OPINION: Time to wipe the slate clean: New UK government measures address historical convictions under homophobic laws 

Thursday, 28 April 2022 12:30 GMT

The Elizabeth Tower of the Houses of Parliament, commonly known as Big Ben, is seen in London, Britain, April 11, 2022. REUTERS/John Sibley

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The passing of the Police, Crime, Sentencing and Courts Act 2022 means that disregards and pardons are available to any person who was convicted of sexual activity between persons of the same sex, subject to certain conditions

Professor Paul Johnson is Executive Dean of the Faculty of Social Sciences at the University of Leeds; Michael Cashman is a former Labour MEP and currently a Labour peer of the House of Lords; Alistair Lexden is a Conservative peer and a Deputy Speaker of the House of Lords.

Martin Luther King Jr said, “We are not makers of history; we are made by history.”  

Dr King’s words have particular resonance for LGBTQ+ people in the UK who lived through the final years of a very long history of homophobic laws that damaged and, in many cases, destroyed lives.

Although the laws that for centuries prevented gay people living full and happy lives have been progressively repealed, such laws continue to have consequences for some people today.

Among the significant consequences are the official records that endure for those convicted of, or cautioned for, offences involving same-sex sexual conduct that would today be entirely lawful. Such records have continued to harm the lives of people who are still living today and are an insult to the memory of those who have died.

Since 2012, the legislatures of the UK have taken action to address the painful history of the persecution of gay people and have introduced “disregard” and “pardon” schemes.

Although there are some differences in the schemes operating in England and Wales, Scotland, and Northern Ireland their overall effect is to provide a mechanism for those living with a caution or conviction, for same-sex sexual conduct that would today be lawful, to have a caution or conviction disregarded and to be pardoned. In addition, posthumous pardons have been granted to those cautioned or convicted under laws extending back to the 16th century.  

Having a caution or conviction disregarded can be life changing. It means, for example, that a person will be treated for all purposes in law as if that person has not committed the offence. Moreover, the granting of pardons, aside from their legal status, is a strong, symbolic apology to each and every person who has been wronged.

The disregard and pardon schemes are therefore very important. They address individual suffering, and they also send a clear message to people in the UK, and in the wider world, that we have confronted our shameful history and said “never again”. This is particularly important at a time when, around the world, fanatical legislation is being proposed by those who wish to harm LGBTQ+ people.

However, until the passage of the Police, Crime, Sentencing and Courts Act 2022, the disregard and pardon schemes in England and Wales were significantly flawed because they encompassed only a small fraction of the offences that, over the decades and centuries, ruined the lives of gay people. Crucially, the schemes did not include the wide range of service discipline offences that allowed members of the UK armed forces to be convicted for same-sex sexual acts long after such acts became legal for civilians – offences that often ruined the careers and lives of service personnel.

For the past six years, the three of us have worked together, with supportive government ministers – particularly Baroness Goldie and Baroness Williams of Trafford – as well as dedicated civil servants, to address the limitations of the disregard and pardon schemes and bring justice to all those who need and deserve it.

We were responsible, for instance, for ensuring that posthumous pardons for Royal Navy personnel were appropriately provided for in the Policing and Crime Act 2017, and we were responsible for provisions in the Armed Forces Act 2021 that extended posthumous pardons to Army and Royal Marines personnel.

Most recently, we worked with the UK government to include provisions in the 2022 Act that change the disregard and pardon schemes in England and Wales to encompass the wide range of repealed criminal and service discipline offences that once regulated same-sex sexual activity that would be lawful today.

The changes made by the 2022 Act to the schemes in England and Wales mean that disregards and pardons are available to any person who was convicted of, or cautioned for, an offence in circumstances where the conduct constituting the offence was sexual activity between persons of the same sex, subject to certain conditions. The key conditions are that: any other person involved in the sexual activity was aged 16 or over; the offence has been repealed or abolished; and the sexual activity would not, if occurring in the same circumstances now, constitute an offence.

To return to Dr King’s wise words, it is the history of generations past that made us want to work to bring about justice for all those mistreated by English law solely because of their sexual orientation. The provisions in the 2022 Act wipe away a terrible stain from our history and, crucially, tender a deep and profound symbolic apology to those who have suffered.

We continue to work towards ensuring that the disregard and pardon schemes in Northern Ireland encompass all the offences that once criminalised same-sex sexual conduct that is lawful today.

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