* Any views expressed in this opinion piece are those of the author and not of Thomson Reuters Foundation.
The UK government must stop dragging its heels and move quickly to pardon all those convicted of historic consensual same-sex offences
Professor Paul Johnson is head of the department of sociology at the University of York; Alistair Lexden is a Conservative peer and Lords Deputy Speaker; and Michael Cashman, a former Labour MEP, is a non-affiliated peer in the House of Lords
Since the turn of the century, legislators have been incrementally addressing the great historical injustices done to LGBT+ people in the UK.
Between 2012 and 2018, the UK and Scottish parliaments also enacted legislation, designed to “right historic wrongs”, that created a scheme whereby gay men with cautions or convictions for now abolished sexual offences can have them disregarded.
Perhaps the most significant way in which legislators have sought to right historic wrongs done to gay people is through the granting of posthumous pardons.
The idea for this started with Lord Sharkey, who made two unsuccessful attempts to legislate, in 2012 and 2014. The government was not receptive, and Lord Sharkey turned his attention to obtaining a posthumous pardon for Alan Turing, an English mathematician and computer scientist convicted for “gross indecency” in 1952, a time when gay sex was illegal in the UK.
Lord Sharkey’s move was seen as a “symbolic first step” towards achieving the same outcome for all deceased men. In 2013, the Queen granted Turing a posthumous pardon under the royal prerogative of mercy.
Although Turing’s pardon was widely welcomed by the public, there was also considerable support for the idea that all gay men convicted of abolished sexual offences should be pardoned. As a result, the UK parliament, in 2017, enacted legislation that provided posthumous pardons for those in England and Wales, and Northern Ireland, convicted of certain abolished offences – principally, buggery and gross indecency – under laws extending back to 1533. The Scottish parliament enacted similar legislation in 2018 for those in Scotland.
The pardons legislation means that any deceased person convicted or cautioned for engaging in an adult, consensual same-sex sexual act is now automatically pardoned for the offence. However, there is a significant problem with the legislation relating to the armed forces.
Whilst posthumous pardons have been granted to naval personnel going back to 1661, pardons for army personnel have only been extended back to 1881. This means that men serving in the army prior to 1881, who were convicted of consensual same-sex sexual acts under military law, have not been posthumously pardoned like their civilian counterparts.
A similar problem also relates to the Royal Marines.
We raised this question in 2016, as the pardons legislation passed through the House of Lords. Since then, we have continued to pursue the issue in a number of ways with the government, through written questions in the House of Lords (in January and November 2017, and September 2019) and letters to Ministers of Defence.
The government acknowledges the problem, and states that there is a commitment to address it. However, three years on, soldiers convicted under military law prior to 1881 still await their posthumous pardons.
The government states that one of the problems they face is the complexity of the historical legislation, which involves annual “Mutiny Acts” passed by parliament and articles of war made by the Crown.
However, we have provided the Ministry of Defence with a comprehensive draft of an amendment, listing all relevant army and Royal Marine legislation extending back to 1688, which could be made to the legislation to rectify the problem.
We do not know how many gay men in the army were convicted under military law prior to 1881 or how many should receive a posthumous pardon. This is partly due to the fact that publicly available records somewhat cryptically show army personnel having been convicted of “unnatural offences”, therefore making it difficult to know precisely whether these involved consensual same-sex sexual acts.
It is also the case that, where we have records of men in the army having been convicted of sodomy, we do not know the circumstances of the offences.
However, like in the case of civilian offences, those army personnel who were convicted of acts that would now be lawful deserve to be pardoned, so that any stain can be removed from their reputations and to offer comfort for their families.