Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment Regulations 2020 [Draft]
Agenda item 2 is consideration of the draft Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment Regulations 2020. I refer members to paper 1, which is a note by the clerk on the affirmative Scottish statutory instrument.
I welcome Ash Denham, the Minister for Community Safety, and her officials Kieran Burke and Jo-anne Tinto. If any members want to ask the minister a question, I ask them to type R in the BlueJeans chat box. I invite the minister to make a short statement on the instrument.
Good morning. The regulations will amend the Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003 to provide that assistance by way of representation—ABWOR—can be made available without means testing in respect of persons seeking to appeal a decisions of the Scottish ministers to refuse an application to disregard a conviction for an historical sexual offence.
The Historical Sexual Offences (Pardons and Disregards) (Scotland) Act was passed by the Scottish Parliament on 6 June 2018, and its provisions commenced in the latter part of 2019. Committee members will be aware that the purpose of the act is to pardon persons who were convicted of certain historical sexual offences and to provide a process for convictions for those offences to be disregarded. The information about such convictions that is held in records will no longer show up in a disclosure check. Relevant historical sexual offences relate to consensual sexual activity between men, which was once criminalised but is no longer illegal.
A disregard is sought, in the first instance, by way of an application to the Scottish ministers. In the event that an application is rejected, there is the opportunity of review, which is provided by an appeal to the sheriff court. When an applicant wants to be represented in court for such an appeal, the regulations provide that non-means-tested ABWOR is available, subject to the Scottish Legal Aid Board being satisfied that the case has merit. That will help to ensure that it is as straightforward as possible to apply for, and to be granted, legal representation in such cases, while, at the same time, mitigating against cases that are without sufficient merit proceeding on the basis of being wholly publicly funded.
I am happy to take any questions from the committee.
Thank you, minister. That was very clear. I am very grateful.
I warmly welcome the regulations. An historical wrong is being righted. What has prompted this very welcome move by the Scottish Government? What is the extent of the problem—if, indeed, a problem exists—or have the regulations been introduced to pre-empt potential problems?
The Scottish Government wants it to be as simple and straightforward as possible for individuals to progress applications for pardons and disregards for historical sexual offences. The reason why we are introducing the measure is that we do not want people to have to be subject to the normal financial eligibility test. There are the two other tests that I mentioned in my opening statement, but people will not be subject to the financial eligibility test, because we want to make the process as easy as possible for them.
Has there been a problem? What has prompted the regulations? I say again that they are very welcome as a way of providing ABWOR to individuals who have been the subject of an historical wrong, but has there been a problem with that?
There has not been a problem yet. To date, eight applications have been made for disregard, and six of them were approved. One did not actually need to progress as, after a check, it was found that there were no longer any records of conviction, and one case is still pending, due to coronavirus lockdown preventing access to documents. We imagine that the provision will be very little used, given how many applications have been processed so far. The 2018 act requires us to introduce the measure, which was developed with stakeholders to make the process easy and straightforward, as I said.
As no other member wishes to ask the minister questions about the instrument, we can move to its formal consideration. The Delegated Powers and Law Reform Committee has considered and reported on the instrument and had no comments. I ask the minister to move motion S5M-22554.
Motion moved,
That the Justice Committee recommends that the Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment Regulations 2020 [draft] be approved.—[Ash Denham]
Motion agreed to.
Do members agree to delegate to me the publication of a short factual report on our deliberations?
Members indicated agreement.
I thank the minister and her officials for joining us. I hope that all our business is conducted so expeditiously.