Moved by Lord Cashman
266: After Clause 170, insert the following new Clause—“Disregards and pardons for convictions etc. of certain offences(1) The Protection of Freedoms Act 2012 is amended as follows.(2) In section 92 (power of Secretary of State to disregard convictions or cautions)—(a) in subsection (1)(b), omit “or”,(b) in subsection (1)(c), at the end insert “or”,(c) after subsection (1)(c), insert—“(d) any other offence which falls within subsection (1A),”,(d) after subsection (1), insert—“(1A) An offence falls within this subsection if the offence— (a) regulated, or was used in practice to regulate, sexual activity between persons of the same sex, and (b) either—(i) has been repealed or, in the case of an offence at common law, abolished, or(ii) has not been repealed or abolished but once covered sexual activity between persons of the same sex of a type which, or in circumstances which, would not amount to the offence on the day on which this subsection comes into force.(1B) Where an offence of the type described in subsection (1A) covers or once covered activity other than sexual activity between persons of the same sex, the offence falls within subsection (1A) only to the extent that it once covered sexual activity between persons of the same sex.(1C) In this section, “sexual activity between persons of the same sex” includes—(a) any physical or affectionate activity between persons of the same sex which is of a type which is characteristic of persons involved in an intimate personal relationship,(b) conduct intended to introduce or procure such activity.”,(e) in subsection (3)(a), before the words “the other person” insert “in respect of an offence mentioned in subsection (1)(a)-(c)”,(f) in subsection (3)(b), substitute the full stop with “, or”,(g) after subsection (3)(b), insert—“(c) in respect of an offence that falls within subsection (1A) the conduct constituting the offence, if occurring in the same circumstances, would not be an offence on the day on which this subsection comes into force.”” Member’s explanatory statementThe purpose of this new Clause is to extend the current disregard and pardon schemes in England and Wales to enable individuals who were convicted of or cautioned for offences because of engaging in same-sex sexual acts, of a kind that would be lawful today, to apply to have a conviction or caution disregarded and, if successful, be pardoned.
My Lords, I speak in favour of Amendments 266 and 267 and pay tribute to the work of my noble friend Lord Lexden and Professor Paul Johnson of York in doing so. Due to the lateness of the time I want to focus exactly on what our amendments do: they are focused on the pardons and disregards scheme. In 2012 the scheme was introduced to enable those living with a caution or conviction for a now-repealed homosexual offence to have that caution or conviction disregarded. In 2017 a further scheme was introduced to provide those so cautioned or convicted, both living and dead, with a pardon. A pardon, aside from its legal status, is a strong, symbolic apology to each and every person who has been wronged.
However, the disregard and pardon schemes in England and Wales are significantly flawed because they encompass only a small fraction of the laws that, over the decades and centuries, have immiserated the lives of gay and bisexual people. For five years I have worked closely with my noble friend Lord Lexden and, as I said, with Professor Paul Johnson at the University of York.
Significant problems, as I said, remain in this disregard and pardon scheme. The amendments before your Lordships would cover, for instance, now-repealed criminal offences such as the offence of solicitation by men, which was used to entrap gay and bisexual men, sometimes for doing nothing more than chatting up another adult man. The amendments would also cover the offences in the repealed service discipline Acts, which were once used to prosecute and punish consensual same-sex relationships. Those living with cautions or convictions for these and other relevant offences would be able to apply for a disregard and, if successful, be pardoned. Those who have died will be posthumously pardoned.
It is important that I am absolutely clear on one point: no one who was cautioned or convicted in respect of conduct that would be an offence today would be able to attain a disregard or receive a pardon. Our amendments to the Bill contain the strongest safeguards to ensure that those who committed crimes that today remain crimes cannot take advantage of, or benefit from, the disregard and pardon scheme. Equally, the extension of the disregard scheme that we propose means that it should be decided on a case-by-case basis by the Secretary of State, who would grant a disregard only if satisfied that the conduct in question would not be an offence today.
I could speak longer and in greater detail on crimes that have been perpetrated against homosexual men and bisexual men over 500 years, but I will say nothing more. I beg to move the amendment.
My Lords, I endorse all that my noble friend Lord Cashman has just said. We have been close allies, as he mentioned, for five years, in a sustained campaign to bring far more gay people within the scope of a hugely important scheme, through which they can attain disregards and pardons for offences that have been rightly overturned by Parliament. The House will understand how earnestly we hope that the end of our campaign is at last in sight.
Our amendments include provisions originally incorporated in amendments to the Armed Forces Bill, now completing its passage through the House. The provisions in question have now been embodied in these amendments. This has been done on the advice of the two Ministers concerned—my noble friends Lady Goldie and Lady Williams—with whom most helpful conversations have been held.
I refer to the provisions that relate to the Armed Forces. More gay members of our Armed Forces need the belated release from past injustice that our proposal will provide. Many were routinely punished, sometimes with imprisonment, under the service discipline offences, for actions such as disgraceful conduct for engaging in consensual same-sex activity, even when, after 1967, this was perfectly legal for civilians. They must now have the redress that our amendments would provide. Medals have been restored to former gay service personnel. Their reputations must be fully restored, too, by the removal of the stains that they should never have borne in the first place.
It was through initiatives in this House that the disregard and pardon scheme was significantly extended, five years ago. It is immensely gratifying to know that wide support exists across the House today for the scheme’s further enlargement to bring redress to many more gay people who have suffered grave injustice, particularly former gallant members of our Armed Forces, who served our country in peace and in war.
My Lords, I rise to briefly and extremely humbly speak on behalf of my noble friend Lady Jones of Moulsecoomb, who signed Amendment 266. I am greatly honoured to follow two such champions of this matter of undoing great injustices of the past.
I want to record our support for this and also to ask the Minister a question—to which I do not expect an answer now. These clauses provide for people to apply. Why can we not have a situation where we go through, find and identify these case and wipe them clean? That is the question I was asked to ask, and I am asking it. I do not necessarily expect an answer now, but I am putting it on the record.
My Lords, we support these amendments, so ably proposed by the noble Lord, Lord Cashman, supported by the noble Lord, Lord Lexden. I also pay tribute to the Minister for her sympathetic approach to these issues over the years. These offences should never have been offences in the first place. It therefore makes complete sense that, if people were convicted of such an offence and they apply to have a conviction or caution disregarded, and if that application is successful, they should be pardoned. Of course, deceased persons falling into this category cannot apply to have a conviction or caution disregarded, but they should be able to receive a posthumous pardon if the offence qualifies. It has taken 500 years to get to this stage and the Government have been making progress on these issues. These are the final pieces of the jigsaw and we support them.
My Lords, my noble and learned friend Lord Falconer also added his name to this amendment. We clearly support the amendments. I pay tribute to my noble friend Lord Cashman and the noble Lord, Lord Lexden, who I understand campaigned for decades on this issue. I thought it was quite moving, if I may use that word, to hear the noble Lord, Lord Lexden, saying he earnestly hoped that he was coming towards the end of his campaign. I hope he is right and that the Minister may be able to give him some comfort in that respect. Everybody who has contributed to the debate thinks this is a thoroughly appropriate amendment and, even though it has been a very truncated debate, the passion and the sense of finality have come through, and I very much hope that the Minister will give a suitable response.
My Lords, it is about three minutes to the witching hour and I am absolutely delighted to be able to respond on behalf of the Government to these amendments. I and the Government are committed to enabling those with historical convictions for decriminalised homosexual conduct to apply to have their convictions disregarded. To answer the noble Baroness, Lady Bennett of Manor Castle, in discussion with the noble Lord, Lord Cashman, Professor Paul Johnson and my noble friend Lord Lexden, we felt that this was the neatest way to do it, as opposed to any other way. We have been actively exploring whether further offences can be brought within the scope of the scheme, to enable more people, both civilians and ex-service personnel, to benefit from it.
I really want at this point to pay tribute to my noble friend Lord Lexden and to the noble Lord, Lord Cashman, who is my noble friend, and to Professor Paul Johnson at the University of York for his expertise on this issue. I am very grateful for the conversations we have had on these amendments and similar amendments to the Armed Forces Bill. I am also grateful to the noble Lords for reiterating their commitment during Committee to work with the Home Office and the MoD on the best way forward for achieving our joint desire to redress this historic injustice.
We accept that the current scheme may be too narrow, as it is essentially confined to convictions for the now-repealed offences of buggery and gross indecency between men, but, as noble Lords have indicated, other now-repealed offences were also used to unfairly target gay men and women simply because of their sexuality. In further righting these historic wrongs, we need to ensure that any disregards in respect of additional offences meet the established legal criteria to ensure that necessary safeguards are upheld—this is something we have agreed and that the noble Lord, Lord Cashman. has outlined tonight. The disregard scheme was deliberately and carefully designed in a way that ensures that the Home Office does not inadvertently disregard convictions or cautions for behaviours which are still illegal today or which involved other illegal behaviours, such as underage or non-consensual sex or sexual activity in a public toilet, which is still an offence under Section 71 of the Sexual Offences Act.
Currently, the disregards scheme includes only offences that have been repealed or abolished in common law. This ensures that only offences for behaviours which have been decriminalised by Parliament will be disregarded. This is important because the removal of convictions and cautions from official records is a serious matter and therefore appropriate safeguards must be in place. I welcome the fact that the noble Lords supporting these amendments accept this very important qualification. The Home Office is ready to consider extending the scope of the scheme to include a wider set of offences and work is under way across government to this end, thanks to Professor Johnson and others.
I know that the noble Lord, Lord Cashman, and my noble friend Lord Lexden are impatient for this work to be completed. I am very impatient—we started this five years ago—and, in a nutshell, I do not want to let this legislative opportunity pass. If the noble Lord, Lord Cashman, would be content to withdraw his amendment today, I can assure him that the Government will give sympathetic consideration to the case that he and others have made ahead of the next stage.
My Lords, I thank all noble Lords who have spoken and pay tribute to the Minister, my noble friend Lady Williams. Brevity is the soul of wit, but tonight we have proven that it can also deliver that which is right and just. We will await the outcome of discussions and, as one would expect, reserve the right to bring forward proposals on Report if necessary. I beg leave to withdraw the amendment.
Amendment 266 withdrawn.
Amendment 267 not moved.
House adjourned at 10.02 pm.