This month, our beautiful green country celebrates every colour of the Pride rainbow. Pride has become a glorious country-wide annual occasion full of festivities, fun and jubilation. It is rightfully and joyously a time to embrace LGBTQ+ culture and to recognise the value that diversity and acceptance brings to our society.
It is also a time to reflect on our LGBTQ+ community’s history in this country. Ireland owes much of its rich creative global reputation to our LGBTQ+ community. And while we wonder at the genius and the legacy left by many brilliant Irish queer people, it’s essential that we also recognise the more everyday stories and, in particular, the ways in which queer people were failed by the State.
As Minister for Justice, as a citizen of Ireland, and as an ally, I take my role in this journey very seriously. That is why my Department is taking active steps to address some of the lingering harm caused by the historic criminalisation of homosexuality.
This Pride season, we approach the 29th anniversary of the decriminalisation of homosexuality. 1993 can seem like a long time ago but it is really in the very recent past that consensual sexual acts between men was a crime in Ireland.
During this period of criminalisation, hundreds of men fell victim to these laws and despite decriminalisation and the progress made socially and legally since then, their criminal records remain intact.
I recognise that this continues to have a significant impact on these men, their families and loved ones, and my Department is currently taking steps to meaningfully address this legacy.
To mark the 25th anniversary of the decriminalisation in 2018, the Government began the process of atonement when it issued an apology to affected men. The apology acknowledged that these laws were discriminatory, causing multiple harms to these men and their loved ones.
Coinciding with the State apology, the then Taoiseach announced plans to develop a scheme to disregard these criminal convictions for consensual sex. The Department of Justice was tasked with this job and immediately began engaging with An Garda Síochána to see how a scheme could be developed.
In an ideal world it would be a simple matter of just removing all of the convictions under these laws, but we know that the justice system is necessarily robust and inevitably complex.
Part of the complexity is that historic laws criminalising consensual sex between men didn’t distinguish between consensual acts between adults and those that were non-consensual or involved minors. For this reason, the Government can’t disregard all convictions under these laws because it would also clear the record of those convicted under these provisions for sexual assault and child abuse.
The process of disregarding convictions under the old laws involves a consideration of each individual case, on application by the individual concerned, to determine the circumstances of a conviction to ensure that the act was consensual and did not involve a minor before it can be disregarded.
While this process will no doubt be painful for some, it is crucial for the integrity of convictions for genuinely criminal acts, and for the victims of those crimes.
In an effort to improve the process by making it more practical and engaging, the Department of Justice, following consultation with An Garda Síochána and community representatives, established a ‘Working Group to examine the disregard of convictions for certain qualifying offences related to consensual sexual activity between men’.
The Working Group is made up of representatives from the Department of Justice, An Garda Síochána, the Attorney General’s Office, the Irish Human Rights and Equality Commission and the LGBTQ+ community. It began its work in July 2021 and I expect to receive its final recommendations by the end of this year.
One of the key challenges of the Working Group is finding out what records are available to support applications and what to do when these records are incomplete or don’t provide enough detail to ensure the act was consensual and did not involve a minor. The Working Group has recognised that the onus lies with the State to maintain, preserve and produce records and that the scheme should seek to minimise the burden placed on applicants as much as is practical.
In an effort to address these issues, my Department and the Working Group will launch a targeted public consultation this summer.
Some of the questions contained in the consultation will ask how to make the scheme more accessible; whether there were ever any other laws utilised to prosecute consensual sexual activity between men in Ireland; and which body would be the most appropriate first point of contact for an individual seeking to avail of the disregard procedure.
All submissions to the consultation process will be confidential and will inform the final recommendations of the Working Group on what this scheme should look like.
In addition to working to address this important issue, I am also committed to publishing the Hate Crime Bill in the summer. The Bill will create new, aggravated forms of certain existing criminal offences, where those offences are motivated by prejudice against a protected characteristic, including sexual orientation.
The Bill will also strengthen the law around incitement to hatred by proposing clearer and simpler offences of incitement to hatred than those in the existing 1989 Prohibition of Incitement to Hatred Act. These new offences will cover inciting hatred against a person or persons because they are associated with a protected characteristic, and also disseminating or distributing material inciting hatred.
The aggravated offences will generally carry an enhanced penalty, compared to the ordinary offence, and the record of any conviction for such an offence would clearly state that the offence was a hate crime.
In concluding, I want to encourage anyone affected, and representative groups, to engage with the public consultation on disregarding convictions when it launches in the coming weeks. I want to make this scheme as accessible, respectful and effective as possible so we can exonerate the affected men and address some of the lingering harms of the past. Achieving that would be something we could all be proud of.