David Stanton (Cork East, Fine Gael) | Oireachtas source

I will speak today on behalf of my colleague the Tánaiste and Minister for Justice and Equality, Deputy Frances Fitzgerald, who regrets she cannot be present due to other business but she is very interested in this issue. I also thank Senators Nash, Bacik, Humphreys and Ó Ríordáin for introducing this Bill.

The Bill before the House today is very interesting. Its stated purpose is to provide for an apology and exoneration of people convicted of certain same-sex sexual acts. The Bill is similar in sentiment but very different in effect to that of the UK Protection of Freedoms Act 2012, which provides for a disregard of such convictions and that jurisdiction's Policing and Crime Bill 2015 which I understand has been recently enacted and is known as Alan Turing's law. It will grant a pardon to any person who has a conviction disregarded under the 2012 procedures to which Senator Nash already has alluded. Alan Turing's life was portrayed recently in "The Imitation Game". If one saw that, one would see the injustice that was meted out to him in the end. Mention also was made of Oscar Wilde earlier and I wish to join in recognising the work of Senator Norris in this area in the past.

There is no system of disregarding convictions in Ireland at present. Legislation was enacted last year which enables minor convictions to be regarded as spent after a number of years but this simply means that the convicted person does not usually - but there are exceptions - have to disclose those convictions, for example when applying for a job. The record of the conviction is not deleted. The apology and exoneration proposed in the Senators' Bill would be appear to be purely of declaratory nature. It is to some degree along the lines of the Defence Forces (Second World War Amnesty and Immunity) Act 2013. However, that Act provides for an amnesty for those convicted of being absent without leave or who were dismissed from the Defence Forces pursuant to emergency powers in force at that time while fighting for Allied forces during the Second World War. The Defence Forces (Second World War Amnesty and Immunity) Act 2013's approach to an amnesty for each relevant person involved an acknowledgement that the treatment they received as a consequence of their actions was unduly harsh, an apology for such treatment and an exoneration in respect of those acts which occurred in the special circumstances of the Second World War.

The disregard of a conviction in the UK in such cases is for offences under their relevant legislation and involves an application that must be considered by the Home Secretary. The conditions of the disregard are that the act was consensual, that the other person involved was 16 or older and that the act would not now be an offence under the Sexual Offences Act 2003 of sexual activity in a public lavatory. As well as the information required for such an application to be considered, the UK Act also sets out the procedure to be followed by the Home Secretary in considering it. If a disregard is granted, all records of the offence are deleted and it has the effect that the conviction never occurred. I understand that the authorities in Northern Ireland are preparing to implement the 2015 Bill, now enacted, and that their intention is that a pardon will automatically follow a disregard in a one-step system.

Turning to the detail of the current Bill, it is clear that it is significantly different from the formalised approach I have just outlined. Section 1 of the Bill sets out the now abolished offences to which the Bill would apply. These are the Act for the Punishment of the Vice of Buggery (Ireland) 1634, section 16 of the Offences Against the Person (Ireland) Act 1829, section 61 of the Offences Against The Person Act 1861 and section 11 of the Criminal Law Amendment Act 1885. The 1634 Act was repealed by the 1829 Act, which in turn was replaced by the 1861 Act. The 1861 and 1885 offences, which dealt with sodomy and gross indecency between men, applied to both consensual and non-consensual acts and were repealed by the Criminal Law (Sexual Offences) Act 1993. Section 2 of the Bill provides for an apology and exoneration to those convicted of an offence listed under section 1, as well as an acknowledgment that the offences occurred and prosecutions were improperly discriminatory, contrary to human dignity and infringed personal privacy and autonomy. Section 2 also confirms that the Bill will not confer any right on any persons, create a cause of action, as the Senator just mentioned, or impose a liability on the State. Section 3 exempts from the application of the Bill offences where the other person involved was under 17 years of age or lacked capacity to consent.

There are a number of other points that the Tánaiste and I wish to raise on the Bill as currently drafted. In drawing these points to Members' attention, I am informed by preliminary advice that has been received from the Office of the Attorney General. There are aspects of the Bill which we believe require further consideration and some of which may give rise to unintended consequences. As Senators have said, some of these issues can and will be dealt on Committee Stage where the details can be tweaked. The point which gives rise to the most significant issue of concern is that the Bill, as currently constructed, will extend an apology and exoneration to persons who were convicted of non-consensual same-sex sexual acts. Although the objective of the Bill, as set out in the Long Title, is to provide for an apology and exoneration to persons convicted of consensual same-sex sexual acts, the Bill in fact extends beyond the boundaries of that objective in the manner outlined above. This would have very serious implications, not least for the victims of such crimes. I am sure the Senators sponsoring this Bill will give careful consideration as to how this issue might be dealt with. It may be that the declaratory effect of the Bill can be clarified.

The UK takes a different approach, which is to look at each case individually and ensure that those convictions that related to non-consensual activity were not the subject of an improper apology and exoneration. Of course, this is in a context where the UK system will have real legal effect. However, there would be practical difficulties with this approach, not least of which would be the fact that more than 23 years, and in many cases potentially far longer, would have passed since any case was initiated and that difficulties would arise in terms of dividing the cases into those where consent was an issue and where it was not.

The Senators’ Bill also seeks to extend its provisions to convictions which took place prior to the creation of Saorstát Éireann. This brings up the very difficult question of legal theory, which is unclear as to whether legislation can operate so as to grant an apology and exoneration to those convicted by courts established prior to the foundation of the State. Finally, while the Bill specifies that no rights are conferred on any person or liability imposed on the State by the provisions of the Bill, the precise legal effect of an apology and exoneration is not clear beyond a declaration of the sentiments of section 2 of the Bill. Despite the concerns expressed, the Government does not, of course, oppose the principle of the Bill. These issues are raised simply to highlight the areas which the Government believes require further consideration if the Bill is to achieve its purpose and not have unintended consequences. All legislation goes through this process and this is why we are here debating legislation. I am sure the Senators sponsoring the Bill will reflect on these issues and consider how best they might be dealt with as the Bill progresses.

It was a proud day for Ireland when the Act of 1993 came into force and decriminalised consensual sexual acts between men. It marked the beginning of a fairer and more modern Ireland which seeks to incorporate all its citizens, with their similarities and differences, into a united and respectful society. That process of reform is continuing this evening when the Tánaiste and Minister for Justice and Equality will return to the Dáil to begin the Report Stage of the Criminal Law (Sexual Offences) Bill 2015. The Bill marks a significant legislative development in the law of sexual offences and seeks to protect the vulnerable. The Bill will introduce, for the first time, a statutory definition of consent and a non-exhaustive list of situations where a person does not consent to a sexual act. These provisions reflect both the common law position and the experience in terms of issues that arise at the trial of such cases. Consent is at the heart of every lawful sexual act and this is why the Government is concerned as to the impact of any unintended consequences of the Senators' Bill, particularly on the victim, if exoneration was to be given to someone who had committed rape.

The Criminal Law (Sexual Offences) Bill 2015, together with the Criminal Justice (Victims of Crime) Bill 2016, will provide victims, and in particular vulnerable victims - into which category all victims of sexual crime fall - with greater protection from offences and greater support as they navigate their way through the criminal justice system. This work emphasises the Government’s commitment to tackling sexual crime and to improving the lot of the victim, which has too often been forgotten in the past. These Bills are a result of periods of careful reflection together with engagement with civil society organisations representing victims and the criminal justice agencies that advise on the practical considerations of the implementation of the legislation.

I again thank the Senators for bringing forward this Bill and very much welcome the debate here today.