Sexual Offences Act 1967

Lord Lexden Excerpts

Tuesday 18th July 2017 Lords Chamber

Asked by

[Lord Lexden]

To ask Her Majesty’s Government whether they are planning to mark the 50th anniversary of the Sexual Offences Act 1967.

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

My Lords, we have a whole programme of events during July to celebrate both Pride and the 50th anniversary of the partial decriminalisation of homosexuality. Ministers will be holding events with stakeholders throughout the month and departments will be flying the rainbow flag above their offices. We will also be releasing videos to celebrate the progress we have made over the past 50 years and demonstrate our support for Pride.

[Lord Lexden (Con)]

I thank my noble friend for her Answer, which underlines the importance of this anniversary. Does she agree that although an immense amount has been achieved over the period of 50 years since 1967, there is more still to do, most notably, perhaps, the extension of same-sex marriage to Northern Ireland, where, as opinion polls consistently show, widespread support exists for it? Perhaps it would be appropriate today also to salute the memory of the late Lord Arran, who campaigned so tenaciously from the Liberal Benches for his reform legislation, which completed its passage through this House on 21 July 1967. He had a second Bill on the protection of badgers, which did not pass. Asked why his first Bill succeeded and the second failed, he replied cheerily, and a little irreverently, “Well, you see there aren’t many badgers in the House of Lords”.

[Baroness Williams of Trafford]

My Lords, there are not many badgers in the House of Lords but one might see the odd mouse. My noble friend makes a very valid point. Northern Ireland might peer south to southern Ireland, which has just elected its first gay Taoiseach, Leo Varadkar, the son of an Indian Immigrant. That is progress indeed. I join my noble friend in paying tribute to the late Lord Arran. Civil partnerships have been legal in Northern Ireland since 2004, but we encourage it to introduce equal marriage. There are currently two challenges to bans on same-sex marriage in Northern Ireland. Ultimately, it is a devolved matter but we continue to encourage it.

Asylum: Sexual Orientation

Lord Lexden Excerpts

Wednesday 14th December 2016 Lords Chamber

[Baroness Williams of Trafford]

The Home Office works, and continues to work, with groups like Stonewall, and we know that some of the training received by people who process claims has improved and that questions are much more sensitively put than perhaps some of the anecdotal evidence from the past suggests. The 2014 report of the Independent Chief Inspector of Borders and Immigration into the handling of sexual orientation claims praised our guidance.

[Lord Lexden (Con)]

What is the Government’s reaction to Stonewall’s recent recommendations that alternatives to detaining LGBT asylum seekers should be developed, drawing on international best practice?

[Baroness Williams of Trafford]

I can tell my noble friend that certainly the Shaw review recommended that transgender and intersex people should be in the vulnerable persons category and as a general principle should not be detained.

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.””

Sexual Abuse: Harassment of Suspects

Lord Lexden Excerpts

Thursday 8th December 2016 Lords Chamber

Asked by

[Lord Lexden]

To ask Her Majesty’s Government, further to the answer by Baroness Williams of Trafford on 9 November concerning the report by Sir Richard Henriques into Operation Midland, what guidance they have given to police forces about measures to prevent the harassment by third parties of suspects under investigation in connection with claims of sexual abuse.

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

My Lords, the protection of suspects experiencing harassment is an operational matter and one that forces should consider on a case-by-case basis. However, I can confirm that the College of Policing is currently developing general guidance on stalking and harassment and updating existing guidance on police relationships with the media.

[Lord Lexden (Con)]

Do the Government share the widespread feelings of disappointment that the Metropolitan Police’s response to the truly damning Henriques report has so far been—to use polite words—rather muted? In the aftermath of Operation Midland and other scandals, do we not need to be sure that certain misdeeds will never be repeated—for instance, that the BBC and the police will never again collude in the manner that they did in the case of the wholly innocent Sir Cliff Richard? Do we need a binding police code of conduct to which all those unfairly and falsely accused—indeed, everyone— can have ready access?

Istanbul Convention

Lord Lexden Excerpts

Thursday 24th November 2016 Lords Chamber

[Baroness Williams of Trafford]

We liaise regularly with the devolved Administrations on violence against women and girls issues. Ministry of Justice officials have had informal contact with their counterparts in the devolved Administrations about the extraterritorial jurisdiction requirements of Article 44. We will formally consult Ministers in the devolved Administrations about whether legislative change on ETJ in England and Wales should extend to Scotland and Northern Ireland in due course.

[Lord Lexden (Con)]

How much time has passed since this convention was signed?

[Baroness Williams of Trafford]

I think it is about four years.

Immigration: Overseas Students

Lord Lexden Excerpts

Thursday 17th November 2016 Lords Chamber

[Lord Lexden (Con)]

My Lords, it is a great pleasure to follow the right reverend Prelate the Bishop of Winchester, who mingled wit and wisdom in his wise comments to us.

The Motion that my noble friend Lord Lucas has enabled us to debate today, with our manifest gratitude, covers both universities and colleges. I shall comment from the perspective of colleges, and indeed schools, in the independent sector, where large numbers of overseas students have been educated with skill and success for many years.

I declare my interest as president of the Independent Schools Association, the ISA, one of a number of bodies that comprise the Independent Schools Council, of which I am a former general secretary. The ISA works on behalf of some 400 schools, generally small in size, committed to keeping their fees as low as possible and to increasing means-tested bursaries, and fully integrated with their local communities. They feature hardly at all in the interminable stock controversies about independent education, which revolve chiefly around a small number of so-called public schools.

I am also president of the Council for Independent Education, CIFE, which brings together a group of 20 leading private sixth-form colleges. They focus on A-levels, exam success and excellent pastoral care. At least 15,000 international students have passed successfully through CIFE colleges on their way to UK universities in the last 10 years. The colleges mingle great talents and different cultures, enriching our own country and other nations.

It will perhaps come as little surprise to your Lordships that in these schools and colleges there is unanimous opposition to the inclusion of overseas students in the official immigration figures. On this central issue, the voice of our universities has been heard loudly and clearly but the voice of independent schools and colleges is no less emphatic. The arguments are well-known in your Lordships’ House—indeed, they are being restated in this debate—and I will not take up time by repeating them. Suffice it to say that the current arrangements impede recruitment and damage the reputation of our country as a place that is both open and welcoming to overseas students.

It ought surely to be a fundamental objective of any Government to assist the continuing success of our country’s private education sector in recruiting overseas. Its schools and colleges are world leaders, earning significant foreign exchange and promoting British cultural and democratic values worldwide. But with the reverberations of Brexit stirring concern about our country’s future across the globe, Britain’s independent schools and colleges are increasingly conscious of the difficulties that they face because of our current stringent immigration study requirements. Our English-speaking competitors in the international market are not slow to seek progress at our expense, stressing their greater openness and easier entry requirements. This was brought home to a CIFE college principal on a recent visit to Nigeria: Canada, he was told, was now seen as more attractive than the UK.

Serious concern has arisen in particular because the processes through which overseas students have to pass have become increasingly onerous and, in their application, a source of increasing anxiety to schools and colleges because stiff penalties are now being imposed, often in a seemingly arbitrary fashion, for minor paperwork errors. Britain’s schools and colleges today are subject to stringent regulatory oversight. There is no complaint to be made about that, but very minor infractions of regulations are now being reported by the inspectorate to UKVI, which in turn is liable to impose heavy sanctions on schools and colleges sponsoring students under the tier 4 route. Sanctions include the reduction of what are known as “confirmation of acceptance for studies” numbers to zero. That can threaten the very existence of schools and colleges with a significant proportion of overseas students.

A litany of complaints from schools and colleges about decisions by UKVI, many of them apparently arbitrary in character, has reached the ISA’s chief executive, my colleague Mr Neil Roskilly. When information is sought from UKVI it is often slow in coming—a point made by my noble friend Lord Lucas. The introduction of yet more regulations, particularly those which require students to apply for visas more frequently, is compounding the problem. I will, if I may, let the Minister have a dossier of the difficulties experienced by independent schools and colleges to bring home to the Government the reality of what is happening.

At the heart of so many of the problems faced by independent colleges and schools lies the tier 4 entry route. It needs to be reviewed with the simple aim of ensuring that the requirements it imposes are not more onerous than those that exist in other countries that are in competition with us. Having done that, the Government should monitor carefully the way they are applied to secure consistency, common sense and fairness.

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.

Criminal Justice: Anonymity

Lord Lexden Excerpts

Tuesday 25th October 2016 Lords Chamber

Asked by

[Lord Lexden]

To ask Her Majesty’s Government whether they are planning to give anonymity to sex abuse suspects before they are charged.

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

My Lords, as noble Lords will be aware, an amendment on this issue has been tabled by the noble Lord, Lord Paddick, in Committee on the Policing and Crime Bill, which will be debated in early November. The Government’s position is that there should be a presumption of anonymity prior to charge for any sexual offence, but that there will be circumstances in which the public interest means that a suspect should be named.

[Lord Lexden (Con)]

In relation to allegations of sexual abuse, does my noble friend agree that many people are asking themselves and Members of both Houses of Parliament whether the presumption of innocence until proved guilty is still in existence? Is it not our duty to take action—either by instituting anonymity until the point of charge, as backed by the Director of Public Prosecutions last week, or by other effective means—to reduce the terrible toll of suffering caused by false and malicious allegations against innocent people in all walks of life? Finally, do the Government agree that the institutions of both state and Church need to show much greater concern for the reputations of eminent people from the past who cannot speak for themselves? I refer to statesmen such as Sir Edward Heath, traduced by Wiltshire Police without a shred of evidence, and the great bishop, George Bell, who died in 1958 and whose reputation has been severely damaged by today’s Church authorities as a result of a secret process—a kind of private trial, which was widely deplored in a debate in this House earlier this year.

[Baroness Williams of Trafford]

I totally agree with my noble friend that the strength of our legal system is that people are innocent until proved guilty, and I hope that that always stays the case. I also completely sympathise with his point about the terrible suffering that people can go through when their names are made public but they are not in fact guilty of anything. I will not talk about individual cases but he mentioned people against whom the accusations were found to be groundless. It is important to say that there is a very fine and difficult balance to be struck. The voicing of victims’ concerns and the naming of people in the public interest to allow further evidence or further victims to come forward needs to be balanced with the right to privacy and protection of the person who is suspected.

Brexit: EU Citizens

Lord Lexden Excerpts

Monday 24th October 2016 Lords Chamber

[Baroness Williams of Trafford]

My Lords, I think that the Prime Minister has been absolutely clear about her position. Obviously, there is a negotiation to be gone through, the timing of which I cannot state to your Lordships’ House because I do not know it, but that will all be determined in due course.

[Lord Lexden (Con)]

Do the Government intend to seek specific healthcare agreements with members of the European Union? This is a matter of great importance to British citizens, particularly the older ones, living in other EU states.

[Baroness Williams of Trafford]

My Lords, healthcare agreements, as with any other agreements that we might seek through our negotiation with the EU, will all be determined in the fullness of time.

Rail Franchises

Lord Lexden Excerpts

Monday 11th July 2016 Lords Chamber

[Lord Ahmad of Wimbledon]

If the noble Baroness reflects on Hansard, I made it clear that the Government’s job is as a facilitator. We made it clear to both parties that they should have arbitration between them and find a resolution. The franchise is awarded to them. It is for them to come together around the table and find a resolution to this long-standing dispute.

[Lord Lexden (Con)]

With commuters losing their jobs as a result of this appalling dispute, has any assessment been made of the number of lost jobs?

[Lord Ahmad of Wimbledon]

I cannot answer my noble friend’s specific question but I am sure that he is aware of the issue of compensation, raised by the noble Lord, Lord Rosser. I believe that my right honourable friend the Prime Minister made it clear last week that there will be additional compensation, which the Government are looking at, made available to those long-suffering commuters.