Policing and Crime Bill

Lord Cashman Excerpts

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.

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[Baroness Williams of Trafford]

My Lords, I am pleased to be able, on behalf of the Government, to warmly welcome Amendments 214E, 214F, 214G, 239A and 246, and I congratulate the noble Lord, Lord Sharkey, on bringing them forward, as well as the noble Lord, Lord Cashman, who spoke so movingly.

As the noble Lord, Lord Sharkey, explained, these amendments broadly do two things. First, they confer an automatic pardon on deceased individuals convicted of certain consensual gay sexual offences that would not be offences today. Secondly, they confer a pardon on those persons still living who have a conviction for such an offence that has been disregarded under the terms of the Protection of Freedoms Act 2012. It is important to note that for the pardon to apply, the conduct in question must have been consensual and involved another person aged 16 or over, which is the current age of consent. The conduct must also not involve an offence of sexual activity in a public lavatory, which is still illegal today.

This historic step is momentous in righting wrongs suffered by thousands of gay and bisexual men. It is a tragedy that people were criminalised over a shamefully long time for something that society regards today as normal sexual activity. It is time to right the wrongs of the past and I am pleased to support the noble Lord, Lord Sharkey, in putting forward these amendments.

It is important that we link the pardons for the living to the disregard process so that the necessary checks can be carried out to identify whether the individual in question engaged in activity that constitutes an offence today. Since the disregard scheme under the Protection of Freedoms Act came into force, eight disregard applications that concerned non-consensual activity have been rejected. It is therefore crucial that a pardon for the living should only follow a successful disregard application. This mitigates the risk of individuals claiming to be cleared of offences that are still crimes today. It takes into account and protects the rights of victims and ensures that children and vulnerable people are safeguarded from potential risks. This is extremely important and an objective with which I am sure noble Lords would agree. It is for these reasons that the Government cannot commend to the Committee Amendment 214S in the name of the noble Lord, Lord Cashman.

The amendments in the name of my noble friend Lord Lexden seek to make corresponding provision for Northern Ireland. The Committee will be aware of the established convention that the UK Parliament legislates on devolved matters in Northern Ireland only with the consent of the Northern Ireland Assembly. Subject to observing that convention, the Government are ready to look favourably at amendments at a later stage of the Bill along the lines proposed by my noble friend.

I understand that on Monday of this week, the Ministry of Justice tabled an amendment to a legislative consent Motion before the Northern Ireland Assembly seeking its consent to the UK Parliament legislating on this matter. If the proposed legislative consent Motion can make sufficient progress over the next two to three weeks, I would anticipate that the Government will be able to work with my noble friend to come to an agreement before the Bill leaves this House. I should add that the Scottish Government have separately announced their intention to bring forward legislation in the Scottish Parliament.

I turn to Amendment 214R, which is again in the name of the noble Lord, Lord Cashman. The amendment seeks to extend the disregard scheme to include convictions for the soliciting offence in the now-repealed Section 32 of the Sexual Offences Act 1956. Under the current disregard scheme, for the now-repealed offences of buggery and gross indecency between men, it is a relatively straightforward matter to establish whether the relevant statutory conditions are met; namely that the other person involved in the conduct consented and was aged 16 or over, and the conduct would not now constitute the offence of sexual activity in a public lavatory. In contrast, the soliciting offence in Section 32 of the 1956 Act covered a broad range of behaviours and, as such, it is not a straightforward matter to formulate additional conditions to ensure that behaviour which would still constitute an offence today cannot be the subject of a disregard. It is likely that any such conditions would entail more than simply establishing facts—for example, whether the other person was aged 16 or over—and require a shift to making judgments as to whether an activity would be captured by a range of different offences today. This creates some practical challenges in accessing records in sufficient detail to make that judgment.

[Lord Cashman]

I have listened with great interest and have two points to make. First, a pardon does not remove a conviction from a record. The criminal activity remains on the record, so any employer making a heightened check can find what the conviction was for. I see no way in which, if we issued a pardon, it would put anyone at risk. Secondly, if there is a victim in any of these cases, and if we have managed to weed it out in the discharge process in relation to gross indecency and buggery, we should have the wit and wherewithal to approach this and find out how to apply exactly the same provisions and the same terms to the immoral purposes Section 32. Will the Minister commit at least to sitting down with me and the likes of Paul Johnson, from the University of York, and Stonewall, who have had great input into this, so that instead of protracting discussion of the problem, we can seek the solution?

[Baroness Williams of Trafford]

The noble Lord reminds me of a conversation that we had the other day. I quite happily undertake to meet him, Paul Johnson and other members of Stonewall to discuss this further. I was going on to say that, despite the challenges, I am ready to consider Amendment 214R further ahead of Report.

I conclude by congratulating the noble Lord, Lord Sharkey, but I also signal my happiness at finishing the work started by the coalition Government in recommending a pardon for Alan Turing. As a Mancunian, the situation he faced, and the fact that he ultimately took his own life, has saddened me for many years. Legislating in this Bill will speed up the delivery of a similar pardon for the thousands of gay and bisexual men convicted of now-abolished sexual offences. I look forward to the day—perhaps in a little over a month’s time—when this Bill is enacted and these provisions come into force. That will be a day we will all be able to celebrate. I commend the noble Lords’ amendments to the House.