Amendment 97ZB

Police, Crime, Sentencing and Courts Bill - Report (4th Day) (Continued) – in the House of Lords at 9:24 pm on 10th January 2022.

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Baroness Williams of Trafford:

Moved by Baroness Williams of Trafford

97ZB: After Clause 165, insert the following new Clause—“PART 11ADISREGARDS AND PARDONS FOR CERTAIN HISTORICAL OFFENCESDisregard of certain convictions or cautions(1) The Protection of Freedoms Act 2012 is amended in accordance with subsections (2) to (10).(2) Section 92 (power of Secretary of State to disregard convictions or cautions) is amended in accordance with subsections (3) to (5).(3) In subsection (1) for the words from “under” to the end of paragraph (c) substitute “in circumstances where the conduct constituting the offence was sexual activity between persons of the same sex”.(4) In subsection (3)—(a) in paragraph (a)—(i) for the first “the” substitute “any”,(ii) for “conduct constituting the offence consented to it and” substitute “sexual activity”, and(iii) omit the second “and”, and(b) for paragraph (b) substitute—“(b) the offence has been repealed or, in the case of an offence at common law, abolished by enactment (whether or not it has been re-enacted or replaced), and(c) the sexual activity would not, if occurring in the same circumstances at the point of decision, constitute an offence.”(5) After subsection (6) insert—“(7) In this section “sexual activity” includes—(a) any physical or affectionate activity which is of a type characteristic of people involved in an intimate personal relationship, and(b) conduct intended to lead to sexual activity.”(6) In section 93(3) (applications to the Secretary of State), for the words from “the matters” to the end substitute “— (a) whether a conviction or caution is of a kind mentioned in section 92(1);(b) the matters mentioned in condition A in that section.”(7) In section 94 (procedure for decisions by the Secretary of State)—(a) in subsection (1)—(i) after “considering” insert “whether a conviction or caution is of a kind mentioned in section 92(1) or”, and(ii) for “section 92” substitute “that section”,(b) in subsection (2)—(i) after “deciding” insert “whether a conviction or caution is of a kind mentioned in section 92(1) or”, and(ii) for “section 92” substitute “that section”,(c) after subsection (2) insert—“(2A) If the Secretary of State refuses an application on the basis that the caution or conviction is not of a kind mentioned in section 92(1), the Secretary of State must—(a) record the decision in writing, and(b) give notice of it to the applicant.”(8) In section 99 (appeal against refusal to disregard convictions or cautions)—(a) in subsection (1)(a) after “Secretary of State” insert “refuses an application on the basis mentioned in section 94(2A) or”,(b) in subsection (3), for the words from “that it” to the end substitute “—(a) that the conviction or caution is of a kind mentioned in section 92(1), it must make an order to that effect;(b) that it appears as mentioned in condition A of that section, it must make an order to that effect.”, and(c) in subsection (5), after “subsection (3)” insert “(b)”.(9) In section 100(1) (advisers)—(a) for the second “Secretary of State” substitute “Secretary of State—(a) the caution or conviction is of a kind mentioned in section 92(1), or”,(b) the remaining text becomes paragraph (b), and(c) in that paragraph for “section 92” substitute “that section”.(10) In section 101—(a) in subsection (1)—(i) in paragraph (a) of the definition of “conviction”, after “proceedings” insert “(including anything that under section 376(1) and (2) of the Armed Forces Act 2006 is to be treated as a conviction for the purposes of that Act)”,(ii) at the end of the definition of “sentence” insert “(including anything that under section 376(1) and (3) of the Armed Forces Act 2006 is to be treated as a sentence for the purposes of that Act),”,(iii) at the end of paragraph (a) of the definition of “service disciplinary proceedings” omit “or”,(iv) after paragraph (b) of the definition of “service disciplinary proceedings” insert “, or(c) in respect of a service offence (whether or not before a court but excepting proceedings before a civilian court within the meaning of the Armed Forces Act 2006);and for the purposes of paragraph (c) “service offence” means a service offence within the meaning of the Armed Forces Act 2006, or an SDA offence within the meaning of the Armed Forces Act 2006 (Transitional Provisions etc) Order 2009 (SI 2009/1059).”, and(v) in the appropriate place insert—““enactment” includes an enactment contained in subordinate legislation (within the meaning of the Interpretation Act 1978),”,(b) omit subsections (3) and (4),(c) in subsection (5) for paragraphs (a) and (b) substitute “a reference to an inchoate or ancillary offence relating to the offence.”,(d) in subsection (6)—(i) for the first “or incitement” substitute “, incitement, encouraging or assisting”, and(ii) for the second “or incitement” substitute “, incitement, encouraging or assisting”,(e) after subsection (6) insert—“(6A) For the purposes of section 92, an inchoate or ancillary offence is to be treated as repealed or abolished to the extent that the offence to which it relates is repealed or abolished.(6B) A reference to an inchoate or ancillary offence in relation to an offence is a reference to an offence of—(a) attempting, conspiracy or incitement to commit the offence,(b) encouraging or assisting the commission of the offence, or(c) aiding, abetting, counselling or procuring the commission of the offence.(6C) For the purposes of section 92, an offence under an enactment mentioned in subsection (6D) is to be treated as repealed to the extent that the conduct constituting the offence under the enactment—(a) was punishable by reference to an offence under the law of England and Wales which has been repealed or abolished, or(b) if the conduct was not punishable by the law of England and Wales, was punishable by reference to equivalent conduct constituting an offence under the law of England and Wales which has been repealed or abolished.(6D) The enactments are—(a) section 45 of the Naval Discipline Act 1866,(b) section 41 of the Army Act 1881,(c) section 41 of the Air Force Act 1917,(d) section 70 of the Army Act 1955,(e) section 70 of the Air Force Act 1955,(f) section 42 of the Naval Discipline Act 1957, and(g) section 42 of the Armed Forces Act 2006.”, and(f) in subsection (7) for “(5) and (6)” substitute “(5), (6) and (6B)”.(11) Nothing in this section affects the disregard of a conviction or caution that was disregarded before this section comes into force.”Member’s explanatory statementThis new Clause would extend the scheme for disregarding convictions and cautions for historical offences that regulated sexual activity between people of the same sex.

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department

My Lords, it really is a pleasure to introduce these government amendments to the House. In Committee, I gave a commitment that the Government would consider carefully the amendment tabled by my noble friend Lord Lexden and the noble Lord, Lord Cashman, on the extension of the disregards and pardons scheme for individuals convicted of same-sex sexual activity. They withdrew their amendment then, and I am delighted today to be able to bring forward these government amendments which, I am pleased to say, have their support. It has only taken six years, but we got here.

Amendments 97ZB and 97ZC draw heavily on the earlier amendments to this Bill and the Armed Forces Bill. I am very confident that they reflect the aim of the noble Lords’ proposals. The removal of cautions and convictions from official records is a serious matter, and Amendment 97ZB will ensure that any disregards will meet the established legal criteria to ensure that the Home Office does not inadvertently disregard cautions or convictions for activity that is still illegal today or that involved other still illegal activity. The purpose of the disregards and pardons scheme is to put right the wrongs of the past in which the actions of those attracted to the same sex were unjustly criminalised and lives were severely and negatively affected by having these cautions and convictions on their criminal records.

The current scheme is too narrow: it is largely focused on convictions for the now repealed offences of buggery and gross indecency between men. We recognise that there were a wider range of now repealed and abolished offences, both civilian and military, that were also used to unfairly caution or convict those attracted to the same sex specifically because of their sexuality. To ensure full coverage, Amendment 97ZB will provide for the extension of the scope of the scheme to cover all repealed statutory offences and all abolished common-law offences of this nature. The scheme is also being extended to all service offences, so general disciplinary offences that were used to prosecute those individuals attracted to the same sex will now be covered.

Amendment 97ZC separately extends the existing arrangements for pardons. Those who are granted a disregard will automatically be pardoned. We recognise that many people have now died, or sadly will die, without the opportunity to seek a disregard. The amendment therefore makes provision for posthumous pardons for those who die before 12 months have elapsed after the provisions come into force. Where an offence is repealed or abolished after the provision comes into force, it will also fall within the scope of the scheme. In those cases, provision is made for posthumous pardons for those who die before 12 months have elapsed after the repeal or abolishment.

I take this opportunity to thank my noble friend Lord Lexden and the noble Lord, Lord Cashman, for their continued hard work on this issue. It has taken, as I have said, six years. I also pay special tribute to Professor Paul Johnson of the University of Leeds, who, in addition to advising their Lordships, has also been unfailingly generous in sharing his expertise with officials. I hope these amendments will be the legislative answer that we have been working towards together. It is only by working together that we can achieve this type of change. I beg to move.

Photo of Lord Cashman Lord Cashman Non-affiliated

My Lords, it is a great pleasure to speak in support of these two amendments and to follow the Minister, who has, throughout the six years, made it seem a bit like fun, and so time flew past. Joking aside, her commitment from the very beginning has never been in question.

To put these amendments into context, for nearly 500 years this House routinely passed hateful legislation that damaged, and in many cases destroyed, the lives of gay people. Many of the measures that this House passed, century after century, are well known. The Acts of 1533 and 1855 are now infamous, but a battery of lesser-known laws ensured that gay people were systematically fettered within a vile and oppressive regime of regulation that prevented them living full lives.

It was only very recently, in 2003, when Parliament undertook a comprehensive reform of sexual offences law. Two very important steps have been taken, in the form of the disregard scheme introduced in 2012 and the pardon scheme introduced in 2017. These schemes are important. They address individual suffering, and they send a clear message to our society and to the world beyond it that we have confronted our shameful history and said “Never again”.

However, the schemes have hitherto been significantly flawed, because they encompass only a small fraction of the criminal offences in England and Wales and the offences covering the British Armed Forces that, over the decades and centuries, have immiserated the lives of gay people. As the noble Baroness, Lady Williams, said, for five years I have worked closely and consistently with my noble friend Lord Lexden and with Professor Paul Johnson at the University of Leeds, who has advised us wisely and without any hesitation. We have worked together to address the limitations of the schemes to bring justice to all those who need and deserve it. We have collaborated on a number of interventions leading to provisions being included in the Policing and Crime Act 2017 and the Armed Forces Act 2021 which have partially resolved problems with the schemes.

As the Minister said, under Amendments 97ZB and 97ZC, which we have worked closely with the Government to create and to which I have proudly added my name alongside that of my noble ally Lord Lexden, the Government are now bringing within the scope of the disregard and pardon schemes all the historical offences that regulated sexual activity between persons of the same sex that would be lawful today. The expanded schemes as outlined in the amendments will now cover repealed criminal offences such as the offence of importuning that was used to entrap gay and bisexual men for sometimes doing nothing more than chatting up another adult man. They will also cover offences in the now repealed service discipline Acts such as that of disgraceful conduct that were once used to prosecute or punish Armed Forces personnel who engaged in consensual same-sex relationships.

As has been said, those living with cautions or convictions for these and other relevant offences will be able to apply for a disregard and, if successful, be pardoned. Those who have, sadly, died will be posthumously pardoned.

No one who was cautioned or convicted in respect of conduct that would be an offence today will be able to obtain a disregard or receive a pardon. The expanded schemes will address solely conduct that today would be entirely lawful.

We are in this matter servants of history. We are the servants of the generations past who suffered under cruel laws and who rightly deserve justice. These amendments will once and for all ensure that every person, alive or dead, who was mistreated by English law solely because of their sexual orientation will have a mechanism through which justice can be delivered. The amendments will wipe away a terrible stain from our history and, crucially, tender our deepest and profound apologies to those who have suffered.

I finish as I began by thanking the Minister and the entire Bill team for their hard work and collaboration. I commend these amendments to your Lordships.

Photo of Lord Lexden Lord Lexden Deputy Chairman of Committees, Deputy Speaker (Lords) 9:30 pm, 10th January 2022

My Lords, it is immensely gratifying to reach the end of a long, six-year campaign. At last, more gay people who in the past suffered cruel wrong under unjust military and civilian offences are about to be given the means of securing the redress they so greatly deserve. It has been extremely encouraging to receive so much support from all parts of the House, particularly from the noble Lord, Lord Ponsonby, on the Labour Front Bench and the noble Lord, Lord Paddick, on the Liberal Democrat Front Bench.

May I add briefly to the comments made by my fellow campaigner, the noble Lord, Lord Cashman? It was through amendments to earlier legislation, which I moved in December 2016, that the disregards and pardons scheme, in its existing, incomplete form, was brought into force in Northern Ireland with the consent of its devolved Executive and Assembly. The then Justice Minister in Northern Ireland, Claire Sugden, said at the time it was important to ensure that the criminal law in Northern Ireland offers equality of treatment to gay and bisexual men in Northern Ireland with England and Wales.

There can be no doubt that widespread support exists in Northern Ireland for the redress of past gay injustices, particularly among younger people, on whom the future of that wonderful part of our country depends. I am confident it will be strongly felt in Northern Ireland that its devolved Department of Justice should use the powers it possesses under existing legislation to bring today’s amendments fully into force in the Province when they become law here very shortly. That would be particularly appropriate this year, which marks the 40th anniversary of the initial decriminalisation of homosexuality in Northern Ireland, following the triumph of my friend Jeffrey Dudgeon in the European Court of Human Rights, which forced the Thatcher Government to take action in 1982.

The Minister signed my amendments back in 2016. I hope she will endorse my comments today. It cannot be right to have a border down the Irish Sea in respect of human rights.

Photo of Baroness Bennett of Manor Castle Baroness Bennett of Manor Castle Green

My Lords, I rise as I did in Committee to speak briefly and humbly on behalf of my noble friend Lady Jones of Moulsecoomb, who signed the matching amendments in Committee. I can only pay very strong tributes to the noble Lords, Lord Cashman and Lord Lexden, for all their long work on these issues. The Green group, of course, welcomes these amendments. I would like to thank the Minister for her helpful letter that addressed the questions I raised in Committee about why it is not possible to automatically get rid of these offences to clear people of them.

In the light of that, I would simply like to prompt the Minister—though I realise it is early—for whatever information she might be able to give us both about what plans there are to publicise this legal change to make sure people are able to easily and simply apply and about what kind of timeframe for the process she sees going forwards. As has been said, many people affected by this may be of an older age group, and it is really important this is available to people as soon as possible.

Photo of Lord Paddick Lord Paddick Liberal Democrat Lords Spokesperson (Home Affairs)

My Lords, at last, much credit must go to the noble Lords, Lord Lexden and Lord Cashman, and to Professor Paul Johnson, but also to the Minister, who accepted the challenge from the noble Lords and ran with it. I understand the right honourable Priti Patel took little persuasion. Whether that is the Minister being modest or not, I have nothing but thanks and praise for all those involved.

Photo of Lord Ponsonby of Shulbrede Lord Ponsonby of Shulbrede Shadow Spokesperson (Justice), Shadow Spokesperson (Home Affairs)

My Lords, I feel privileged to come in at the tail-end of this six-year campaign. I have to say I found it very moving listening to my noble friend Lord Cashman and the noble Lord, Lord Lexden, who does me the privilege of taking an interest in my family history. I have followed his campaign on this matter as well. I also note the points he made about the position in Northern Ireland. It has been a six-year campaign—to use the words of my noble friend—to wipe away the stain on history. It seems to me these amendments are doing this. I also join in the praises from the noble Lord, Lord Paddick, of the Minister, who appears to me, as a latecomer to this, to have been with the campaigners every step of the way.

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department

My Lords, I thank all noble Lords for their kind comments. It is lovely when unity breaks out in this House, particularly when that unity has been hard fought. On the union—I take my noble friend’s points about Northern Ireland—I will certainly relay those comments to the Minister for Justice. I would imagine that the publicity will start on commencement of the Bill and be published on GOV.UK. There has already been some great publicity on social media and elsewhere, so publicity is already under way.

Amendment 97ZB agreed.