Merchant Shipping (Homosexual Conduct) Bill

2nd reading (Hansard): House of Lords
Thursday 6th April 2017 Lords Chamber

Second Reading

14:41

Moved by

[Baroness Scott of Bybrook]

That the Bill be now read a second time.

[Baroness Scott of Bybrook (Con)]

My Lords, I am very pleased to bring this Bill to the House. It will bring clarity and certainty to our statute book on the law on discrimination in employment. The Bill was piloted through the House of Commons by John Glen, the Member for Salisbury. It received a very full debate on Second Reading, with 11 Back-Bench speakers.

The Bill is extremely straightforward and consists of a single operative clause. It repeals Sections 146(4) and 147(3) of the Criminal Justice and Public Order Act 1994, now defunct provisions that preserved the right to dismiss a seafarer on a UK merchant ship on the grounds of homosexual conduct. The Bill had a minor amendment made to it at the Commons Committee stage to bring forward commencement to the day on which the Act is passed rather than the standard two months. It went through its Report stage unamended, although not without a rigorous debate. I am proud to bring forward a Bill which signals clearly our opposition to discrimination. We should be absolutely clear: when it comes to employment either in the Merchant Navy or anywhere else, what matters is your ability to do the job, not your gender, age, ethnicity, religion or sexuality.

I will take a moment to outline the background to the Bill. Sections 146 and 147 of the Criminal Justice and Public Order Act 1994 repealed the clauses in the Sexual Offences Act 1967 which made homosexual activity within the Armed Forces and on Merchant Navy vessels a criminal offence. Sections 146(4) and 147(3) of the 1994 Act, the subsections repealed by this Bill, state that nothing in them would prevent a homosexual act from constituting a ground for dismissing a member of the crew of a UK merchant ship from his ship. These sections were added to that Bill following non-government amendments during the Lords Committee stage following concerns about the effect of that Act on the dismissals policy of the Armed Forces and the Merchant Navy. During the passage of the 1994 Act, members of both Houses noted the anomaly that there were no equivalent provisions for heterosexual activity taking place on board a ship, highlighting a concern about employment discrimination even then.

It is important to be clear that the provisions in the 1994 Act are no longer of any legal effect, not least due to the provisions of the Equality Act 2010 and the regulations made under it as well as relevant Northern Ireland regulations. The equivalent provisions for the Armed Forces in the Criminal Justice and Public Order Act were struck down by the ECHR in Smith and Grady v United Kingdom in 2000.

While the provisions of the 1994 Act have now been legally superseded, there are still four good reasons to pass this Bill. First, it is symbolic. These provisions are believed to be among the last remnants of legislation on our statute book which penalise homosexual conduct and include a provision that applies to homosexual individuals but not to heterosexual individuals. In passing this Bill, we have the opportunity to state clearly and unequivocally that what matters in employment is someone’s ability to do the job and nothing else, and that there is no room today for employment discrimination. Secondly, it delivers on the commitment made by the Government during the passage of the Armed Forces Act 2016 to deal with the Merchant Navy provisions in just the same way as the Armed Forces provisions when that legislation was passed. Thirdly, it gives reassurance. An individual could easily look up the Criminal Justice and Public Order Act 1994 online and be concerned or misled by its apparent provisions. By removing these provisions from the statute book, we can provide clarity and prevent any misunderstanding as to the current state of the law. Fourthly, this Bill would tidy up the legislation. Members of the House of Commons described the Bill as a “useful tidying-up exercise”. It would make the status of our current employment law absolutely clear and give reassurance to anyone who was in doubt about it.

The Bill is supported by the UK Chamber of Shipping, the industry body for the Merchant Navy; the RMT, the industry union; and by long-standing gay rights campaigner Peter Tatchell. It enjoyed cross-party support in the House of Commons and is supported by the Government. I hope that we will be able quickly and easily to pass this short but important Bill into law. I beg to move.

14:47

[Lord Lester of Herne Hill (LD)]

My Lords, like the noble Baroness, Lady Scott of Bybrook, I congratulate John Glen MP on his success in the other place in navigating this Bill through all its stages with government and cross-party support. The Liberal Democrats warmly welcome the Bill and hope that it will rapidly become law. By repealing Sections 146(4) and 147(3) of the Criminal Justice and Public Order Act 1994, it completes the removal of archaic and unjust provisions that penalised homosexual activity.

This year is the 50th anniversary of Leo Abse’s Private Member’s Bill which became the Sexual Offences Act 1967. It came 10 years after the Wolfenden report recommended reform. The Act abolished the crime of sexual love between two men over the age of 21 in private. It had crucial support from the then Home Secretary, Roy Jenkins, but the path of reform has been long and tortuous and has required intervention from the European Court of Human Rights and the European Union.

The 1967 Act did not apply to Northern Ireland. It required a judgment by the Strasbourg Court in Jeffrey Dudgeon’s case to persuade Parliament to abolish the offence in Northern Ireland. The 1994 Act repealed the clauses in the 1967 Act that made homosexual activity in the Armed Forces and on Merchant Navy vessels a criminal offence, but clauses were introduced in this House that provided that nothing in the 1994 Act would prevent homosexual activity constituting grounds for dismissal. The clauses were approved in Committee by a Division on 20 June 1994.

The Strasbourg court ruled in 2000 in the Smith and Grady case that the provisions of the 1994 Act violated the right to respect for private life under a policy that involved investigating whether personnel were homosexual or had engaged in homosexual activity. If so, they were discharged. EU employment equality directives and the Equality Act 2010 dealt with the problem, but the offending provisions remain, disfiguring the statute book. As the Minister in the other place, Andrew Jones MP, said, the Bill,

“addresses a historical wrong and the inadequacy of legislation to keep pace with our culture”.—[Official Report, Commons, 20/1/17; col. 1240.]

When I became a Member of the House in November 1993, it was deeply homophobic. Section 28 of the Local Government Act 1988 was in force. Among other things, it forbade local authorities from,

“teaching in any maintained school of the acceptability of homosexuality as a pretended family relationship”.

Tony Blair’s Labour Government tried to repeal it, with strong Liberal Democrat support, but the Government were defeated on 7 February 2000 by a campaign led by Baroness Young. I spoke in favour of repeal. The House also rejected lowering the age of consent to that of heterosexual couples. Baroness Young was supported not only by Conservatives and some Labour Peers, but by religious groups, including the Salvation Army, the Christian Institute, the African and Caribbean Evangelical Alliance, the Muslim Council of Britain, the Chief Rabbi Dr Jonathan Sacks—now the noble Lord, Lord Sacks—and Orthodox Jews, groups within the Catholic Church and the Church of England, and several retired Law Lords. She was also supported by the Daily Mail, the Sun, and the Daily Telegraph. They claimed that Section 28 protected children from predatory homosexuals and from advocates seeking to indoctrinate young people into homosexuality.

After the death of Baroness Young and with the appointment of a new liberal generation of life Peers, mainly by Tony Blair, organised opposition in the Lords was weakened. The House finally voted in favour of repeal in 2003, a year after I introduced my Civil Partnerships Bill, which led to the Blair Government’s Civil Partnership Act 2004.

David Cameron’s politically acrobatic record illustrates how times have changed for the better. In 2000, he opposed the repeal of Section 28 and accused Tony Blair of being against family values and of,

“moving heaven and earth to allow the promotion of homosexuality in our schools”.

In 2003, he voted against the repeal of Section 28. A year later, he supported civil partnerships for same-sex couples. In 2009 he apologised for having supported Section 28. In 2013 he supported same-sex marriage, but it is still not allowed in Northern Ireland.

In her important and timely book, The Enemy Within, the noble Baroness, Lady Warsi, recalled how her party had rabble-roused the party faithful at conferences and meetings against gay people and enacted legislation that stigmatised them from birth. She wrote that she was deeply ashamed of having been homophobic at a time when homophobia was a so-called “British value”. The noble Baroness and her colleagues were not alone. Homophobia was not and is not confined to the Conservative Party and it is driven, here and abroad, by the ideology of orthodox clerics and their adherents in the three Abrahamic religions—Judaism, Christianity and Islam. When this Bill becomes law it will rid the statute book of an ugly relic from a bigoted past, but it will not, of course, end the culture of intolerance of gay love.

14:54

[Lord Black of Brentwood (Con)]

My Lords, this is the second time in recent weeks that we have had the opportunity to consider an extremely short Bill, the significance of which is out of all proportion to its length. Unlike the other one, this is a Bill I can wholeheartedly support.

I congratulate my noble friend Lady Scott on shepherding the Bill through this House and thank my good friend John Glen for introducing this important measure in the first place. My noble friend Lord Lexden, who is a stalwart champion in this House of LGBT+ rights, had hoped to be here to support it, but is detained elsewhere. He has asked me to say how strongly he backs this measure.

Although we are dealing here with the Criminal Justice and Public Order Act 1994, this legislation, as the learned noble Lord, Lord Lester, said, is intimately connected with the Sexual Offences Act 1967. Many LGBT+ people are this year commemorating the passage of that landmark legislation exactly 50 years ago. There can be no better way to mark it than to remove from the statute book what undoubtedly is the very last statutory provision penalising homosexuality. Although the statute book will now be clear, as the noble Lord said, its application across the United Kingdom is not yet complete. We have to remember that gay men and women cannot marry in Northern Ireland. It has been a long journey from Wolfenden, at a time when gay men were criminalised, second-class, often outcast citizens, to the complete removal in law of any form of discrimination. That makes this Bill something of a red-letter day for all those who have campaigned tirelessly for justice and equality for LBGT people and against intolerance.

There is a lot to commend this short Bill. As my noble friend said, it tidies up legislation, which is always a good thing. We should spend more time in this way getting rid of outdated laws that have not kept pace with social change, rather than putting new ones on to the statute book. The Bill will remove any remaining ambiguity in the law. Even though, as we have heard, the provisions of the 1994 Act have no legal force, their policy implications are ambiguous and it is right to get rid of them. It might not affect a great number of individuals, but this measure removes any perception of a threat of legalised persecution, particularly for LGBT seafarers. But above all it is of totemic importance. By repealing an odious law that should never have defaced the statute book, it sends out a powerful signal to all individuals, regardless of their sexual orientation, that this House is committed to justice and equality, to tackling prejudice and intolerance, and to bringing an end to any form of discrimination.

Even more importantly, and this is the central point I want to make, I believe it will carry forward a vital message beyond our shores and act as a continuing beacon of hope for LGBT+ people around the world who live in countries that continue to criminalise them and to discriminate against them, often in the most barbaric and degrading ways—a human tragedy that this House has often effectively addressed. Those people, many of whom are fighting for justice in their own countries, rightly see this Parliament as a staunch defender of their rights—indeed, there is no more stalwart champion of that cause than the noble Lord, Lord Lester. They look to us for continuing inspiration in their struggles. After all, it was the UK that bequeathed the horror of criminalisation to much of the Commonwealth, along with a number of other odious laws such as criminal defamation. The significance of this Parliament continuing to root out discriminatory legislation and get rid of it cannot be overstated. That is why the impact of this tiny piece of legislation goes well beyond the issue of sexual relations between sailors.

In one of the debates we had about Turing and the whole issue of posthumous pardons, I mentioned that I had recently reread EM Forster’s great novel Maurice, which centres largely on the issues of historical importance raised by the Bill. Forster’s characters, one of whom was imprisoned for an act of so-called gross indecency, lived in the shadow of that terrible injustice. All those, including merchant seamen, who were sentenced to imprisonment with hard labour around the time that novel was written died with the shame of a criminal record, which is why Forster said on the front page of that masterpiece, “This book is dedicated to happier times”. For people such as him and those ordinary people he wrote about, on land and on the high seas, happier times never arrived. However, they are here now and the Bill allows us to complete a long, tough and most noble journey.

15:00

[Lord Rosser (Lab)]

My Lords, this Bill has a certain Wiltshire flavour, since it was taken through the Commons by the Member of Parliament for Salisbury and is being taken through this House by the noble Baroness, Lady Scott of Bybrook, whom I congratulate on doing so. My connections with Wiltshire are not exactly remote either.

The Bill is brief and to the point. Indeed, it is one of those Bills where the Explanatory Notes contain significantly more words than the Bill, but in this case it is not because the way that the Bill is worded makes it difficult to follow or understand. The Bill repeals Sections 146(4) and 147(3) of the Criminal Justice and Public Order Act 1994, which states that, while not a criminal offence, homosexual acts would be sufficient grounds for dismissal in the Merchant Navy.

The references in the 1994 Act to homosexual acts in the Armed Forces were removed under the Armed Forces Act 2016, but as that Act relates to the Armed Forces it could not also be used as a vehicle for repealing the references in the 1994 Act to the Merchant Navy. Consequently, the provisions in the 1994 Act in relation to the Merchant Navy remain on the statute book and still need to be repealed despite no longer having legal effect, hence this Bill. The provisions in the 1994 Act no longer have legal effect, because while the sections concerned allow for the dismissal of a member of the crew of a merchant ship on the grounds of homosexual acts, more recent legislation, including the Equality Act 2010, means that such a dismissal would now be illegal.

The two sections of the Criminal Justice and Public Order Act 1994 which this Bill repeals are the last such provisions penalising homosexual activity to be found on our statute book. I understand, as I think has been confirmed already today, that they were added to the 1994 Act, initially against the wishes of the then Government, following a Division during the Committee stage in this House.

The noble Baroness, Lady Scott of Bybrook, has set out the reasons why the provisions in the 1994 Act should be repealed even though they no longer have legal effect. I do not intend to repeat the reasons, but I agree with them.

As has been said, the Bill could be regarded as symbolic because the provisions it repeals have no legal effect. It is much more than that, though. We simply should not retain on the statute book provisions that are the exact opposite of the values, standards and priorities of our society today; and in this specific instance, it is that there can be no place for discrimination on the basis of sexual orientation. I do not intend to detain the House any longer. This House played a big part in putting these provisions into the 1994 Act. Let us get on with taking the right and just action now by repealing them through giving our wholehearted support to this Bill.

15:03

[The Parliamentary Under-Secretary of State, Department for Transport (Lord Ahmad of Wimbledon) (Con)]

My Lords, I thank my noble friend Lady Scott for bringing forth this Bill on this important issue—the contributions during this short debate have illustrated that poignantly. My noble friend set out in detail why it is right that we should progress. I am grateful also to my noble friend Lord Black and the noble Lords, Lord Lester and Lord Rosser, for their contributions.

Although the Bill has limited practical effects, as all noble Lords have acknowledged, and does not change the rights and responsibilities of any person today, it has deeply symbolic importance. As was said by my ministerial colleague on Second Reading in the other place,

“the laws that we pass in this place and that form our statute book represent”—

in a very real sense—

“the established morals and values of our country. It is right therefore that when the statute book contains wording that is inconsistent with those values we should change that wording. For that reason, the Government are happy to state now, formally, that we support this measure”.—[Official Report, Commons, 20/1/17; col. 1236.]

Noble Lords will also understand that when the Government decide to support a Private Member’s Bill, they undertake an analysis of whether it is compatible with the rights enshrined in the Human Rights Act. I am happy to confirm for the record that, in my view, the provisions of this Bill are totally compatible with those rights.

My noble friend Lady Scott has spelled out the proceedings that took the Bill out of the other place and bring it before us today. I do not intend to detain the House further in that respect. However, it is interesting to note in respect of the Wiltshire connection that the Bill was taken through the other place by my honourable friend John Glen, who is the MP for Salisbury, and that it was Viscount Cranborne—now the noble Marquess, Lord Salisbury—who took the Criminal Justice and Public Order Act through this House in 1994. I am glad to see the continuing interest of the good people of Salisbury in this issue.

I want to take a few minutes to explain briefly the history behind the provisions that the Bill seeks to remove. The Criminal Justice and Public Order Act 1994 was a significant milestone in the development of LGBT rights in the United Kingdom. The Act is the last UK Act to have a whole part entitled simply, “Homosexuality”. As the noble Lord recounted earlier, it was responsible for reducing the age of homosexual consent from 21 to 18. It also removed some of the last remaining criminal liability for acts of homosexual sex. Sex between adults of the same sex was generally decriminalised by Section 1 of the Sexual Offences Act 1967, but that Act maintained criminal liability for homosexual sex that was contrary to military discipline or occurred on board a merchant ship. That liability was removed in the 1994 Act by Section 146(1), (2) and (3), for England, Wales and Scotland, and by Section 147(1) and (2) for Northern Ireland. However, the sections that we are dealing with today, Sections 146(4) and 147(3), were added during the passage of the Bill following amendments made by a Member of your Lordships’ House—a point already acknowledged by noble Lords.

Of course, time has moved on. We heard a poignant history of how this House, the other House and society have moved on. The noble Lord, Lord Lester, recounted the history of how the rights of individuals have increasingly been protected. It is right that we move forward in line with history and in line with society today.

As I mentioned earlier, the sections in question are of no current effect. Moreover, any attempt to discharge a member of the UK Merchant Navy from their employment on the basis of their sexuality would now be unlawful by reason of equality legislation. My noble friend Lord Black mentioned Alan Turing. I remember from this very Dispatch Box responding to the Private Member’s Bill in the name of the noble Lord, Lord Sharkey, who is not in his place. I recognise his efforts in that respect as we move forward in the right vein. Today, we shall do so again.

Sections have become shorter as time has gone on. Sections 146(4) and 147(3) of the Act have been progressively repealed, most recently by the Armed Forces Act 2016, which removed all references to Armed Forces. The Government could not do anything about provisions relating to the Merchant Navy in 2016 because, despite the name, the Merchant Navy is not part of the Armed Forces. Such an amendment could not be made out of scope. Nevertheless, the Government committed that they would address this point as soon as possible. At this juncture, I can only congratulate my noble friend on beating the Government to it.

We have reached a stage where the provisions in the 1994 Act refer only to the Merchant Navy and they are in any event defunct. Despite that, the policy behind the current statutory wording is unambiguous. It amounts to a statement that homosexual conduct per se is incompatible with employment on merchant vessels. Getting rid of that statement is a wholly laudable aim and I applaud my noble friend and all noble Lords here for supporting it today. It may be true that this measure is symbolic, but as my noble friend Lady Scott has made clear, there are very good reasons to support symbolic measures, including because they give clarity and tidy up the statute book, but also because, as I said at the start of my speech, the laws that are in force in the United Kingdom in 2017 should reflect the values of our great country in 2017. The Bill will do exactly that, and for that reason I hope that it can make rapid progress today and receive the support that it truly deserves.

[Lord Swinfen (Con)]

I quite understand that the Bill will apply to British ships in British waters and elsewhere in the world, but what is the position with foreign-flagged ships that happen to be in British waters when the homosexual act takes place? Their foreign laws may not apply in the same way that ours do.

[Lord Ahmad of Wimbledon]

I acknowledge my noble friend’s point. Of course, ships are reflective of the flag under which they are registered. In terms of specifics and in terms of territories, when they are in Britain they should reflect the laws of our land, especially laws relating to British territorial waters and British land. I will write to my noble friend on the issue and share that with all noble Lords.

15:10

[Baroness Scott of Bybrook]

My Lords, I thank all noble Lords across the House who have spoken today and who have shown such great interest in this little Bill and welcomed it so warmly. It is a small Bill but, as has been said a number of times, it is symbolically a very big Bill. Thank you for your support. I ask the House to give the Bill a Second Reading.

Bill read a second time and committed to a Committee of the Whole House.