Police, Crime, Sentencing and Courts Bill

Lord Cashman Excerpts

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

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or was used in practice to regulate, sexual activity between persons of the same sex, and (b) either—(i) has been repealed or, in the case of an offence at common law, abolished, or(ii) has not been repealed or abolished but once covered sexual activity between persons of the same sex of a type which, or in circumstances which, would not amount to the offence on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 statement
The 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.

[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.

--- Later in debate ---

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.

[Lord Cashman (Non-Afl)]

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.