Policing and Crime Bill

Lord Lexden Excerpts

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

[Baroness Williams of Trafford]

I intervene on the noble Lord to say that not only do the Government support this amendment, we strongly support it. I thought that might be helpful to the debate in Committee.

[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.

--- Later in debate ---

Tabled by

[Lord Lexden]

214H: After Clause 142, insert the following new Clause—
“Posthumous pardons for convictions etc of certain abolished offences: Northern Ireland
(1) A person who has been convicted of, or cautioned for, an offence specified in subsection (3) and who has died before this section comes into force is pardoned for the offence if two conditions are met.(2) Those conditions are that—(a) the other person involved in the conduct constituting the offence consented to it and was aged 16 or over, and(b) any such conduct at the time this section comes into force would not be an offence under section 75 of the Sexual Offences (Northern Ireland) Order 2008 (sexual activity in a public lavatory).(3) The offences to which subsection (1) applies are—(a) an offence under section 11 of the Criminal Law Amendment Act 1885 (gross indecency between men),(b) an offence under section 61 of the Offences against the Person Act 1861 (buggery),(c) an offence under either of the following provisions (which made provision similar to section 61 of the Offences against the Person Act 1861—(i) 10 Cha.1 Sess.2 c.20 (1634) (An Act for the punishment of the vice of Buggery);(ii) section 18 of 10 Geo. 4 c.34 (1829) (An Act for consolidating and amending the Statutes in Ireland relating to Offences against the Person), or(d) an offence under Article 19 of the Criminal Justice (Northern Ireland) Order 2003 (buggery).(4) The references in subsection (3) to offences under particular provisions are to be read as including offences under—(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, or(f) section 42 of the Naval Discipline Act 1957,which are such offences by virtue of the provisions mentioned in subsection (3).(5) The reference in subsection (2)(b) to an offence under section 75 of the Sexual Offences (Northern Ireland) Order 2008 is to be read as including a reference to an offence under section 42 of the Armed Forces Act 2006 which is such an offence by virtue of section 71 of the Sexual Offences Act 2003 (corresponding offence of “sexual activity in a public lavatory” in England and Wales).(6) The following provisions of section 101 of the Protection of Freedoms Act 2012 apply for the purposes of this section and section (Sections (Posthumous pardons for convictions etc of certain abolished offences: Northern Ireland)and (Other pardons for convictions etc of certain abolished offences: Northern Ireland): supplementary)(1) (so far as relating to this section) as they apply for the purposes of Chapter 4 of Part 5 of that Act—(a) in subsection (1), the definitions of “caution”, “conviction”, and “sentence” (and the related definition of “service disciplinary proceedings”);(b) subsections (2) and (5) to (7).”

[Lord Lexden]

My Lords, I am grateful for the support that has been expressed by—for this purpose—my noble friend Lord Cashman and my noble friend the Minister. I shall not press the amendments, with a view to returning to the matter on Report.

Amendment 214H not moved.

Policing and Crime Bill

Lord Lexden Excerpts

Committee: 5th sitting (Hansard): House of Lords
Wednesday 16th November 2016 Lords Chamber

[Lord Judge (CB)]

My Lords, I introduce what I want to say by suggesting that we need to question certainties that anybody advances in this debate. I went to, was well informed by and was deeply sympathetic to, the meeting arranged by the noble Lord, Lord Paddick, where we heard the overwhelmingly poignant stories of Mr Gambaccini, Lady Brittan and Sir Cliff Richard, and I thought, “That’s a certainty, isn’t it?”. But then I remembered an experience that I had when I was a young member of the Bar, of a client in the Midlands arrested for murder. If he was arrested, it meant that there were reasonable grounds for suspicion—and there were. It was quite a notorious case, and the publicity given to his arrest meant that two people came forward who were quite unconnected with him and were able to establish an alibi for him. Another man was subsequently convicted for the murder, so this man was totally innocent. If those people had not come forward, he would have remained in custody pending trial. They might have come forward by trial, but he would have been in custody for many months before his trial began—and, if they had come forward then, the argument would have been, “How can they be so sure that they were together or they saw him in this particular place on this particular night?”.

So there are certainties both ways. I want to contribute to the debate by making two separate and additional points to the ones that have been discussed—perhaps one to meet a point raised in discussion. It is said that rape and sexual crime is particularly awful, and there is usually plenty of other evidence when other crimes are concerned. Well, with murder, the allegation that a mother has killed her children is not the kind of allegation that can be trivialised. There are cases in which mothers alleged to have killed their children have not done so. Noble Lords are all familiar with the phrase “cot death”, although it summarises a much more complex idea. There the question is whether the children were murdered at all, or whether they died from natural causes. It is a terrible allegation to have to face. Do we say, “Ah, well, it does not matter if they have publicity”?

Then there is terrorism. Half the time with terrorism, if the police did not act before the bomb went off, on the knowledge that they have, we would be blown up. So terrorist offences usually consist of conspiracies and offences contrary to various terrorism Acts which never came to fruition. The whole case depends on demonstrating that there was going to be a bomb, or whatever, and it never happened. We have to be careful about the sorts of cases that we are thinking about. I suspect that causing death by dangerous driving is a dreadfully serious allegation to the public mind—and certainly, if it is said to be accompanied by drink, of course it is a dreadfully serious allegation, because it is a dreadfully serious crime.

I ask noble Lords to pause. I understand that sexual crime now seems to be at the forefront of public concern, but let us not just dismiss those other crimes as really not so important, so we do not really need to preserve the anonymity of the accused for them because it does not really matter so much. We need to have a clear principle about this. I think that we should have a principle that either says yes or no to publicity or anonymity at various different stages. But I do not, I regret to say, share the view that sexual crimes should be treated as entirely one-off, on their own, and separate.

There is one more point that I want to add to the discussion. We are working on the basis that the points made by the noble Lord, Lord Pannick, are drafting points—I do not share the criticism made of him. But drafting points matter in this context. Let us pause to consider what arrest means, if we are saying that “don’t disclose anonymity” stands on arrest but, once the charge happens, the anonymity goes. Pitch the time where you like—arrest means that there are reasonable grounds for suspicion. It means that you are incarcerated; it means that you have lost your liberty and that, lawfully, you have lost your liberty, and that it is justified because there are reasonable grounds for suspicion. I have concerns about a blanket prohibition imposing silence on the media in circumstances where somebody’s liberty has been taken from him or her, even if for a short time. That is not how we work in this country. We do not want people locked up for any time at all without anybody being able to say so. Those are considerations that I suggest should be added to the thought that we give to the issues in this debate.

[Lord Lexden (Con)]

My Lords, much gratitude is due to the noble Lords, Lord Paddick and Lord Campbell-Savours, for introducing and seconding this amendment, drawing on their long experience of work and reflection in relation to a very important issue. I shall return briefly to a question that has come up naturally in the course of our discussion—the simple question of whether the presumption of innocence until proved guilty is still in practical, effective existence where allegations of sexual abuse are concerned. Last week’s Henriques report showed that during Operation Midland innocent people were treated as if they were guilty, even though there was no serious evidence against them. A recent detailed study by the Oxford University Centre for Criminology concluded that there has been a cultural shift towards believing allegations of abuse and the presumption is now in favour of believing those who present themselves as victims. The study documents in great detail the immense harm done to very large numbers of ordinary, innocent people who had unfounded allegations made against them. In any walk of life, a person whose name appears publicly in relation to a mere allegation of abuse can expect to suffer much hardship. This wholly unsatisfactory state of affairs extends from state to Church, from the living to the dead.

As I have mentioned on previous occasions in your Lordships’ House, grave damage has been inflicted on the reputation of one of the greatest 20th century bishops of the Church of England, George Bell, after a completely secret and internal investigation of a single, uncorroborated complaint, made many decades after his death. At least the injustice done as a result of Operation Midland has been the subject of a thorough authoritative inquiry. In June, the Church announced an independent review of the case involving Bishop Bell. Four and a half months later, we still await the name of the review’s chairman and his or her terms of reference. There is no right reverend Prelate in the Chamber at the moment but I hope that these comments will be noted by the Lords Spiritual.

The authorities of Church as well as state must recognise that we need not just to halt but to reverse the trend that has eroded the presumption of innocence. We need another cultural shift, a decisive, morally responsible one that will stop the ruin of innocent lives and reputations. This amendment, I believe, would help us to achieve that shift.

Policing and Crime Bill

Lord Lexden Excerpts

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

Moved by

[Lord Lexden]

181C: Clause 148, page 168, line 9, at end insert—
“( ) Except in relation to service disciplinary proceedings, this section applies only in relation to persons convicted or cautioned in England and Wales.”

[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.

--- Later in debate ---

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I am so pleased to be able warmly to support the amendments proposed by the noble Lord, Lord Cashman, and my noble friend, Lord Lexden. I also acknowledge the spirit of very positive co-operation that has led to the amendments. I recognise that they will continue to strengthen the efforts made by this Government to tackle the historical wrongs suffered by gay and bisexual men in England and Wales—and now Northern Ireland—who were criminalised over a long period for something that something that society today regards as normal sexual activity.

I shall deal first with Amendments 181D, 181E and 181F, tabled by the noble Lord, Lord Cashman. As he explained, they will enable the Secretary of State to extend, by regulations, the list of offences eligible for a disregard under the provisions of the Protection of Freedoms Act 2012. The regulation-making power enables the necessary modifications to be made to Chapter 4 of Part 5 of the 2012 Act, and provides for corresponding provision for pardons to that contained in Clauses 148 and 149 of the Bill.

In Committee the noble Lord made the case for other offences being included in the disregard process, in particular the offence of solicitation by men which is in Section 32 of the Sexual Offences Act 1956. As I indicated at that time, the Government are broadly sympathetic to this, but we need more time to work through the implications of adding offences to the disregard scheme, and in particular the conditions that need to be satisfied before a conviction could be disregarded. In recognition of the fact that we should not rush that consideration, Amendment 181D enables the Home Secretary to add other abolished offences to the disregard scheme by regulations, subject to the affirmative procedure. It is important that, in taking this forward, we are able to distinguish between activities that are now no longer illegal and those that are still illegal. This amendment also gives us scope to consider what other offences may be appropriate for inclusion, so it is to be welcomed as a signal of our continued commitment to address these historical wrongs.

As my noble friend Lord Lexden explained, the amendments in his name introduce a comparable disregard scheme in Northern Ireland to match that already in operation in England and Wales. They also introduce the same approach to statutory pardons as that contained in Clauses 148 to 150 of the Bill.

As I indicated in Committee, as these provisions relate to transferred matters in Northern Ireland, it is right that this House should respect the usual convention that the UK Parliament legislates in respect of such matters only with the consent of the Northern Ireland Assembly. I am pleased to say that the Assembly adopted the necessary legislative consent Motion on 28 November.

My noble friend Lord Lexden pointed out the important difference in the Northern Ireland disregard scheme; I thank him for explaining it to the House so that I shall not have to go through it again. I am pleased that we have been able to work fruitfully with the noble Lord, Lord Cashman, and with my noble friend, and I commend their amendments to the House.

My noble friend Lord Lexden pointed out an apparent contrast in the approach taken in Clause 148 as between civilian and service offences. That clause confers posthumous pardons for convictions for buggery and certain other abolished offences tried in the civilian courts, which date back to the Henry VIII statute of 1533—whereas posthumous pardons for convictions for the equivalent offences under service law reach back only to 1866. My noble friend said that it was in fact the Navy Act 1661 which first criminalised buggery in the Armed Forces. While the intention behind Clause 148(4) is to capture only relevant service offences that could have been prosecuted in either civilian or service courts, my noble friend may have alighted on a very valid point. I therefore undertake to consider this matter further with a view to bringing back a suitable amendment at Third Reading.

[Lord Lexden]

My Lords, I must express most grateful thanks to all noble Lords who have taken part in the debate. Those who will benefit from these measures in Northern Ireland will derive great satisfaction from this part of our proceedings today. There is, as the noble Lord, Lord Kennedy of Southwark, emphasised, more to be done—but these measures will, I think, assist the new pattern of more tolerant, inclusive and peaceful life that is evolving in this important part of our country.

Amendment 181C agreed.

--- Later in debate ---

Moved by

[Lord Lexden]

181G: After Clause 150, insert the following new Clause—
“Disregarding certain convictions etc for abolished offences: Northern Ireland
(1) After Chapter 4 of Part 5 of the Protection of Freedoms Act 2012 (disregarding certain convictions for buggery etc) insert—“CHAPTER 5DISREGARDING CERTAIN CONVICTIONS FOR BUGGERY ETC: NORTHERN IRELANDGeneral101A Power of Department of Justice to disregard certain convictions or cautions (1) A person who has in Northern Ireland been convicted of, or cautioned for, an offence under—(a) Article 19 of the Criminal Justice (Northern Ireland) Order 2003 (S.I. 2003/1247 (N.I. 13)) (buggery),(b) Article 7 of the Homosexual Offences (Northern Ireland) Order 1982 (S.I. 1982/1536 (N.I. 19)) (procuring others to commit homosexual acts),(c) section 61 of the Offences against the Person Act 1861 (buggery), or(d) section 11 of the Criminal Law Amendment Act 1885 (indecent acts between men),may apply to the Department of Justice in Northern Ireland for the conviction or caution to become a disregarded conviction or caution.(2) A conviction or caution becomes a disregarded conviction or caution when conditions A and B are met.(3) In relation to an offence under Article 7 of the Homosexual Offences (Northern Ireland) Order 1982, Condition A is that the Department of Justice in Northern Ireland decides that it appears that—(a) the conduct procured was conduct involving persons who consented to it and were aged 17 or over (whether or not that conduct occurred), and(b) the conduct procured would not now be an offence under Article 75 of the Sexual Offences (Northern Ireland) Order 2008 (S.I. 2008/1769 (N.I. 2)) (sexual activity in a public lavatory).(4) In relation to any other offence mentioned in subsection (1), Condition A is that the Department of Justice in Northern Ireland decides that it appears that—(a) the other person involved in the conduct constituting the offence consented to it and was aged 17 or over, and(b) any such conduct now would not be an offence under Article 75 of the Sexual Offences (Northern Ireland) Order 2008 (S.I. 2008/1769 (N.I. 2)).(5) Condition B is that—(a) the Department of Justice in Northern Ireland has given notice of the decision to the applicant under section 101C(4)(b), and(b) the period of 14 days beginning with the day on which the notice was given has ended.(6) Sections 101D to 101G explain the effect of a conviction or caution becoming a disregarded conviction or caution.101B Applications to the Department of Justice(1) An application under section 101A must be in writing.(2) It must state—(a) the name, address and date of birth of the applicant,(b) the name and address of the applicant at the time of the conviction or caution,(c) so far as known to the applicant, the time when and the place where the conviction was made or the caution given and, for a conviction, the case number, and(d) such other information as the Department of Justice in Northern Ireland may require.(3) It may include representations by the applicant or written evidence about the matters mentioned in condition A in section 101A.101C Procedure for decisions by the Department of Justice(1) In considering whether to make a decision of the kind mentioned in condition A in section 101A, the Department of Justice in Northern Ireland must, in particular, consider— (a) any representations or evidence included in the application, and(b) any available record of the investigation of the offence and of any proceedings relating to it that the Department of Justice in Northern Ireland considers to be relevant.(2) The Department of Justice in Northern Ireland may not hold an oral hearing for the purpose of deciding whether to make a decision of the kind mentioned in condition A in section 101A.(3) Subsection (4) applies if the Department of Justice in Northern Ireland—(a) decides that it appears as mentioned in condition A in section 101A, or(b) makes a different decision in relation to the matters mentioned in that condition.(4) The Department of Justice in Northern Ireland must—(a) record the decision in writing, and(b) give notice of it to the applicant.Effect of disregard101D Effect of disregard on police and other records(1) The Department of Justice in Northern Ireland must by notice direct the relevant data controller to delete details, contained in relevant official records, of a disregarded conviction or caution.(2) A notice under subsection (1) may be given at any time after condition A in section 101A is met but no deletion may have effect before condition B in that section is met.(3) Subject to that, the relevant data controller must delete the details as soon as reasonably practicable.(4) Having done so, the relevant data controller must give notice to the person who has the disregarded conviction or caution that the details of it have been deleted.(5) In this section—“delete”, in relation to such relevant official records as may be prescribed, means record with the details of the conviction or caution concerned—(a) the fact that it is a disregarded conviction or caution, and(b) the effect of it being such a conviction or caution,“the general names database” means the names database held by the Secretary of State for the use of constables,“the Northern Ireland names database” means the names database maintained by the Department of Justice in Northern Ireland for the purpose of recording convictions and cautions,“official records” means records containing information about persons convicted of, or cautioned for, offences and kept by any court, police force, government department or local or other public authority in Northern Ireland for the purposes of its functions,“prescribed” means prescribed by order of the Department of Justice in Northern Ireland,“relevant data controller” means—(a) in relation to the general names database or the Northern Ireland names database, the Chief Constable of the Police Service of Northern Ireland,(b) in relation to other relevant official records, such persons as may be prescribed,“relevant official records” means—(a) the general names database,(b) the Northern Ireland names database, and(c) such other official records as may be prescribed. (6) An order under this section may make different provision for different purposes.(7) Any power to make an order under this section is exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12)).(8) A statutory rule containing an order under this section is subject to negative resolution (within the meaning of section 41(6) of the Interpretation Act (Northern Ireland) 1954 (c. 33 (N.I))).101E Effect of disregard for disclosure and other purposes(1) A person who has a disregarded conviction or caution is to be treated for all purposes in law as if the person has not—(a) committed the offence,(b) been charged with, or prosecuted for, the offence,(c) been convicted of the offence,(d) been sentenced for the offence, or(e) been cautioned for the offence.(2) In particular—(a) no evidence is to be admissible in any proceedings before a judicial authority exercising its jurisdiction or functions in Northern Ireland to prove that the person has done, or undergone, anything within subsection (1)(a) to (e), and(b) the person is not, in any such proceedings, to be asked (and, if asked, is not to be required to answer) any question relating to the person’s past which cannot be answered without acknowledging or referring to the conviction or caution or any circumstances ancillary to it.(3) Where a question is put to a person, other than in such proceedings, seeking information with respect to the previous convictions, cautions, offences, conduct or circumstances of any person—(a) the question is to be treated as not relating to any disregarded conviction or caution, or any circumstances ancillary to it (and the answer to the question may be framed accordingly), and(b) the person questioned is not to be subjected to any liability or otherwise prejudiced in law by reason of any failure to acknowledge or disclose that conviction or caution or any circumstances ancillary to it in answering the question.(4) Any obligation imposed on any person by any enactment or rule of law or by the provisions of any agreement or arrangement to disclose any matters to any other person is not to extend to requiring the disclosure of a disregarded conviction or caution or any circumstances ancillary to it.(5) A disregarded conviction or caution, or any circumstances ancillary to it, is not a proper ground for—(a) dismissing or excluding a person from any office, profession, occupation or employment, or(b) prejudicing the person in any way in any office, profession, occupation or employment.(6) This section is subject to section 101F but otherwise applies despite any enactment or rule of law to the contrary.(7) See also section 101G (meaning of “proceedings before a judicial authority” and “circumstances ancillary to a conviction or caution”).101F Saving for Royal pardons etcNothing in section 101E affects any right of Her Majesty, by virtue of Her Royal prerogative or otherwise, to grant a free pardon, to quash any conviction or sentence, or to commute any sentence. 101G Section 101E: supplementary(1) In section 101E, “proceedings before a judicial authority” includes (in addition to proceedings before any of the ordinary courts of law) proceedings before any tribunal, body or person having power—(a) by virtue of any enactment, law, custom or practice,(b) under the rules governing any association, institution, profession, occupation or employment, or(c) under any provision of an agreement providing for arbitration with respect to questions arising under that agreement,to determine any question affecting the rights, privileges, obligations or liabilities of any person, or to receive evidence affecting the determination of any such question.(2) For the purposes of section 101E, circumstances ancillary to a conviction are any circumstances of—(a) the offence which was the subject of the conviction;(b) the conduct constituting the offence;(c) any process or proceedings preliminary to the conviction;(d) any sentence imposed in respect of the conviction;(e) any proceedings (whether by appeal or otherwise) for reviewing the conviction or any such sentence;(f) anything done in pursuance of, or undergone in compliance with, any such sentence.(3) For the purposes of section 101E, circumstances ancillary to a caution are any circumstances of—(a) the offence which was the subject of the caution;(b) the conduct constituting the offence;(c) any process preliminary to the caution (including consideration by any person of how to deal with the offence and the procedure for giving the caution);(d) any proceedings for the offence which take place before the caution is given;(e) anything which happens after the caution is given for the purposes of bringing any such proceedings to an end;(f) any judicial review proceedings relating to the caution.Appeals and other supplementary provision101H Appeal against refusal to disregard convictions or caution(1) The applicant may appeal to the High Court in Northern Ireland if—(a) the Department of Justice in Northern Ireland makes a decision of the kind mentioned in section 101C(3)(b), and(b) the High Court gives permission for an appeal against the decision.(2) On such an appeal, the High Court must make its decision only on the basis of the evidence that was available to the Department of Justice in Northern Ireland.(3) If the High Court decides that it appears as mentioned in condition A in section 101A, it must make an order to that effect.(4) Otherwise, it must dismiss the appeal.(5) A conviction or caution to which an order under subsection (3) relates becomes a disregarded conviction or caution when the period of 14 days beginning with the day on which the order was made has ended.(6) There is no appeal from a decision of the High Court under this section.101I Advisers(1) The Department of Justice in Northern Ireland may appoint persons to advise whether, in any case referred to them by the Department of Justice in Northern Ireland, the Department of Justice in Northern Ireland should decide as mentioned in condition A in section 101A.(2) The Department of Justice in Northern Ireland may disclose to a person so appointed such information (including anything within section 101C(1)(a) or (b)) as the Department of Justice considers relevant to the provision of such advice.(3) The Department of Justice in Northern Ireland may pay expenses and allowances to a person so appointed.101J Interpretation: Chapter 5(1) In this Chapter—“caution” means a caution or a warning given to a person in Northern Ireland in respect of an offence which, at the time the caution or warning is given, that person has admitted,“conviction” includes—(a) a conviction in respect of which an order has been made discharging the person concerned absolutely or conditionally, and(b) a finding in any criminal proceedings (including a finding linked with a finding of insanity) that a person has committed an offence or done the act or made the omission charged,“disregarded caution” is a caution which has become a disregarded caution by virtue of this Chapter,“disregarded conviction” is a conviction which has become a disregarded conviction by virtue of this Chapter,“document” includes information recorded in any form and, in relation to information recorded otherwise than in legible form, references to its provision or production include providing or producing a copy of the information in legible form,“information” includes documents,“notice” means notice in writing,“official records” has the meaning given by section 101D(5).(2) Paragraph (a) of the definition of “conviction” applies despite Article 6 of the Criminal Justice (Northern Ireland) Order 1996 (S.I. 1996/3160 (N.I. 24)) (which deems a conviction of a person discharged not to be a conviction).(3) In this Chapter, a reference to an offence includes—(a) a reference to an attempt, conspiracy or incitement to commit that offence, and(b) a reference to aiding, abetting, counselling or procuring the commission of that offence.(4) In the case of an attempt, conspiracy or incitement, the references in this Chapter to the conduct constituting the offence are references to the conduct to which the attempt, conspiracy or incitement related (whether or not that conduct occurred).(5) For the purposes of subsections (3) and (4) an attempt to commit an offence includes conduct which—(a) consisted of frequenting with intent to commit the offence any river, canal, street, highway, place of public resort or other location mentioned in section 4 of the Vagrancy Act 1824 (as it then had effect) in connection with frequenting by suspected persons or reputed thiefs, and(b) was itself an offence under that section.”(2) In Article 2 of the Rehabilitation of Offenders (Northern Ireland) Order 1978 (S.I. 1978/1908 (N.I. 27) (interpretation), after paragraph (3) insert— “(3A) This Order does not apply to any disregarded conviction or caution within the meaning of Chapter 5 of Part 5 of the Protection of Freedoms Act 2012.(3B) Accordingly, references in this Order to a conviction or caution do not include references to any such disregarded conviction or caution.”(3) In the heading of Chapter 4 of Part 5 of the Protection of Freedoms Act 2012, at the end insert “: England and Wales”.(4) In section 92 of that Act, after subsection (5) insert—“(6) Except in relation to service disciplinary proceedings, this section applies only in relation to persons convicted or cautioned in England and Wales.””