This post was written last Saturday when it was achingly vogue, then lay forlornly unposted over the weekend until staleness set in, by which time it appeared destined to linger forever in my draft folder. Serendipitously, it has been offered a second wind after one of the subjects tweeted me out of the blue, allowing me, I reckon, to segue to a discussion of why, last Friday, Justice Minister Sam Gyimah powered into the media’s bad graces by apparently blocking a Private Member’s Bill which sought to automatically pardon men convicted of now-abolished sexual offences.
When SNP MP John Nicolson presented the Sexual Offences (Pardons Etc) Bill for its second reading in the House of Commons last Friday, he and many other MPs spoke eloquently and passionately about the symbolic importance of enacting legislation which would extend the pardon granted to Alan Turing in 2013 to all men, living and deceased, convicted under historic legislation that criminalised homosexual activity between consenting males over the age of 16. Sam Gyimah, a new fixture in the post-Gove Ministry of Justice, then stood up and asked Mr Nicolson to withdraw the Bill. When Mr Nicolson refused, Mr Gyimah articulated his objections at sufficient length to ensure that there was no time for a vote on whether the Bill should progress to Committee stage, effectively, as it has been reported, “filibustering” the Bill.
Cue outrage. Gyimah was variously “a disgrace”, “shameful” and, in the words of Labour MP Wes Streeting:
Today @SamGyimah came to work to block a Bill to deliver justice for ppl imprisoned and chemically castrated for being gay. What a guy.
— Wes Streeting MP (@wesstreeting) October 21, 2016
So what on earth has gone on?
To understand, we need to rewind to the origins of Nicolson’s Bill, and the pardoning of Alan Turing in 2013. Following a vigorous public campaign, and a Private Member’s Bill presented by Lib Dem peer Lord Sharkey in 2012, the government exercised the Royal Prerogative to posthumously pardon World War II code-breaker Alan Turing, who was convicted in 1952 of gross indecency for a consensual same-sex relationship with a 19 year-old man. Turing was one of an estimated 50,000 men who, until the decriminalisation of homosexuality in 1967, were convicted under provisions of the Sexual Offences Act 1956 – mostly sections 12 (buggery) and 13 (gross indecency between men) – or (as in Turing’s case) its predecessor, the Criminal Law Amendment Act 1885, and whose lives were scarred, if not ruined, by being criminalised and often brutally punished for the sin of loving another.
In recognition of the injustice occasioned by this legislation, a further legacy of the Turing campaign emerged. Section 92 of the Protection of Freedoms Act 2012 provided for a procedure whereby anyone convicted under the relevant provisions of the 1956 legislation (or its predecessor) for consensual sexual activity with someone over the age of 16 could apply to have their conviction “disregarded”. The practical effect of this was that if the Home Secretary agreed that the sexual activity founding the conviction would not be an offence today, it would be wiped from the record.
Having a conviction “disregarded” under this procedure is not the same, it should be noted, as being pardoned. “Disregarding” results in the conviction being wiped from the record books. The effect is that no offence was ever committed. By contrast, a pardon “removes from the subject of the pardon all pains, penalties and punishments whatsoever that from the said conviction may ensue” (R v Foster  QB 115, 130), but does not eliminate the conviction itself. Its function is therefore, as far as historical convictions are concerned, largely symbolic. Furthermore, the disregarding process is presently only available to those still alive to use it. For the thousands of other Turings and their families, the stain of a criminal conviction lingers. It was for this reason that, at the 2015 General Election, the Conservative Party manifesto included a commitment to introducing posthumous pardons for historical sexual convictions that no longer amount to an offence.
Which brings us to Friday, and John Nicolson’s Bill. The Bill, in short, sought to automatically pardon anyone convicted of a “specified offence”. This included anyone eligible for the disregarding process, as well as those convicted under section 32 of the 1956 Act (solicitation by men), which was omitted from the scope of disregarding. The Bill also extended the disregarding procedure to permit relatives of deceased men to apply on their behalf for a posthumous disregarding. Which, one may think, would be the sort of thing that the government would support, given its manifesto pledge.
So why didn’t it? Well, the day before the Bill’s second reading, Mr Gyimah announced in a blaze of publicity that the government was enacting an “Alan Turing Law”, by throwing its weight behind a proposed amendment to another Bill currently at the House of Lords Committee stage, the Policing and Crime Bill. Lord Sharkey, he of the Turing pardon Bill, had proposed an amendment which would do two things: firstly, automatically posthumously pardon anyone deceased who was convicted of a “relevant offence”; secondly, provide that anyone living who applied successfully for a conviction to be disregarded would also be pardoned.
Therefore, the MoJ announced, it would not support Nicolson’s Bill, instead preferring to plough its own furrow with the Sharkey amendment. What Friday brought was then a gritty stalemate in the House, as each side waved its flag and ordered the other to join its cause.
Those in favour of Nicolson’s Bill argued that the symbolism of an Act specifically and solely addressing the injustice to be remedied was vital. Appending such a socially significant statement as an afterthought to an unremarkably-titled Policing and Crime Bill did the magnitude of its symbolism a disservice. It warranted the status of being an Act in its own right.
More than this, though, a blanket pardon would cater for the many people who may not want to relive a deeply unpleasant period in their history by going through the formal disregard procedure, but would take comfort from a law formally absolving them of any moral fault. The disregarding procedure has not been widely used. In some historic cases, key documents may no longer be available, presenting an obstacle to demonstrating that, for example, the sexual activity was consensual. The fear of a refusal to have a conviction disregarded, and the further shame and indignity of official rejection, no doubt plays heavily on the minds of many elderly men. A blanket pardon would offer the official acknowledgment to these men that they have been wronged, with the disregarding procedure available for those who wished further to take advantage of the practical effect of having a conviction expunged from the record.
The MoJ’s truculence was twofold. First, it was argued that the amendment to a Bill currently before the Lords afforded a quicker vehicle to bring about the desired change. Second, and loudest, the MoJ objected that the Bill as first drafted was wide enough to appear to pardon people convicted for gross indecency in cases involving non-consensual sexual acts, particularly with children. Historic sexual allegations were, and still are, prosecuted under the 1956 Act, with many nonconsensual acts prosecuted as gross indecency or buggery (typically acts that would nowadays be prosecuted as oral or anal rape), and the MoJ understandably did not want such convicts swanning around with the glow of a pardon. Or worse, it was suggested, using a pardon to worm their way around safeguarding provisions and obtain employment working with children.
This was still Mr Gyimah’s position on Friday. But it appears entirely disingenuous. Before Friday’s debate, the Bill was amended to make clear that the pardon would only apply to cases involving consenting parties over the age of 16, section 2(4) broadly mirroring the disregarding provisions. Even if the technical drafting leaves something to be desired, this could be ironed out at Committee stage. So this argument, still being peddled by the MoJ, is patent nonsense. As for the suggestion that there may be a queue of elderly paedophiles at the job centre looking to brandish a (false) pardon in support of applications to work as school dinner monitors, Gyimah well knows that the pardon itself would be ornamental. Section 2(6) provides that a pardon under the Bill would not affect any conviction, nor give rise to any right, entitlement or liability. Even if a pardon was wrongly “appropriated” by someone who didn’t qualify, it would have no practical effect. The conviction would remain on the record until formally disregarded.
For my part, I see no principled or legal objection to the proposal by Crispin Blunt MP, whose observation appears unimpeachable:
“[The government’s] approach ties the pardon to the process of disregarding convictions from criminal records that already exists and would be extended by clause 3. There need not be such a link. The Government can be more generous. They can make a distinction between the powerful symbolic effect of the general pardon to men—some alive, many dead—and the mechanism by which individuals can benefit from the practical effects of a pardon through the disregard process. This, therefore, ensures that criminal offences that remain criminal offences today are not included in any practical consequences of the pardon. I know that the Minister will present a marginally different view and different concerns, but that discussion should be had at the Committee stage of this Bill. If the Government are not satisfied with the discussion in Committee then this Bill will not make progress towards becoming an Act.”
So why was Mr Gyimah so keen to ignore his Honourable Friend’s plea and obstruct the Bill’s passage? The only explanation one can infer is that of petty, partisan politics. A childish tussle over who gets their name in the history books. A decree from on high that it must be the Conservative party, not the SNP, to bask in the credit of bringing in The Alan Turing Law, regardless of whether the Sharkey amendment, well-intended though it undoubtedly is, fully addresses the injustices at stake. Given the choice, the government would rather appropriate a Lib Dem amendment and pass it off as their own than allow the SNP any credit for a Bill which may do the job better.
It is not right, as some have done, to level accusations of homophobia at Gyimah. But it is right to point out that the effect of his charge for vainglory may well be that a monumentally symbolic law is passed with the appearance of being a regrettable appendage to other, more worthy legislation. And that many thousands of men, who society accepts have done nothing wrong, are denied the pardon that might go some way to restoring their dignity.