Michael McDowell (Independent) | Oireachtas source

Like Senator O'Reilly, I was involved in a lengthy meeting of the Committee on Parliamentary Privileges and Oversight and, therefore, missed the earlier part of the debate, much to my regret. I note what Senator Norris said and wish him well. I join other Members in saluting everything he has done in the past to end the injustice against gay men of more than a century, going back to the 1880s, and the criminalisation of their private lives.

In legal terms, the mere fact that a Bill is passed by the Oireachtas repealing a law does not clear convictions under that law. There are a load of constitutional complications. Members may recall the occasion when the law relating to unlawful sex with a minor was condemned by the Supreme Court and the court came back to say that did not mean that everyone who was convicted under that law would get out of jail. There is that dimension to the issue - that simply repealing a law does not effectively clean the slate. Even if the Supreme Court had condemned the previous law as unconstitutional when it had that opportunity - it is a pity it never did so - that would not have cleaned the slate either as things stand.

In the context of a scheme to right what was wrong, the presidential power of pardon is sometimes misunderstood. There is New Zealand case law to the effect that a pardon removes the conviction in its entirety. All this arose in the context of the IRA and what should or should not happen to its members when I was Minister, as well as when I was Attorney General. There is English theory to the effect that a pardon does not wipe out the conviction in its entirety. The preferable view, however, is that a presidential pardon has the effect of completely eliminating the conviction and its consequence for whoever was wrongly convicted. We should go as far as we possibly can, using every approach to say that what was wrong will be put right and that people whose records now appear to show criminal convictions should stand completely equal to every other person who has never been convicted of a criminal offence. There should be an acknowledgement in the form of a pardon, statutory scheme or whatever other measure, or a combination of them all, to put right what was wrong.

It was not until the 1880s that certain forms of what was then referred to as gross indecency between male persons were actually criminalised. Prior to that, only one form of sexual activity between gay men was criminalised. The Labouchere amendment, as it was called, should never have been enacted by the Westminster Parliament for these islands at the time. That is obvious, especially in light of the gross hypocrisy at the heart of it. Certain well connected persons could ignore that law with impunity whereas people who were vulnerable were socially disgraced, prosecuted and imprisoned. We only have to think of the shocking end to the life of Alan Turing to see just how appalling that law was. Following the tiny incident for which he was convicted, the efforts of the English magistracy to chemically castrate him and his subsequent suicide is a sad reflection in retrospect, especially given that he, in collaboration with others, saved democracy and freedom and the world from tyranny.

I am sorry I missed the early portion of the debate on this important topic. I thank those who proposed the motion for our consideration.The Government should make a real effort to do everything to expunge the injustice that was done and to symbolise by any possible legal and constitutional means the complete cancellation of the facts of those injustices and their consequences so that everyone who stands still tainted by a criminal conviction is declared to be entirely innocent and be regarded in the law as though none of those facts had ever been proven against them in prosecution, still less being punished for what they were.