I beg to move amendment No. 327, in
clause 134, page 73, line 36, at end insert—
'(11) An Order in Council under section 85 of the Northern Ireland Act 1998 (c.47) (provision dealing with certain reserved matters) which contains a statement that it is made only for purposes corresponding to those of Schedule (Procedure for ending notification requirements for abolished homosexual offences) to this Act—
(a) shall not be subject to subsections (3) to (9) of that section (affirmative resolution of both Houses of Parliament), but
(b) shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(12) In relation to any time when section 1 of the Northern Ireland Act 2000 (c.1) is in force (suspension of devolved government in Northern Ireland)—
(a) the reference in subsection (11) above to section 85 of the Northern Ireland Act 1998 (c.47) shall be read as a reference to paragraph 1 of the Schedule to the Northern Ireland Act 2000 (c.1) (legislation by Order in Council during suspension), and
(b) the reference in subsection (11)(a) above to subsections (3) to (9) of that section shall be read as a reference to paragraph 2 of that Schedule.'.
The amendment, the new clause and the new schedule deliver on a commitment made by Lord Falconer and Baroness Scotland following points made by Lord Thomas of Gresford and Baroness Walmsley, which were that the substantive law has changed, yet some people will still be subject to the requirement for notification and on the register for matters that are no longer offences. Do we want people still to be on the register when the action that they were convicted of that led to them being on the register is not something that we regard as criminal activity any more? I am referring to consensual sexual intercourse between adult males. We do not want them to be on the register because we no longer regard that activity as a criminal offence.
We need to have a procedure for removing people from the notification requirement in line with the substantive law. However, that is not as easy as looking through the computer database and striking
them off. In some cases, it was not necessary to distinguish between consensual and non-consensual activity. We do not want non-consensual activity not to be required to be continued to be notified, so we have had to consider matters on a case-by-case basis. The new schedule, the new clause and the amendment will set up a procedure. The Home Office will write to everyone and say that a new procedure has been set up. It will be proactive to that extent. If people want to stop being subject to the registration requirements and consider that they come within the provision, they can apply to the Home Secretary.
The Home Secretary will then cause inquiries to be made into whether or not the activity was non-consensual and whether it is no longer a criminal offence. He will then decide whether such people can stop being on the register. They will have a right of appeal against his decision. I have not explained matters in enormous detail. The application can be appealed to the High Court, but not thereafter. However, the aim of the provision is clear. The High Court would not be able to hear all evidence. We must bear it in mind that the issues involved will be delicate and we would not want to create a situation whereby people who had been engaged in sexual activity as the victim had to go through all the information. Such matters would be carried out in writing.
The idea is to respond to the concern of Lord Thomas and Baroness Walmsley to deliver on the promises made by Lord Falconer and Baroness Scotland and set up a workable and sensible procedure, which is up to date with the substantive law.
I welcome the Minister's words. My colleagues in the House of Lords will be pleased with the proposals that have been brought forward. The procedure sounds complicated and I do not wish to make any comments on it at this stage. However, I am sure that it will be considered carefully.
The Solicitor-General made the point well about the difficulty in distinguishing between consensual and non-consensual sex. I was convinced by the argument, but I was a little dismayed about some of the procedures people will have to go through. I thank the Government for their response.
I should like to mention the new clauses briefly. I raised this matter on Second Reading, as my right hon. and learned Friend the Solicitor-General will be aware. I am pleased with what has been done. Under the provision, there will not be huge numbers of cases dealt with. It will apply to a relatively small number of people who no longer need to be on the register because they are not a danger. The whole point of the register is to ensure that someone who is a danger, or will put other people at risk, is kept on it.
On reading the new schedule, I did not think that the procedure was so complicated. I understand why it is necessary for there to be such a procedure—it is for precisely the reasons my right hon. and learned Friend gave in introducing the debate. We cannot simply assume that someone should be removed. We must
ensure that we do not remove somebody from the register if they were put on it for a non-consensual act.
I was pleased by what my right hon. and learned Friend said about being proactive, so that people will be informed about removing themselves from the register and making an application. That is a positive part of dealing with such things. I thank her for what she said and for responding to the concerns that were raised in the House of Lords, and by me and other hon. Members on Second Reading.
Like my hon. Friend, I congratulate my right hon. and learned Friend the Solicitor-General on the proposals in the new clauses. I should like to ask a couple of brief questions.
First, I presume that there are no recent convictions leading to sentences that people are still serving and that there is nobody still in the pipeline, as it were, who needs to be cleared out. Secondly, it is theoretically possible that at the end of the process the identity of somebody who is being taken off the register might inadvertently become public knowledge. There would be a new injustice if a local newspaper or community suddenly became aware that somebody had been taken off the register. Although that may be good for that person, there may be a kind of no-smoke-without-fire situation and the individual may find themselves subject to suspicions in the local community. Perhaps the Solicitor-General could comment on the process relating to keeping such matters confidential, especially towards the final stages.
I add my welcome to the proposals. The Government have kept to the undertaking that they made.
I was slightly surprised by the ponderous nature of the procedure to be gone through. It would useful to know whether the Solicitor-General thinks that in reality there would be a great problem.
I accept that certain offences would cover both non-consensual and consensual activities, but I would have hoped at least that the record of conviction made it clear, without too much difficulty, into which category such offences fell. If that might cause a major problem, it would be helpful to hear about it from the Solicitor-General. Frankly, I would be surprised if that were so, because the courts have always made a clear differentiation between those two things, both in sentencing remarks and in the sentences that are passed.
I do not think that it would be difficult to find out. It would be possible and necessary to find out. The procedure is not at all complex; it is very simple and straightforward and it starts with proaction. However, there has to be a procedure because there has to be a case-by-case examination. The person will simply receive a letter setting out the new procedure and the Home Office will issue a simple application form, which the person will sign to make the application. It will be clear where it is to be sent. Then there will be a confidential check-up to look at the sources of information and to make sure that the offence was not non-consensual. It will
not be difficult to find that out. Any removal from the register will be confidential. There is no intention to publicise; it would be wrong to do so.
I pay tribute to my hon. Friend the Member for Walthamstow (Mr. Gerrard), who raised the issue in the House. We are delivering.
Some 150 to 300 people might fall into that category. My hon. Friend the Member for Rhondda (Mr. Bryant) raised the question of whether there might be people in the pipeline—people who are in prison, or who are going to prison, for offences that would be decriminalised under the Bill. In practice—and it is an informal process—once the police and the prosecutors anticipate that a criminal activity is, with all-party agreement, about to become a non-criminal activity, somehow it becomes in the public interest not to prosecute. The criminal justice system anticipates where we are going. Without jumping the gun or doing anything wrong, it has to decide which cases to prosecute and which not to prosecute. The system would be unlikely to prosecute an offence that was to be decriminalised because it would not be in the public interest.
My right hon. and learned friend is very helpful, but it sounds as though she is saying, ''I think that'' and ''I suspect that'' and is not sure whether people might fall into such categories. My own attempts at research to find out whether there have been in any such cases over the past two years suggest that there have been. However, perhaps she has further information.