The Protection of Freedoms Act was introduced in February 2011 and came into force on 9 May, 2012. It is a comprehensive bill that addresses laws considered damaging to civil liberties. Stonewall ensured that Part 5, Chapter 4, “Disregarding certain convictions for buggery etc.”, secured protections for gay men who had been convicted under laws that date back to 1824.
The Protection of Freedoms Act means that a man conviction for “gross indecency”, i.e. homosexual conduct, before the legalisation of homosexuality in 1967 can now apply to have that conviction removed from the record. It also applies to convictions for consensual sex between the ages of 16 and 21 in the years before the age of consent was made equal.
I talked to Richard Lane, the External Affairs Officer at Stonewall, about the implications of the Act as well as the work that Stonewall undertook to secure the necessary rights for gay men to have historic convictions erased.
What is the scope of the Protection of Freedoms Act for gay men?
We’ve been contacted over the years by hundreds and hundreds of men who say they have convictions on their records that date back from when the age of consent was unequal, or go further back to before decriminalisation.
Primarily, the Act was about the age of consent, so that if you’d had a conviction for having sex when you were 20 you could have your criminal conviction removed.
A lot of people think it is only about decriminalisation, so ask how many people are going to be worried. There are cases of people in their 30s and early 40s who have convictions on the records. It’s stopping them applying for jobs, and in later life stopping them applying to help out with charities and voluntary groups.
Does that mean that such people are on the Sex Offenders Register?
No, it’s a variety of convictions, so a lot of them could just be cautions, but they will still show up.
One of the questions I have is why now, and why has it taken so long?
It’s something Stonewall has been raising privately with ministers and MPs from all parties for some time. It was introduced in February 2011 as part of the wider Protections of Freedoms bill, which is an absolutely enormous bill. The Coalition introduced it to remove what they felt was unnecessary legislation, and thought it was a good vehicle to remove some of the more authoritarian civil liberties issues that had accumulated.
The clauses that we were interested in, those removing historical convictions, were 12 or so clauses in this immense bill. It was a good vehicle for removing unnecessary convictions from the statutes.
Is it easier, from Stonewall’s point of view, to get something like this through when it is attached to a larger bill like this one?
There are always going to be issues around such laws. I don’t think this was uncontroversial because it was part of a wider bill, I think it was uncontroversial because it had such cross-party support, and we saw it at every stage, Committee stage, Commons, House of Lords, we had people speaking out from all parties; we had bishops in the House of Lords welcoming this as a step toward giving people a semblance of dignity by removing these convictions.
It’s interesting that it’s happening around the time of the marriage equality debate. People are getting inflamed about that debate, and not about this. When you were working on this, was there opposition and if so what kind of form did it take?
There wasn’t really. It isn’t easy getting anything through parliament. There were a few backbenchers that opposed the measures. It was great that it was a government bill. It had Lib Dem and Conservative support. Labour were fundamentally supportive of these provisions, even thought they were not necessarily supportive of other aspects.
We had some concerns when the bill was introduced, that the scope and the scale of it didn’t capture all of the offences the government had intended it to. When we gave evidence at the Committee stage, our Chief Executive, Ben Summerskill, raised concerns that police in ‘60s, ‘70s, ‘80s, and even into the ‘90s, had been very creative in the way that they targeted and prosecuted gay men. And so one of the aspects was the Vagrancy Act, 1824, which had provisioned that meant you could convict someone for loitering with intent, and so if someone was just hanging around a park doing nothing and a police officer felt they were there to be cruising, or something like, they could be convicted. We lobbied hard for that to be added to the convictions that were covered, and were successful in that.
Looking over the legislation, one of the clauses states that a conviction would be removed from the record if “any such conduct now would not be an offence under section 71 of the Sexual Offences Act 2003 (sexual activity in a public lavatory).”
The intent of the legislation was to allow anyone who has a conviction that is no longer illegal to have that conviction removed. What the government was clear about, and Stonewall thinks it perfectly reasonable, is that it would not remove convictions for something that is still illegal. It is still illegal for two people to have sex in a public toilet. What that piece of the legislation made clear was that if your conviction, even if it was about the age of consent, had been for having sex in a toilet, it would still be illegal today, so it would not be removed.
Is that why there is an application process to have convictions removed from the record?
The write-in process is there for several reasons. It’s not always clear why people have been convicted. There needs to be a process to establish whether it is right that their convictions are removed from the record. If it’s a simple case that they were having sex before decriminilisation, it’s clear if they were both consenting adults above the age of 16. Often records aren’t complete. The records aren’t centrally held. They’re on paper in individual government facilities. So there’s not necessarily some way they could go through a computer system and wipe off everything covered by the Act. And equally, if the government simply wrote to everyone who has such a conviction, it might be the case that some of these people are in relationships, heterosexual relationships perhaps, and they don’t want to receive a letter that their partner would see. A lot to people are horrified that they have these convictions in the first place.
What happens now if someone wants to apply to have their conviction removed?
The Home Office is currently establishing what the mechanism for this is going to be, and we’ll be working with them closely to do that. It’s likely that it will simply be a write-in process, and so they’ll put out guidance for the information that people will need, such as the address at the time, where the conviction took place. We’re hoping it will be easier than the process that was originally proposed, as it said that if the request was rejected the only recourse you would have to appeal was to go the High Court. We thought this was unfair. Perhaps someone spelled their name wrong, or misremembered an address, and so to go the High Court would be extreme. There would be some way to work with officials to locate details. We’ll be publishing some guidelines to give simple advice to people on how to go about applying for this.