Paul Johnson and Michael Cashman: Everyone convicted under homophobic laws in Northern Ireland deserves redress

The Northern Ireland disregard and pardon schemes were introduced as a result of legislation that we and Lord Lexden worked on, in collaboration with then Belfast city councillor Jeffrey Dudgeon MBE, with the UK government in 2017.

When the schemes were introduced in Northern Ireland, they largely mirrored the schemes then in operation in England and Wales.

Currently, for those living with cautions or convictions obtained in Northern Ireland, a disregard can be applied for and, if successfully obtained, that person will be treated for all purposes in law as if they did not commit the offence. Where a person has a caution or conviction disregarded, the person is also pardoned for the offence.

For those people who were cautioned for or convicted of an offence in Northern Ireland but died before the pardon scheme came into operation, a posthumous pardon was automatically granted providing certain conditions were met.

These posthumous pardons extend back to 1634, the year that buggery (sodomy) was made a statutory offence in Ireland (Ireland is currently planning to introduce its own disregard scheme).

However, from the time that the disregard and pardon schemes were introduced in Northern Ireland we have known that they were inadequate, because the schemes did not cover the full range of offences under which people may have been cautioned or convicted. For this reason, we worked to ensure that provision was made in legislation in 2017 to provide a power to the Department of Justice to enable the schemes to be expanded – a power which the Department of Justice has not used.

In respect of England and Wales, in three pieces of legislation, we worked to widen the disregard and pardon schemes to ensure that everyone can obtain the redress they deserve. The schemes in England and Wales now cover all cautions and convictions under abolished offences for sexual activity between people of the same sex which would not be unlawful today. This includes offences under armed forces legislation.

Unfortunately, no similar progress has been made in respect of the Northern Ireland schemes, which remain limited in scope. Under the NI schemes, only those cautioned for or convicted of a small number of offences – principally, buggery and gross indecency – can obtain a disregard and/or a pardon.

The schemes in NI are problematic because a wider range of offences may have been used to criminalise people. For example, laws regulating “importuning” may have been used to deal with someone for as little as “chatting up” another person of the same sex in a public place. Similarly, laws regulating conduct in public places may have been used to deal with same-sex couples engaging in conduct which would have been innocuous if engaged in by different-sex couples.

It is important, therefore, that the disregard and pardon schemes in NI are expanded to allow any person with a caution or conviction for any historical homophobic offence to obtain justice.

There are two ways in which the disregard and pardon schemes can be expanded.

First, the Department of Justice could use the power granted to it in 2017 to expand the disregard and pardon schemes by regulations, to add offences to the list of offences covered by the schemes. Secondly, the NI Assembly could expand the schemes by way of making new legislation.

Regrettably, the Department of Justice and assembly have not, to date, expanded the disregard and pardon schemes, which leave people in NI with a much more limited form of redress than those elsewhere in the UK. We hope this will change in the near future, so that any historical injustices can be addressed and the human rights of people in Northern Ireland can be fully respected.

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l Professor Paul Johnson OBE is executive dean at the University of Leeds; Lord Cashman CBE is a former Labour MEP and a non-affiliated peer of the House of Lords