Police, Crime, Sentencing and Courts Bill

Debate between Lord Lexden and Lord Cashman

Lords Hansard - part two & Committee stage
Wednesday 17th November 2021 Lords Chamber

[Lord Cashman (Non-Afl)]

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 In 2012 the scheme was introduced to enable those living with a caution or conviction for a now-repealed homosexual offence to have that caution or conviction disregarded.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 The amendments before your Lordships would cover, for instance, now-repealed criminal offences such as the offence of solicitation by men, which was used to entrap gay and bisexual men, sometimes for doing nothing more than chatting up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 The amendments would also cover the offences in the repealed service discipline Acts, which were once used to prosecute and punish consensual same-sex relationships.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.

[Lord Lexden (Con)]

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.

Civil Partnerships, Marriages and Deaths (Registration Etc.) Bill

Debate between Lord Lexden and Lord Cashman

Committee: 1st sitting (Hansard): House of Lords
Friday 1st February 2019 Lords Chamber

[Lord Cashman (Lab)]

My Lords, I refer to my interests as recorded in the register. I too will speak to Amendment 1. I thank the noble Baroness, Lady Hodgson, for introducing her amendments. I am particularly concerned by the Delegated Powers and Regulatory Reform Committee’s report, and its reference to the Bill conferring,

“no fewer than four Henry VIII powers”.

It also refers to the contribution made by the Minister in our previous debate.

Like the noble Baroness, Lady Barker, I fully welcome the extension of civil partnerships and will do all I can to bring that about, but I am worried. The regulations have the power to do good, but also to undo the good that has been done. Proposed new subsections (1) and (2) are absolutely right because subsection (2) contains a sunset provision—a time limit on when the Secretary of State might lay regulations. However, I am concerned about proposed new subsection (3), by which the Secretary of State may, by regulations,

“make any other provision that appears to the Secretary of State to be appropriate”.

That is far too widely drawn. If we are to go down that route, I would like a time limit on when they can be implemented. Similarly, proposed new subsection (6) says:

“Before making regulations under subsection (5), the Secretary of State must consult such persons as the Secretary of State considers appropriate”.


That seems wholly wrong. Instead of widening consultation it could limit it. Therefore, I have concerns about that.

I will not detain the Committee much further, but I must refer to proposed new subsection (7). On all of these I look forward to the Minister’s reassurances on the use of such regulations. Excuse me—the noble Baroness, Lady Hodgson, seems to have great powers of projection; her cold seems to be catching. However, he says, taking a very deep breath, the subsection says:

“The Secretary of State may, by regulations, make any provision that the Secretary of State considers appropriate in order to protect the ability to act in accordance with religious belief in relation to civil partnership”.


The making of “any provision” is far too wide. I would like to see that qualified. Perhaps the noble Baroness, Lady Hodgson, could indicate what actions would need to be taken to protect the ability to act in accordance with religious belief, since I remain to be convinced that such a subsection is necessary.

[Lord Lexden (Con)]

My Lords, I say to the noble Baroness, Lady Barker—my friend in many contexts, but not in that of sibling couples and civil partnerships—that I would be pleasantly astonished if my noble friend failed to give her the reassurances she sought. It is clear that the Government have no intention of extending civil partnerships in the way I would wish. I set out at length at Second Reading the unfairness and injustice sibling couples who are committed to each other in strong, stable and platonic associations have endured for far too long because they are denied civil partnerships. I will not repeat the points I made then. I should be very interested to hear what my noble friend has to say, but I do not expect the pleasant surprise I wish for.

I have not tabled amendments to this important Bill that would cause proceedings on it to be extended. I simply say this to the Government, assuming that I am right: committed, platonic sibling couples, some of whom have shared their lives for 50 years and more, look on with astonishment and anger as a political party that ought to value the family units they have created together does nothing to relieve them from the constant anxieties they endure in the absence of joint legal rights.

--- Later in debate ---

[Lord Lexden]

My Lords, I shall be very brief. The case for change has been powerfully outlined by my noble friend Lord Hayward, and endorsed by my very great friend on this issue, the noble Lord, Lord Hayward. This is a day of muddle and confusion. I mean the noble Lord, Lord Cashman. How could I make such a fundamental mistake? I align myself with their comments and repeat what has been a theme of so many comments: this could be the moment when the Government associate themselves firmly with the proposition, which many have been waiting a long time to see adopted, that human rights must extend fully and consistently throughout the length and breadth of our land. Was that not the noble aim of the Human Rights Act 1998?

[Lord Cashman]

My Lords, if noble Lords will allow me, there is a wonderful song, which I think is from “Cabaret”, called “Mr Cellophane”. I feel like the noble Lord, Lord Cellophane—“they look right through you”. It was remiss of me in my contribution not to specifically mention the professor the noble Lord, Lord Lexden, and I worked with on trying to bring forward a Bill on this very subject. It was of course Professor Paul Johnson of the University of York.

Policing and Crime Bill

Debate between Lord Lexden and Lord Cashman

Report: 3rd sitting (Hansard): House of Lords
Monday 12th December 2016 Lords Chamber

[Lord Lexden (Con)]

My Lords, I will speak to the amendments in this group in my name and the names of my noble friend Lady Williams of Trafford and the noble Lord, Lord Cashman. The support of my noble friend the Minister signifies that these amendments have been accepted by the Government, and I thank her for all that she and her officials have done to bring about their acceptance. I am indebted to my noble friend for her constant understanding and kindness.

I am also delighted to have the support of the noble Lord, Lord Cashman, a strong and constant ally in helping to secure the benefits that gay people in Northern Ireland will obtain as a result of our amendments. His work has been widely noted and appreciated by those who campaigned tenaciously to achieve in the Province all the rights that gay people enjoy elsewhere in our country. The need for equality throughout the United Kingdom on this issue of human rights was strongly supported in Committee by the noble Lord, Lord Kennedy of Southwark, from the Opposition Front Bench, and I thank him most warmly.

This Bill now incorporates amendments proposed in Committee by the noble Lord, Lord Sharkey, and accepted by your Lordships’ House. They will have the effect of making available in England and Wales pardons to those who were cautioned or convicted under cruel and discriminatory laws, now repealed, that bore so heavily and so unfairly for so long on homosexual and bisexual men. They will make reparation, to the extent that it is possible and practicable, to those still living and remove a terrible stain from the reputations of those who are no longer alive, for the comfort of their families.

Naturally, gay people in Northern Ireland felt that their part of our country should not be excluded from such an important measure of belated justice. I was glad to act as their representative and spokesman in Committee by bringing forward amendments designed to extend to Northern Ireland what has now been agreed for England and Wales. I had the great good fortune to be able to draw on the wide legal knowledge and accomplished drafting skills of Professor Paul Johnson of York University, who produced the amendments discussed in Committee. It is his work, refined and extended by leading officials of the Home Office, that will now confer on gay people in Northern Ireland the equal rights arising from this major reform, which they want and deserve.

Laws are not now normally enacted at Westminster, in this and many other areas of policy that have been devolved to Northern Ireland, without the approval of its Assembly, expressed through the adoption of a legislative consent Motion. In Committee, I referred to the strong hope that such a Motion would be passed by the Assembly, and it was duly passed on 28 November. Its smooth passage, preceded by the rapid and successful completion of discussions in the Northern Ireland Executive, owes much to the new, young Minister of Justice in Northern Ireland, Claire Sugden.

My gay friends in Northern Ireland detect a more relaxed, modern and progressive mood among young people in particular. The Minister gave expression to it at Stormont last week when she said that,

“giving permission for Westminster to pass these provisions for Northern Ireland offers an immediate opportunity for the criminal justice system … to right the wrongs of the past”.

She went on to stress the need to,

“ensure that the criminal law in Northern Ireland offers equality of treatment for gay and bisexual men in Northern Ireland, as it would do in England and Wales”.

These are most encouraging and heartening words.

The noble Lord, Lord Sharkey, paved the way for the granting of pardons for offences that should never have defaced the statute book in England and Wales by securing the creation, in 2012, of what is known as a disregard scheme, under which application can be made to have such offences wiped from the record. These amendments will authorise the introduction of such a disregard scheme in Northern Ireland. Individuals will be able to apply to the Justice Department to have their convictions for discredited former offences disregarded on criminal records. All successful applications will be followed automatically by the granting of pardons. Automatic pardons will also be given in posthumous cases.

Very importantly, the amendments confer power on the Northern Ireland Justice Department to add further discredited offences to the disregard scheme by means of regulations. Similar provision is to be made for England and Wales under amendments in this group to be moved by my ally, the noble Lord, Lord Cashman.

The arrangements to be introduced in Northern Ireland under these amendments will differ from those in England and Wales, at least initially, in one respect: disregards and pardons will be available for past offences committed by those who were at the time at least 17 years of age, not 16 as in England and Wales. This is because until recently Northern Ireland had 17 as its age of consent. Claire Sugden made plain that she is very open to further discussion of this point in the Northern Ireland Assembly.

I have one further matter to raise relating to Clause 148(4), which provides that posthumous pardons will be made available to those convicted of certain abolished offences under service law. As it stands, however, Clause 148(4) makes posthumous pardons available only to those convicted as far back as the Naval Discipline Act 1866. This is inadequate because, like the equivalent civil law provisions that extend back nearly five centuries to the Henrician statute of 1533, service law criminalised consensual same-sex sexual acts between members of the Armed Forces long before 1866. Between now and Third Reading the Government may wish to consider incorporating these earlier provisions, and equivalent ones in respect of the Army, into Clause 148(4) to ensure that those convicted of service disciplinary offences prior to 1866 are eligible to receive a posthumous pardon in the same way as those convicted after that date. This point has been brought to our attention by the omniscient Professor Johnson.

I conclude with the words of Councillor Jeffrey Dudgeon, whose case at the European Court of Human Rights in 1981 led to the decriminalising of homosexuality in Northern Ireland. He has said that these amendments,

“will right a wrong for a small but very significant group of living people, and also bring satisfaction and comfort to a greater number of relatives and friends of those who died with their reputations scarred by cruel convictions”.

I beg to move.

[Lord Cashman (Lab)]

My Lords, I am extremely pleased to speak to the amendments by the noble Lord, Lord Lexden, to which I have proudly added my name, and to the other amendments in this group in my name and that of the noble Baroness, Lady Williams.

My ally, the noble Lord, Lord Lexden, has put the case eloquently and exhaustively for these measures of pardon and disregards to be extended to Northern Ireland, ensuring that the wrongs so often visited upon gay and bisexual men can now be righted, atoned for and, indeed, corrected. He is right to quote Councillor Jeffrey Dudgeon, who, along with so many others, has shown courage and leadership in fighting for LGBT equality in Northern Ireland and elsewhere, as indeed has the noble Lord. I congratulate him on the work that he has carried out exhaustively and with fortitude. I, too, record my thanks to Professor Paul Johnson of York University, who has been invaluable in shaping our approach, and who, with Paul Twocock at Stonewall, has guided me with patience and great wisdom.

I hope noble Lords will allow me a short moment of reflection. When I campaigned against Section 28 of the Local Government Act in 1988 and subsequently co-founded and chaired Stonewall from 1989, I never imagined that we would achieve equality for LGBT people in my lifetime, nor that I would be in your Lordships’ House to bring together arguably the last pieces of the legislative jigsaw of legal equality for lesbian, gay and bisexual people. I know that we still have much more to do for the trans community, and we will. Yet I remind myself that what we achieve now is not achieved by us but was made possible by a thousand generations of LGBT people and our heterosexual allies who stood up and fought for equality, often giving up their livelihoods, their freedom and, in some instances, their lives. Moments like these make me feel truly humbled as I recognise their sacrifices over hundreds of years.

In Committee, I moved an amendment to include an offence that was missed from the disregard scheme set up to allow gay and bisexual men who were unjustly convicted under old sexual offences laws to have that crime wiped from their criminal record. The offence, Section 32 of the Sexual Offences Act 1956, titled “Solicitation by men”, also referred to importuning for immoral purposes and was used right up until repeal in 2003 to arrest men for the simple act of chatting one another up in the street or suggesting that they should return to their home. Arrests were often made in police stings, where plain-clothes police officers encouraged gay or bisexual men to approach them. It was a key tool used by the police and the criminal justice system to create the climate of fear that hung over gay and bisexual men trying to meet each other right up to the early 1990s.

Currently, men convicted under this Section 32 offence cannot have their offence deleted, so they still face having it registered whenever they have a criminal records check made for employment, volunteering or other purposes. When I spoke to this in Committee, the Minister responded to my proposal in an open and positive way, and I am pleased to say that through discussion with her and officials we have developed an holistic approach that not only ensures that safeguarding can be watertight but gives us an opportunity to include other offences that may have been used imaginatively and perniciously in the past to unjustly prosecute gay and bisexual men.

My amendment gives the Home Secretary the ability to lay down regulations, subject to affirmative action, to amend the Protection of Freedoms Act 2012 to add in additional offences to the disregard scheme where it is shown that they were used in a persecutory way to regulate the lives and activities of gay and bisexual men in the past. We are taking this approach for two very good reasons.

First, Home Office officials will now need more time to do due diligence on the case law related to the Section 32 “Solicitation by men” offence to ensure that when it is included in the scheme convictions under the offence that would still be illegal today it cannot be open to being deleted from the record. Although there is plenty of evidence and case law demonstrating how Section 32 was used unjustly against gay men in particular, it had a wider scope and it is important that we ensure that anything that remains illegal today is excluded from the disregard scheme.

Secondly, there is also evidence that other more general offences were used to catch and prosecute gay and bisexual men, such as meeting up, kissing in public and other activities that would be totally legal today. The approach in the amendment will give Home Office officials the scope to investigate these other offences, and as evidence of unfair prosecutions arise the Home Secretary can extend the scope of the disregard scheme to ensure that every gay and bisexual man unjustly convicted in the past can have their criminal record deleted.

My amendment will also ensure that any regulation that provides for people still alive to have their offence deleted will also extend the pardon to people who are no longer alive. I am extremely pleased that the Minister is co-sponsoring this important amendment and consequential amendments. Although people who are still alive will still need to make an application to have their offence disregarded so that it can be checked against the conditions and then physically removed from the criminal record, the effect of a disregard is much more powerful than a pardon. In supporting the amendment I believe that the Government have the opportunity to send a message to the LGBT community in particular that the disregard scheme and the automatic pardon for people who have since died are all about atoning for the actions of past Governments. It is in effect an apology and a sincere attempt to right the wrongs of the past.

It also gives us the very important opportunity to raise awareness of the disregard scheme with people who could benefit from applying to have their old conviction or caution deleted from the record. I hope the Government will work with the LGBT media, Stonewall and other organisations to send the message out about who can benefit from applying and to make sure that the process is as straightforward as possible.

Taking the lead from the noble Lord, Lord Lexden, I wish to thank others who have contributed so valiantly to these amendments and to the cause of equality: the noble Lord, Lord Sharkey, other noble Lords, and my noble friend Lord Kennedy for his comments in Committee. More importantly, a lesson I learned at a very early age is the importance of saying thank you where it matters most. I want to close by thanking the noble Baroness, Lady Williams, personally for the work that she and her officials have put into the amendment. This is an opportunity to do that which is just, right and necessary; and I am proud that we are so doing.

Policing and Crime Bill

Debate between Lord Lexden and Lord Cashman

Committee: 4th sitting (Hansard - part two): House of Lords
Wednesday 9th November 2016 Lords Chamber

[Lord Lexden (Con)]

My Lords, it is a pleasure and, indeed, an honour to support the amendments tabled by my noble friend Lord Sharkey. They represent the culmination of work done over several years by my noble friend to secure as much redress as is practicable for victims of grave injustice, including those who are no longer alive—gay men who suffered great wrong simply for giving expression to the love that for far too long dared not speak its name but has thankfully found its full and authentic voice in our times. My noble friend kept the issue before successive Ministers and their officials. It is in part due to the polite but enduring pressure that he applied that commitment to action was included in the Conservative Party manifesto at the last general election. As my noble friend Lady Williams of Trafford has already made clear, these amendments will be accepted by the Government. It is a day of great importance for gay people, a view shared by my noble friend Lord Black of Brentwood, who has also put his name to these amendments but has had to leave the Chamber.

I turn to Amendments 214H to 214L, 235A and 239C in my name. My amendments have two aims. The first is to extend the pardons for iniquitous former offences, now abolished, that will be available to living and deceased persons in England and Wales to their counterparts in Northern Ireland. The second aim is to extend the disregard scheme now in operation in England and Wales to Northern Ireland, where at present it does not exist. The first of the amendments relating to pardons, Amendment 214H, includes provision for legislation that is specific to Northern Ireland. Through this amendment and the two that follow, pardons could be granted in the same manner as in England and Wales.

Because there is no disregard scheme, the foundation on which pardons will rest in Northern Ireland, Amendment 214L, is vital. It will insert a new clause in the Bill that would make a number of amendments to the Protection of Freedoms Act 2012, changing the scope of Chapter 4 of Part 5. As a result, application could be made to the Secretary of State for Northern Ireland to have a conviction or caution in respect of an abolished offence in Northern Ireland disregarded. Since justice and policing are now transferred matters in Northern Ireland, the responsibility for designing and implementing a disregard scheme would in practice be expected to rest with the Northern Ireland Executive. Exactly how the system would work may need further consideration; it must clearly be fully acceptable in all its details to the Executive.

The impetus for the extension to Northern Ireland of the arrangements proposed in England and Wales has come from Northern Ireland itself. I am merely the spokesman and agent of courageous campaigners for full gay rights in the Province who are working to achieve complete equality with the rest of the UK. No one has done more to create support for the amendments I have put forward than Councillor Jeffrey Dudgeon MBE, who in 1981 paved the way for the decriminalisation of homosexuality in Northern Ireland through a successful case at the European Court of Human Rights.

The five main parties in the Northern Ireland Assembly have all pledged support for the principles embodied in the amendments. I am in the fortunate position of being able to tell your Lordships’ House that yesterday the Minister of Justice in Northern Ireland, Claire Sugden, announced that a legislative consent Motion would shortly be introduced in the Assembly enabling these amendments, after any revision that may be needed, to become law in Northern Ireland.

[Lord Cashman (Lab)]

My Lords, I support the amendments from the noble Lord, Lord Lexden, extending the provisions to Northern Ireland, and I shall speak to the amendments in my name. I congratulate the noble Lord on the success he has had with these amendments in relation to the announcement from the Justice Minister Claire Sugden. The noble Lord’s record on seeking to achieve equal rights in Northern Ireland, not least on equal access to marriage, is unblemished and should be celebrated because at its very heart is the concept that we should have equality and access to equal rights across the United Kingdom, not based on where we live.

I will quote from two organisations in Northern Ireland. A Northern Ireland-based LGBT organisation replied to the announcement that the measure would go before the Northern Ireland Assembly by saying:

“This is the first time that the Northern Ireland Assembly has made positive moves in respect of LGB&T legislation and we are hopeful that with cross-party support the pardons will be applicable to convictions made against … men living in Northern Ireland”.

I also join the noble Lord in celebrating the work and success of LGBT people and their allies and NGOs in Northern Ireland. Quite rightly, this is their success; and not the least of them is Councillor Jeff Dudgeon MBE, who has been a pioneer, affecting so positively the lives of so many across the United Kingdom and beyond.

Before I speak specifically to my two amendments—214S and 214R—I need to pay tribute to the noble Lord, Lord Sharkey, for his exemplary work over the years in pressing the case for equality, even when some have not wanted to listen to the arguments, noble and right though they are. My only difference with him on my amendments are on two major elements. My Amendment 214S differs from the amendment of the noble Lord, Lord Sharkey, and others in two key respects. First, it would grant a pardon to any person convicted of or cautioned for a now abolished offence, providing that they meet certain conditions, regardless of whether they are living or dead.

I disagree with the need to create two different systems for pardoning people in respect of these offences—one for the living and one for the dead. I cannot honestly see the logic of saying to a living person, “You must apply to have your conviction or caution disregarded to be eligible for a pardon,” while at the same time saying, “If you have died, you will get a pardon automatically”. That is not logical, and I am afraid that it appears to confuse the purpose of a pardon and the purpose of the disregard scheme. My amendment makes it abundantly clear that any person, subject to the specified conditions, who suffered a conviction or caution under these offences is pardoned. For those living with an historic conviction or caution, the disregard scheme is available to address any negative consequences caused by a police or other record.

The second way in which my amendment differs from that of the noble Lord, Lord Sharkey, and others, is that it would extend pardons to those convicted or cautioned under Section 32 of the Sexual Offences Act 1956 and its corresponding earlier provisions in the Vagrancy Act 1898. Let me be absolutely clear: this would not grant a pardon to any person convicted or cautioned for soliciting. My amendment makes it clear that anyone convicted or cautioned for any conduct that would now constitute the offence of soliciting under the Sexual Offences Act 2003 would not be pardoned; nor would a pardon extend to a person whose conviction or caution was the result of conduct involving any other person under 16. What my amendment would do is grant pardons for all those persons who were convicted or cautioned for what was once called “importuning for immoral purposes”. The immoral purposes, in many cases, amounted to nothing more, as the Home Office report Setting the Boundaries recognised in 2000, than one man chatting up another man. That report recommended the repeal of the offence, and that was carried through.

On a personal note, I lived through that campaign of hate and fear. I was a 16 year-old gay man when the age of consent was set at 21 and homosexual acts in private were decriminalised. I still had no protection as a young gay man who wanted to exercise his attraction and his love for others. I, too, suffered the threat of coming out of a bar or a pub in places such as Earl’s Court, where a lot of homosexual and bisexual men gathered. We felt safe together, but coming out of such a pub or a club and looking at another man and smiling at him could have possibly got me arrested for soliciting for an immoral purpose.