlikely event, but if in the event that our sexual offence law has changed in the future, that the ministers would have the ability to include other definitions in this legislation. This particular amendment leads into another amendment that we shall speak to later, amendments 10 and 11, around the ability to alter the purpose of the legislation. At the moment, I think that there is broad agreement as to what we consider the purpose of the bill with respect to historic offences. Our experience of other legislation, which has tried to achieve the same thing, we have since discovered that people have come forward with a number of unusual offences that they had been convicted of. As awareness of the legislation is out there in the community, we have found deficiencies in other pieces of similar legislation in that the definition was too narrow. The definition of this piece of legislation is good, but I do not think that it allows the opportunity for ministers in the future to alter the definition of a sexual offence, subject to perhaps further consultation or legal advice. The purpose of this is to not state that ministers must add further definitions, but it gives them the option to add historic sexual offence that is subject to appropriate regulation. That is the only reason that I have included this amendment. I will be keen to hear the cabinet secretary's views on it. Colleagues, not the cabinet secretary. Amendment 7 provides for our regulation making power to add new offences to the list of historical sexual offences at section 2 of the bill. It might be helpful to the committee if I reiterate that section 2 already provides for a catch-all provision, which provides that historical sexual offence includes any other offences that was regulated or was used in practice to regulate sexual activity between men and which has either been repealed or abolished or which once covered sexual activity between men of a type which or in circumstances which would not amount to an offence now. That provision is included in the bill because we recognise that, while efforts have been made to identify the offences that were used to prosecute same-sex sexual activity, which is now legal, we know that other common law of statutory offences such as Breach of the Peace or indeed local bylaws may have been used to prosecute such activity. That ensures that a person with a conviction of any offence which was used to prosecute same-sex sexual activity that is now legal is pardoned and can apply for a disregard without the need for a power to add new offences to the list at section 2 1. In that sense, the power would serve no useful legal purpose. It is unlikely that it would ever be used. Because it is not limited on its face to sexual activity used to prosecute same-sex sexual activity between men, it could be used to add sexual offences of any kind to the list at section 2. For instance, offences used to prosecute sexual activity between partners of opposite sex. Members will be aware that the bill is limited to deal with the discrimination against men involved in same-sex sexual activity, so we do not consider that it would be appropriate for the scope of the legislation to be fundamentally altered through secondary legislation in this way. On that basis, I would invite the member not to press his amendment. Jamie Greene, to wind up a press. I should have added that amendment 13 was a technical amendment linked to amendment 7. I did not do that previously. I hear what the cabinet secretary says. I guess I'm looking for reassurance that subsection 2 does enable in future the flexibility that I'm looking for that all types of offences, not just sexual offences. Of course, my intention was not to include other types of sexual offences that are outwith the remit of the bill. That was absolutely not the intention. If it's worded in that way, then I apologise. If, for example, people were convicted of a wide range of other behaviours which, in future, are deemed to be able to take advantage of the legislation, my hope is that, as it's currently drafted, these people will be able to come forward and take advantage of the legislation. The end of my amendment was simply to allow ministers in future to add certainty where perhaps there isn't at the moment if and when new cases come forward. I appreciate that the cabinet secretary says that this power may never be used, but it may be used. We don't know who is out there. We don't know who will come forward with very individual and specific circumstances. That really was the intention of the amendment to give ministers in future that flexibility. I'm hoping, as it's currently drafted, that it has that flexibility. I'll be minded not to move it for that reason, but perhaps it's something that I could chat to the cabinet secretary's bill team to clarify how some future circumstances may arise and how people could go about taking advantage of the scheme where it's not clear at the moment if they committed an offence or not. That would be very helpful. Given that Jamie Greene has asked for a point of clarification, do you want to come back? The first thing to say is that it's not clear to me what present legislation we have in place that would criminalise activity between same-sex partners that we would want to repeal at some point in the future, because that legislation has already been addressed. The second thing is that, if there were changes in some shape or fashion in the future, that bill deals with historical matters. Therefore, trying to make some sort of provision to do with something in the future wouldn't be within the terms of the bill in itself because it's dealing with historical matters. The other important point is that I can't think of any piece of legislation that we have in place that would continue to discriminate against same-sex partners in the way in which the bill is seeking to address the issues of historical legislation that discriminate against them and to provide the pardon and disregard for them. Jamie, do you wish to press a withdrawal? A withdrawal. A withdrawal. A withdrawal. A withdrawal. A withdrawal. A withdrawal. A withdrawal. A withdrawal. A withdrawal. A withdrawal. A withdrawal. A withdrawal. A withdrawal. A withdrawal. A withdrawal. A withdrawal. A withdrawal. A withdrawal. A withdrawal. A withdrawal. A withdrawal. A withdrawal. A withdrawal. A withdrawal. A withdrawal. A withdrawal. A withdrawal. A withdrawal. A withdrawal. A withdrawal. A withdrawal. A withdrawal. A withdrawal. A withdrawal. A withdrawal. A withdrawal. A withdrawal. A withdrawal. I would also like to put on record my thanks to the cabinet secretary for justice for his continued constructive dialogue, which I have greatly appreciated. Amendment 1 in my name would provide for a pardon letter for deceased persons. Today, as colleagues will know, is international day against homophobia, biphobia and transphobia a worldwide day of campaigning and celebration, so it's a particularly appropriate day to consider this bill. And after similar legislation to this bill came into effect south of the border last year, 94-year-old George Montague publicly criticised the legislation. He had been convicted for conceptual sex with another man in 1974. He said, I will not accept a pardon. To accept a pardon means you accept that you were guilty. I was not guilty of anything. He called for an apology to be provided instead. It is right to provide the pardon and the disregard, but the committee agreed in our stage 1 report that those are not enough. Front and centre of any responses to these convictions should be a declaration of the wrongfulness and discriminatory effect of the convictions, which is set out in section 1 of the bill, and also the First Minister's unreserved apology in the Scottish Parliament. Those make clear that the wrong was done to the convicted person, not by them. In our report, the committee asked the Scottish Government to consider how there would be a way of providing a letter of comfort to families of deceased people with those convictions. My amendment 1 is intended to explore that further. Amendment 1 proposes in subsection 1 that a close family member of a deceased person with a relative conviction would be able to apply to the Scottish ministers for a letter of comfort. Subsection 2 provides that an application could not be made if an application for a disregard for the same conviction has already been made by the deceased person and dealt with before they died. Subsection 3 provides that in the application for the letter, the family member would include as much information as they know about the conviction. The family member may not have detailed information on the conviction, also the deceased person's criminal records may have been deleted when they died. So it might well be that the full details of the conviction will not be available to Scottish ministers. I have therefore recognised in the amendment that the proposed letter of comfort cannot be an unconditional letter, saying that the deceased person has definitely been pardoned. It would need to be a conditional letter which says that the person has been pardoned if the conviction was for a historical sexual offence that is not a crime today. It would need to explain in general terms what that means. Subsection 4 provides that Scottish ministers would not supply the letter if it was clear from the information in the application that the pardon would not apply. Otherwise, they would provide the letter with no further checks being needed since the letter itself has to be conditional. An applicant would receive the letter unless it was already clear from the information that they provided in the application that the pardon did not apply. That would avoid the difficulty of an applicant finding out from Scottish ministers' reply that investigation of the records had cast doubt on the pardon applying. That would provide the opposite of comfort. Subsection 5 sets out the content of the letter. The letter would explain the application of the pardon. It would include a statement acknowledging the wrongfulness and discriminatory effect of convictions pardoned by the act. It would also include an apology for those convictions in similar terms to those used by the First Minister in her speech to the Parliament on 7 November last year. Subsection 5 also proposes that the letter be signed by the First Minister reflecting her statement to the Parliament. Finally, Subsection 6 lists the close family members who could apply for the letter. It is unlikely that there would be a large number of those applications made by relatives of deceased people, but it could be a great comfort to relatives to provide a letter, even though the letter cannot be unconditional. The extra load on the Scottish Government in providing those letters would be very small, and I appreciate that it might be possible to provide those letters administratively without needing provision directly in the bill. I hope that the Government will commit to doing what it can to make this possible, and I move the amendment in my name. I would like to start by echoing Mary's thanks to Tim Hopkins and the Equalities Network, not least for the work that they have done on the amendment, but also in helping us throughout the conduct of the entire bill process that has been very illuminating. I think that I intimated to the chamber in my remarks around stage 1 that the only deficiency that I saw to the otherwise excellent piece of legislation was that it did not, as drafted, extend not just comfort but justice to families of those deceased men who had been convicted for crimes that are now legal in the context of their sexuality. I think that it is fair to say that there is a human cost to the application of criminal justice in less enlightened times, which is measured out in tragedy, in the lives that were perhaps cut short by people taking their own lives as a result of the shame or embarrassment that was caused by the criminal record hanging as a millstone, as it did. To echo my support for Mary Fee's amendment here, I think that that will close that gap. It will be the final piece in the jigsaw in what is not just a historic piece of legislation for this Parliament, but a very important one as well. I would like to echo the comments made by my committee colleagues. I think that Mary Fee very eloquently stated the case. Alex Cole-Hamilton said that there was a missing piece of the jigsaw. I felt very strongly, too, that the ability for family members or partners, etc., of people who are now deceased, should be able to receive, other than just a blanket apology, some form of individualised and something quite personal to them. They would allow them to move on in some of the tragic circumstances that have been alluded to. Again, I think that there will be a small number of people who may choose to take advantage of this type of application, but nonetheless they should be offered the opportunity to. In whichever form it ends up, in terms of the concept, I very much support it. The more comments, cabinet secretary. In convener, amendment 1 seeks to put in place a statutory mechanism whereby relatives of a person who has died, who believed that person was convicted of an offence for engaging in same-sex sexual activity that is now lawful, can apply to receive a letter of comfort, which would provide a conditional pardon and disregard based on information provided by the deceased person's relatives. I can understand why committee members may consider that the relatives of a person who has died might wish to apply for a posthumous disregard so as to confirm that their relative has been pardoned. As I explained during the stage 1 debate, there are a number of potential problems with that. The primary difficulty is that, where a person has died, it is likely that the information that is held about them on the criminal history system may have been removed, and there may be little or no information available on which ministers can make a decision about whether the disregard should be granted. A second issue may arise in cases in which family members were unaware of the actual circumstances in which their relative was convicted of an offence and could, as a result, receive unwelcome news that the relative was in fact convicted of a serious sexual offence. I am, however, sympathetic to the intention behind this amendment, and I can confirm that a Scottish Government is content to put in place such a scheme. It is, however, not clear to me that the scheme requires to be placed in statute and, indeed, I believe that it would be more appropriate in the circumstances to have flexibility that would be provided by a purely administrative scheme rather than one based in statute. Therefore, I hope that this reassures members that the administrative scheme to enable relatives of a deceased person to receive a letter of comfort of the kind envisaged by this amendment will be put in place. I can also confirm that the letters will be signed by the First Minister, and I would therefore invite the member not to press her amendment. Mary Fee to wind up. Thank you, convener. I thank the cabinet secretary for his very constructive and supportive comments. I fully understand the concerns that the cabinet secretary raised around the legal difficulties that could potentially arise. I welcome his commitment to provide a letter of comfort to family members. On the basis of those comments, I will withdraw my amendment. I call amendment 2, in the name of Stuart Stevenson, group with amendments 8, 3, 3A and 14. Stuart Stevenson will ask you to move amendment 2 and speak to all of the amendments in the group. Thank you very much, convener, and I start by moving amendment 2, in my name. My amendment, which I trust committee members will feel as simple, straightforward and with no side effects beyond its central purpose, follows my comments during the stage 1 debate on certain aspects of the bill's drafting. Briefly, section 5, 2 of the bill sets out the information that a person applying for a disregard must provide in their application. Section 5, 2B of the bill requires the applicant to state their name and address at the time of conviction. However, as I said in debate, given the passage of time and the social circumstances under which many of the people who might seek such a disregard, it may well be possible that some applicants are not able to state with the required certainty what their address was at the time that they were convicted. Perhaps less likely, I have also realised, after further consideration, that it is also possible that an applicant may have changed their name and may not be entirely sure whether the conviction occurred before or after the time that they changed their name. There could be cases where an applicant cannot say with the required certainty what their name was at the time that they were convicted. The amendment to amend section 5, 2B of the bill to provide then an applicant must state their name and address at the time of conviction, but would now be qualified with in so far as it is known to the applicant. That brings the requirement into line with sections 5, 2C and 5, 2D regarding associated information that the applicant is asked to provide about the offence and conviction. I do not intend convener to speak on other amendments in the group. I encourage committee members, as I am sure they always would, to give due weight to their moover's comments and to the cabinet secretary's response. Thank you very much. Jamie Greene to speak to amendment 8 and other amendments in the group. Jamie Greene Thank you, convener. I have no comments on Mr Stevenson's amendment. He has always come to committee with sage words. I will speak to my amendments. I will start with amendment 8. I can explain the premise of it if it is not entirely clear in the wording or if it is not entirely efficient in what it is trying to achieve. My aim is to ensure that a wide number of people can take advantage of this. Given the nature of the demographic of the types of people who may wish to apply for a disregard, it is important to allow provision that would give people the opportunity to receive assistance and help on their application and, indeed, for someone to make the application with their consent on their behalf. The wording that I have used is on behalf of a person who has been convicted. I appreciate, as it is currently worded—I am willing to discuss this—that, if that means, as it is currently worded, that anyone could apply for anyone else without their consent, then that is not the purpose of the amendment. I am of the view that, for example, people may and should be able to take advantage of third-party organisations, some of the excellent organisations that we have heard from, given evidence such as the equality network, Stonewall, other charities, advocacy groups or even simple family members or partners or spouses, or people who are either perhaps physically incapable or perhaps, due to other reasons, are mentally, for example, and need some assistance with the application. The purpose of this amendment is really to help to make provision that the Government would accept an application from a third party with due consent, as deemed appropriate. If the wording stands does not meet that requirement, I would ask that the Cabinet Secretary would give thought to the process. As it is currently worded, my understanding is that the bill would only accept an application from the first person, not from any other. I would like to think that a third-party application could be a possibility, and that is the purpose of my amendment. On the other amendments, amendment 3A, I became to hear what Mary Phee has to say on amendment 3. It is perhaps of the same ilk, but a little bit shorter. I would be minded to perhaps not move amendment 3A if Mary moves amendment 3. My definition of a certificate is perhaps prescriptive, whether it is a certificate or a letter. I was always of the view throughout this process that there should be something symbolic given to people who have been successful in their application, whether it is a letter or a certificate, as I think for debate. However, the purpose of 3A was to ensure that they get something. I hear the comments that were made in the previous section around people applying for deceased members, and I would like to think that that opportunity would be extended to people who are living who have a successful application. That is something that I will listen further to. Amendment 14 is a technical amendment that relates to amendment 8, so I will not speak too much on that. Thank you, convener. Amendment 3 discusses the contents of the Disregard notice, and, as I said when we considered amendment 1, it is crucial that any response to a conviction, which is pardoned under the bill, acknowledges that the wrongfulness of the condition and provides an apology. Amendment 3 explores the content of the notice that is issued to an applicant when a disregard is granted. The amendment proposes that the notice must include a clear statement that the applicant has been pardoned. It would also state that the wrongfulness and discriminatory effect of their conviction is acknowledged by the act. It would also include an apology to the applicant in similar terms to those used by the First Minister in her statement in the chamber on 7 November last year and would be signed by her. Including that content in the notice of disregard that is sent to the applicant would help to address the criticism that providing a pardon could be seen as confirming that the applicant did something wrong. It is right that the notice should include a clear apology and an acknowledgement that the wrong was done to the applicant, not by them. Jamie Greene's amendment 3A would provide that the notice of disregard should be in the form of a formal certificate, and that would also be useful. I recognise that it might be possible to implement those measures without needing explicit provision in the bill. However, I think that it is important that there is a clear commitment to provide that kind of response to people who are granted a disregard and I move the amendment in my name. I have a couple of brief reflections on Jamie Greene and Mary Fees amendments 8 and 3 respectively. In respect to Jamie Greene's amendment 8, I have some sympathy for that. We have many pieces of legislation where we include a right to independent advocacy. We recognise that diminished capacity can mean that sometimes the act of filling in a form can be difficult for an individual. My only site reservation is about it in terms of how we ensure that informed consent is guaranteed that this is the will of the person who is seeking the application. I will reflect further on the cabinet secretary's response to this, but I am sure that that could be dealt with in guidance. At present, I am minded to support Jamie's, but depending on how the cabinet secretary picks that up, I think that Mary Fees is an excellent amendment that speaks very much to the eloquent remarks that she made at the top of the meeting about the importance of this not just being a redaction of the record, but a recognition that we as a country got this wrong and we harmed a great many people in the application of our laws. I think that this recognition and profound apology is the very least that those men deserve. Good morning, panel. I wanted just to just a quick comment on amendment 8. I wonder if the cabinet secretary would mention or speak to this in his response. I just wonder if this amendment is actually necessary, because do not do the normal laws of power of attorney not already cover this, and I just wondered if he would address that when you reply. Amendment 2 addresses the point that Stuart Stevenson raised at the stage 1 debate on the 17 April regarding section 5 of the bill, which sets out the information that a person seeking a disregard must include in their application. Section 5.2 of the bill requires the applicant to state their name and address at the time of conviction. As Stuart Stevenson noted, given the passage of time, it is possible that some applicants may not be able to state with certainty what their address was at the time they were convicted. While perhaps less likely, as it is possible, that an applicant may have changed their name, I may not be entirely sure whether the conviction occurred before or after the time that they changed their name. There may also be cases where an applicant cannot say with certainty what their name was at the time when they were convicted. Therefore, I would ask the committee to support amendment 2. Turning to amendment 3, amendment 6 seeks to set out in statute what requires to be included in a letter, which confirms that a disregard has been granted. It places a duty on Scottish ministers to include in any such letter a statement making clear that the applicant has been pardoned for historical sexual offence, noting that the wrongfulness and the skimetry effect of the conviction are acknowledged by the act, and an apology for the conviction acknowledging the wrong done to the applicant by the state. It also requires a letter to be signed by the First Minister. Amendment 3A provides that the letter should be accompanied by a certificate of historical sexual offence disregard. Understanding the importance of ensuring that the wrongfulness and the skimetry effect of the disregarded conviction is acknowledged and that a disregard letter should make clear that the wrong was done to the applicant and not by them. I can therefore confirm that the Scottish Government will ensure that those points are reflected in the letters to applicants confirming that a disregard has been granted. On that basis, I would ask the member not to press the amendment. Turning to amendment 8, which seeks to put in place a duty for Scottish ministers to make regulation to enable an application for a disregard to be submitted on behalf of a person who has been convicted of a historical sexual offence. There are already circumstances where a person asks, for example, a slister or a person who has a power of attorney to submit an application on their behalf. I would like to reassure the committee that the normal laws relating to agency and power of attorney would allow for e.g., a person's slister or someone with power of attorney to submit an application on behalf of someone with such a conviction. Without that, we would need to make any specific provision in the bill to allow for that. I am happy to give way. Thank you, cabinet secretary, for giving way. I appreciate that response to Gail Ross's question about existing provisions that allow for a power of attorney to apply on someone's behalf. My worry with that is that it is very focused and restrictive to people with or agencies with power of attorney, not other third parties such as those that Alex Colehamann mentioned, advocacy groups, third party groups, charities or even individuals who may wish to make an application with relevant due consent as detailed in guidance. However, the current provisions, based on what the cabinet secretary said, would not guarantee that those people could make an application, and that is something that I would like to see hence the amendment. You need to recognise that the person will have to give consent for the purpose of someone else to apply on their behalf. If they do not have capacity to give that consent, that is where the provision of a power of attorney would come into play. If the person gives consent for another third party to make an application on their behalf, that will apply. That can apply within the normal laws that it stands at the present moment, but it will have to give consent. For the very reasons that Alex Colehamann mentioned, if we were to receive an application from a third party, but the person for whom the application was for had not given consent to it, we would have no way of knowing whether that person is actually consented to the application in the first place. They will always have to give consent if they have capacity, where they do not have capacity, the provisions of power of attorney etc are applied. That already stands in law. For the very purpose of what you are saying, you are seeking to have this amendment for, that will already happen. It happens within the existing legal framework that we have. There is no requirement for anything to be put in this legislation to allow that to happen. Stuart Stevenson will ask you to wind up in this group and press or withdraw your amendment. Thank you, convener, in illuminating the debate where I learned some interesting things. I will just make a re-observation about name change. In Scott's law, as I understand it, there is no direct legal process for changing your name. You can simply start using another name on any day that you choose. That might just further illuminate the issue of name. I have personal experience in someone I know who did that. Nothing more to say. I think that it has all been said, convener, and I press my amendment. The question is that amendment 2 be agreed. Are we all agreed? The question is that section 5 be agreed. Are we all agreed? I call amendment 8, in the name of Jamie Greene, already debated with amendment 2. Jamie, to move or not to move? The question is that amendment 8 be agreed. Are we all agreed? No. I am going to vote. Those who agree with amendment 8, please show. And those against. Amendment 8 is not agreed. The question is that section 6 be agreed. Are we all agreed? I am moving on to section 7. I call amendment 3, in the name of Mary Fee, already debated with amendment 2. Mary Fee, to move or not to move? On the basis of the cabinet secretary's comments, not moved. Committee agreed with that yet. I call amendment 2, in the name of Jamie Greene, already debated with amendment 2. Jamie, to move or not to move? 3A, based on Mary Fee's comments, not moved. Not moved. I am happy to do that. The question is that amendment 3 be agreed. Mary Fee, to press or withdraw amendment 3. The question is that section 7 be agreed. Are we all agreed? I call amendment 9, in the name of Jamie Greene, in a group of its own. Jamie, to move and speak to amendment 9. Thank you, convener. You're doing a sterling job, thank you. I'll try not to overcomplicate this of one single amendment. We did talk in great detail about the ability for legal aid to be given to people. I appreciate there are already existing provisions and rules around that. My amendment says simply that, for the avoidance of doubt, civil legal aid would be available subject to entitlement for the purpose of an appeal under the section. I think that that is something that members felt strongly should be available to them, that this legislation is something that people should be able to benefit from, again, subject to entitlement, the legal aid system if they have to go through an appeal. It's a very simple addition to clarify that that was a strongly held view, and it is, indeed, to take away any doubt that people may use the legal aid system for the purposes of appeals in this legislation. I would hope that members would support this amendment. Alex Cole-Hamilton Thank you, convener. Again, I have a lot of sympathy with this amendment. We came up in the stage 1 debate and several times during proceedings. I will support this amendment unless I hear from the cabinet secretary that other provision is existing, which will automatically trigger subject entitlement to legal aid in the normal run of things. I think that it's important that there be no legal impediment to justice in this regard, and that goes for appeals as well. Michael Matheson Thank you. I was not on the committee at the stage 1 deliberations, but my understanding is that I'm not sure what effect this amendment would have, because my understanding is that people would be entitled to legal aid if they were eligible anyway, if they were entitled to legal aid. I wonder if the cabinet secretary could clarify that before deciding how he would vote. Ruth Davidson Any other comments from the cabinet secretary? No, cabinet secretary. Convener, amendment 9 is intended to put beyond doubt that a person wishing to apply against the refusal of an application for a disregard is entitled to civil legal aid subject to meeting the eligibility requirements. It might be helpful if I outline the Scottish Government's position concerning the availability of legal aid in respect of the bill. In terms of preparation of an application for a disregard, we do not anticipate that legal assistance should be required in order to submit an application for a disregard. That is because the application process will be designed to be as user-friendly as possible. We will be working with the equality network to ensure that this user-friendly process is delivered. However, if an applicant feels that they need to seek legal advice and assistance from a slister, that would be available for the preparation of the application for a disregard, subject to the general eligibility requirements under advice and assistance scheme. Where an applicant wishes to be represented in court in an appeal, civil legal aid is subject to eligibility requirements, including financial eligibility. I hope that that reassures the committee that legal aid is available to someone wishing to appeal against the refusal of a disregard. Provision can be made for representation in court through advice by way of representation, ABWAR, instead of civil legal aid. ABWAR is advice and assistance that is provided to a person by taking on their behalf any steps in instituting or conducting any proceedings before a court. I can therefore confirm that the Scottish Government will bring forward regulations to make ABWAR available to a person who wishes to appeal a decision to refuse an application for a disregard, subject to eligibility requirements. Importantly, provisions of ABWAR will not be conditional on financial eligibility tests. On that basis, I would ask the member to withdraw amendment 9. On the first point around the fact that people should not need legal assistance to complete the initial application, that is a very important point and a very welcome comment. I appreciate that a lot of work will go into the application process to make sure that it is as simple and jargon free as possible, so that the widest variety of people can take opportunity of the process. The appeals process is somewhat different. It is a much more legal and technical process, and for that reason I felt that, subject to entitlement, we should be specific on the face of the bill. However, based on the comments that the cabinet secretary has made and the commitment made by the Scottish Government to offer assistance to people, it sounds like it will not be means tested by financial means. If people are rejected and choose to appeal, I believe that legal assistance will be offered to them. That is very welcome and a very positive step forward. I am sure that that will be appreciated by those in the future who may need to use that process. I would like to thank the cabinet secretary and the Scottish Government for that, and for that reason I will not move the amendment. Thank you, convener, and I move the amendment in my name. Good morning, cabinet secretary. My amendment is to put the onus on the Scottish Government to take steps to publicly promote awareness and understanding of the operation of the act. During the committee sessions, it became clear that work would have to be done around the disregard process in order to advertise it, if you would like, its existence and to make it abundantly clear that, despite the pardon, people still have to go through the separate process of applying for a disregard. As intimated during evidence sessions, a witness intimated that, having asked a couple of his friends about the bill, they knew nothing about it, so we cannot assume that that information will naturally disseminate into the wider public. We need to be proactive in publicising it and recognising not all gay men, particularly those in more remote areas, are linked to LGBTI groups. Therefore, the reason I put the amendment forward is that I have moved the amendment in my name. I support the amendment in the name of Annie Wells. I believe that the statement of apology made by the First Minister was a welcome first step on our national atonement in this, but I think that the promotion of this scheme is very important to ensuring that people are aware not just of their rights to a disregard and a pardon, but are actively encouraged to come forward to do so. Thank you. Any other comments from colleagues, not the cabinet secretary? Convener, amendment 4 seeks to put in place a requirement for the Scottish ministers to take appropriate steps to promote public awareness and understanding of the operation of the act. As set out in our response to the committee stage 1 report, I can confirm that we will work closely with relevant stakeholders, including Stonewall and the equality network, to ensure that people who may have convictions for historical sexual offences for engaging activity that is now lawful are aware of the pardon and disregarding disregard scheme and of the distinction between the two. In doing so, we are also committed to considering the particular needs of people with such convictions who may be living in rural and remote communities. I note that such a requirement is not normally included within legislation. The statute books would become very crowded if we were to have a provision about publicity in relation to every new offence or policy that was put into law. When a new offence or a significant policy change is created by the Scottish Government, we will always consider what steps are required to ensure that the public are made aware of those provisions. I hope that that provides reassurance that members are looking for, and I would invite the member not to press for amendment 2. Thank you, cabinet secretary. Annie Wells, to wind up and indicate whether you wish to press or withdraw. Thank you, convener. I welcome the remarks from the cabinet secretary, and on that note, I will withdraw my amendment. Committee content. Moving on to the review of the act, I call amendment 10, in the name of Jamie Greene, grouped with amendments 11 and 15. Jamie, to move amendment 10 and speak to all of the amendments in the group. Thank you, convener. The members and the panelist might want to note that amendments 11 are very similar in nature. Amendment 11, I will come on to that. The purpose of the act is two things. One is to give ministers in the future the opportunity to review the effectiveness of the act. The purpose of that, as detailed in section 1, and 2 of my amendment, is based on what this is in a very good place, this piece of legislation. We, in future, have learned lessons, again, from other pieces of legislation that sought to achieve similar outcomes. Things do arise. We do your best up front in this Parliament to get legislation right, but review of legislation is a common thing. The wording of this appears in many other pieces of legislation, and I think that it would provide an opportunity that the Scottish ministers may not must review the effectiveness of the act in the future. By doing so, consult people, as they consider appropriate, some of them perhaps in the room today. I think that that would be helpful on a number of reasons that, in the future, ministers may ensure that this piece of legislation has met its objectives. It is intended to be helpful in that respect. Sections 3 and 4, perhaps, we dealt with earlier with regard to the ability, as part of that review to alter the definition of historical sexual offences. The specific reason for 10 and 11, which goes further, was to address another issue, which we discussed at Great Detail. That is around those and something that I felt very strongly about, around those who had been subject to offences while serving in our military. I appreciate that those offences may have been administered via other jurisdictions, nowhere in my amendment am I seeking to try and find a solution to that problem. We are all of agreement that there is still an outstanding issue that neither this bill nor the legislation England world addresses. There are still people out there who were court-martialed or dismissed from the armed forces for committing no offence whatsoever, rather than being gay. Although I do not, for a minute, expect this piece of legislation to deal with that, I do hope that, in the future, all concerned bodies, both Governments and agencies and the military themselves, can sit down and come up with a solution to this problem. There is no solution at the moment. There is discussion. My amendment does not seek to offer a solution. It simply allows that, in the future, there is an agreement, for example, that offences that were committed in Scotland or people who reside in Scotland wish in the future to receive some sort of pardon or disregard for those types of offences that this piece of legislation may be used as a vehicle to do so. I have been very careful with the wording of it not to put in anything that is outside the competency of this Parliament. It simply asked the minister to consult on the matter and, for that reason, give subject to regulation the ability for ministers to alter the definition of historic sexual offences. An example of that may be to include wording to cover those who were dismissed from the armed forces for committing a so-called defence. Again, that is subject to further discussion between Governments and agencies. I appreciate that those are difficult circumstances. We do not know what the outcome of those discussions may be, but I would like to think that, due to the progressive nature of this piece of legislation, which is not as narrow as others, if it was possible in the future for this bill to be used as a mechanism to add further pardons and disregards, I would like to think that it could be used so if it was deemed technically possible to do so. That is the only reason that I have added amendment 11. I would hope that the Cabinet Secretary would have some sympathy with the premise of the amendment. Amendment 15 is largely a technical amendment that relates to amendments 10 and 11, so I will not speak to those. However, I would be keen to hear other members' views perhaps on that and, indeed, the cabinet secretary's comments on my intention behind those amendments. I have a deal of sympathy for some of the comments that Jamie Greene has just made. Any legislation that is passed by Parliament, one of the most important aspects of that, is how we make sure that the legislation adequately does the job that it is intended to do. I think that the role of scrutiny and the effectiveness of the legislation, in my view, and I would be interested in the cabinet secretary's view on this, this committee could play a particularly important role in that with the equality network and other stakeholders. As I say, I have sympathy for Jamie Greene's intention with those amendments, but I think that this committee, as we go forward, would play a particularly crucial and important role in scrutinising the legislation. Maybe Jamie Greene can talk to this point in summing up. In amendment 11, Scottish ministers must consult Her Majesty's military forces. We know that that is a reserved issue, so I wondered how that interplay would work. I do not know if the cabinet secretary wants to address that issue as well. Given that amendment 10 and 11 provide for two different versions of an amendment that provides for a power for the Scottish ministers to review the outcome and effectiveness of the act, I agree that it is important that we monitor and evaluate new legislation to ensure that it has the effect that was intended. However, members will note that amendment 11 requires that, in undertaking such a review, Scottish ministers would be required to consult Her Majesty's military forces. As members will be aware, the power to legislate to grant pardons or disregards with respect to convictions for military offences is reserved to the UK Parliament, and someone with such a conviction can apply for a disregard via the Home Office's disregard scheme. As such, I do not think that it would be appropriate for a power to undertake a review of the operation and effectiveness of the act to include such a requirement, given that legislation will, in fact, will not impact on Her Majesty's forces. I also have some concerns regarding the way that subsection 3 is drafted. It requires that, in undertaking the review, the Scottish ministers seek advice on any further historical offences that take place in Scotland but are not listed under section 2. I think that what is intended is that Scottish ministers should seek advice as to whether there is evidence that people have been convicted of same-sex sexual activity that is now lawful but is not included in the list contained in section 2 1 of the bill. As I said earlier on to another amendment, I think that the actual nature of the definition of historical sexual offence in section 2 2 means that the use of this power would be very unlikely, if ever, at all. However, at the convener, the Parliament also has an important role to play in the post-legislative scrutiny of legislation. In my view, it would be more appropriate for Parliament to conduct that process rather than internally within the Government. Therefore, I invite the member not to press on those amendments. Thank you, convener, and thank you to my colleagues for their helpful and constructive comments. Maybe I can address some of the questions that they had. I think that Mary Phee makes a very good point. I think that this committee in particular will have a very valuable and purposeful role in reviewing the effectiveness of the act in future. Review of acts and placing a duty on ministers to review acts is common practice. It adds strength to the duty. I appreciate the cabinet secretary's comments that it is perhaps for Parliament to review not for ministers. However, I think that Parliament always has a duty throughout its dealings to review legislation. I will take on board the comments around sections 3 and 4. The reason why I submitted both 10 and 11 is that I knew that 11 would raise the issue that Gail Ross issued around competency and reserved matters, and I do appreciate that. It was really to stimulate the conversation around that. I still think that there is no harm in both Governments and the military sitting down having a conversation and the fact that some of the people who may wish to or will be affected by that may reside in Scotland or the offence may have taken place in Scotland. It will all be under other law. By removing the references to the military forces in amendment 11, I would have thought that that may have been more palatable to the cabinet secretary. To address some of the other issues in here, I think that if the committee is confident that Parliament itself, without placing a duty on ministers, will review this act, then I am confident in the abilities of the committee to do so. I will withdraw amendments 10, 11 and 15. I call amendment 11, in the name of Jamie Greene, already debated with amendment 10. Jamie Greene, to move or not move? I now call amendment 12, in the name of Jamie Greene, and a group of its own. Jamie Greene, to move and speak to amendment 12. This is an important amendment that I have included around guidance. The purpose, initially, when I spoke to the legislation team, was to ensure that people would be sound posted to this piece of legislation when going through disclosure processes. That is the background to this. I think that guidance should be issued around this legislation. That is the purpose of the inclusion of a guidance clause. In particular, I would like guidance to be given with regard to disclosure schemes, particularly under the Protection of Vulnerable Groups Act 2007, so far as they relate to their interaction with this piece of legislation. The reason for that is that we discussed at great length in the committee that we felt strongly that on the guidance for application for disclosure or enhanced or vetting processes that people should be sign posted. I have worded in a way that it does not say that the Scottish Government will have to reprint and redraft all current guidance for vetting processes and disclosure schemes. I appreciate that. That is onerous. In future iterations of that guidance, I would like to see in black and white sign posting towards this legislation. That is the purpose of the guidance. It has been drafted in this way for that reason. I would hope that other members of the committee would support the concept of both guidance being issued by the Government but also being explicit and for the violence of doubt that guidance should also be addressed under disclosure schemes. We heard, for example, evidence that people who had been applying for certain types of jobs and going through the process were not really aware of what they had or did not have to put down with regards to historic offences. I would like to think that people who are not aware of this piece of legislation but perhaps interact with the legislation through the disclosure process will then be very proactively sign posted towards this piece of legislation, take advantage of that process, the disregard process and then perhaps proceed with their vetting processes. I think that that would be a very positive move that might increase the uptake of the disregards and not be an overly onerous ask of the Government to ensure that its guidance in those processes was very explicit as to the existence of this piece of legislation and not just leave it up to public awareness that it exists. For that reason, I would ask the committee to support amendment 12. I have a great deal of sympathy with everything that Jamie Greene has said. I would have thought, however, that a bill of this nature, given its interrelationships with other pieces of legislation such as the Public Records Scotland Act, the relevant pieces of legislation around disclosure and data protection legislation, by prerequisite to the implementation, the successful implementation of the act would require quite an extensive amount of guidance anyway in terms of its application. Subject to the cabinet secretary confirming that, I would not be minded to support it because I would imagine that we could not go very far into this without the guidance. Are the committee members wish to participate in the debate? No? Amendment 12 places a requirement on the Scottish ministers to issue guidance on such matters relating to the operation of the act, as they consider appropriate. I would like to take this opportunity to reassure the committee that the Scottish Government will provide guidance to those bodies responsible in any way for implementing the disregard scheme. I note that Subsection 2 provides that this guidance must make provision concerning the disclosure scheme contained in the protection of vulnerable group Scotland Act 2007 insofar as it is affected by this act. It might be helpful though if I clarify the disclosure scheme in question are operated by disclosure Scotland. They work on the basis of the information provided to them by Police Scotland. The purpose of the disregard scheme is to ensure that the disregarded convictions are either deleted or marked so that they are never disclosed. As a consequence, Police Scotland should not pass information about disregarded convictions to disclosure Scotland for the purposes of disclosure checks. However, appropriate guidance will be provided to relevant bodies, including disclosure Scotland, to take forward the provisions in the bill. However, those provisions do not require to be on the face of the legislation. On that basis, I would ask the member not to press his amendment. Jamie Greene will wind up and indicate whether he presses or withdraws. Can I just clarify and invite the cabinet secretary to intervene in my summing up that he is confident that the future guidance that is announced by the company disclosure applications will make reference to the existence of this piece of legislation? Specific guidance will be issued in relation to the application of this legislation once it has been approved by Parliament. That is often the case for all pieces of legislation, and it will be provided and tailored to assist and advise relevant organisations, for example organisations that Alex Cole-Hamilton made reference to. That would happen as a matter of course in these matters, but you would not stipulate that on the face of the legislation. The reason why the guidance is issued is to make sure that the application of the act is properly implemented and that it is properly understood by those agencies. That will happen as a matter of course and will happen with all pieces of legislation that will bring in new statutes of this nature. I thank the cabinet secretary for that. I am reassured by his comments in that respect. Do you wish to press or withdraw? I will withdraw. I call amendment 5, in the name of the cabinet secretary and a group of his own, and I wish to point out that amendment 5 is agreed to. I cannot call amendments 13, 14 and 15 because of a preemption. Cabinet secretary, to move and speak to amendment 5. Amendment 5 amends section 14, which makes provision regarding the regulation-making powers contained in the bill to provide that two of those powers will now be subject to affirmative procedure. First, the power under section 13 to prescribe the manner in which references to disregarded convictions are to be removed. Second, the power under section 15 to prescribe relevant record keepers to which the disregard scheme applies. The amendment responds to the recommendations at paragraph 115 of the committee's stage 1 report that, given the importance of such regulations to the effective operation of the disregard scheme, they should be subject to affirmative rather than negative resolution procedure. We accept those recommendations in our response to the stage 1 report and therefore move amendment 5. Thank you very much, cabinet secretary. Does the committee members wish to participate in the debate? No. Cabinet secretary, wind up. The question is that amendment 5 be agreed. Are we all agreed? We are all agreed and the preemption rule stands. The next question is that section 14 be agreed. Are we agreed? The next question is that sections 15 to 18 be agreed. Are we all agreed? The question is that the long title be agreed. Are we all agreed? That end stage 2 of the consideration of the bill. Thank you so much. Cabinet secretary, thank you very much. Can I put on record that this has been a superb bill to work with? It is very well drafted and with an intention that makes us all incredibly proud to be part of this process. That concludes section stage 2 consideration of the historic sexual offences pardons and disregard Scotland bill. I thank all members for their participation this morning. It has been great to see it. The next meeting will be the 31st of May, starting at 9.30 in this committee room. We have no meeting next week. Jamie. Just before we close the meeting, Mary has run away. Have a seat, Mary. Just before we close the meeting, I would like to place on record while the official report is still here. Today is my last meeting on this committee. I am very sad to move on to another committee, but I would like to place on record my thanks to my committee colleagues, to the convener, deputy convener, the clerk's staff and everyone who works in this committee. It does an excellent job, but it has been a real privilege and a pleasure to be a part of this committee this past year. I wish it all the very best in its future deliberation. Thank you very much, Jamie. On behalf of the committee, can we give our grateful thanks to the work that you have done in sometimes very tenacious fashion, which is always welcome on a committee. I wish you well in your new endeavours. I now close the meeting.