Merchant Shipping (Homosexual Conduct) Bill

Debate between Andy McDonald and John Glen

3rd reading: House of Commons & Report stage: House of Commons
Friday 24th March 2017 Commons Chamber

[John Glen (Salisbury) (Con)]

I am sincerely grateful to my hon. Friend the Member for Christchurch (Mr Chope) for tabling this amendment; I understand his honourable intentions behind it, and I have carefully reflected on it over recent weeks. My hon. Friend has put his case well, and I acknowledge the attraction of the logic, which says, “If we think this should not be on the statute book now, do we think it should never really have been there in the first place?”

I also acknowledge the deep injustice that an individual would feel in being dismissed under provisions that are later superseded. That injustice has been tackled in the other cases of legislation penalising homosexual activity, for example in the Turing clause in the Policing and Crime Act 2017, which allowed for the pardon of those convicted of sexual acts that are no longer illegal.

There may be a place for providing some level of redress or apology to those who were dismissed from the merchant navy on grounds of homosexual conduct, but that cannot be provided for in this Bill. That is because a system of redress would need to be carefully designed and calibrated, in a similar way to the Turing provisions, to ensure that acts that are still cause for dismissal were not eligible for apology or compensation. Sadly, the capacity for the scrutiny that such legislation would require does not exist within the tight timings involved in the private Member’s Bill system.

However, in the absence of a full system for investigation and redress, a retrospective repeal creates unnecessary legal ambiguity over dismissals that would clearly have been legal at the time without creating a clear opportunity for redress or apology. As I have said, the aim of this Bill has always been to create clarity and certainty going forward, and that aim would be frustrated if we were to create an ambiguity about the legality of some possible dismissals until the provisions were legally superseded by the Equality Act 2010.

I also have a deeper concern, however. As has been discussed, the House has generally been extremely cautious about any form of retrospective legislation, and particularly so in the case of legislation that creates an offence or penalty where none existed at the time—something that is deeply inconsistent with the rule of law. As I have said, my hon. Friend’s amendment could retrospectively render the actions of merchant navy employers illegal.

Retrospective legislation has occasionally been used, very sparingly, to validate or authorise retrospectively actions that were illegal at the time. The motivation for including sections 146(4) and 147(3)—which would be repealed by my Bill—in the Criminal Justice and Public Order Act 1994 was to enable merchant navy employers to dismiss seafarers for homosexual conduct even though the 1994 Act decriminalised such conduct. We need to remember that the relevant sections apply to employers and not to seafarers. The amendment proposed by my hon. Friend the Member for Christchurch does not authorise conduct found to have been illegal at the time, and therefore does not fit with recent precedents of retrospective legislation.

My hon. Friend the Member for Christchurch has discussed with me privately the one rare possible precedent in which criminal liability was created retrospectively, through the War Crimes Act 1991. With respect to him, I have looked into the matter carefully and found that that Act allowed domestic criminal proceedings to be brought against British citizens who had committed war crimes in Germany during world war two. That was because there was no provision for the extradition of British citizens to face international law proceedings. The Act was a response to a practical problem of the operation of international law, where an offence already existed. I do not believe that my hon. Friend’s amendment falls into that category. I respect the fact that he did not mention it this afternoon, and I want to express my respect for his having a conversation with me on the matter. I contend that the amendment is not covered by that precedent.

I have two more practical concerns. The first is that the other place has perhaps even more discomfort with retrospective legislation than does this House. That was demonstrated during the passage of the War Crimes Act 1991, which the then Government had to use the Parliament Act to enact. I worry that, if the amendment were carried, the Bill would be amended again in the Lords and then lost altogether, as there would be no days available for ping-pong.

My second point is that, during the passage of the Bill I have enjoyed the warm support of the Government. The Department for Transport has kindly provided the explanatory notes to the Bill. I understand that the Government do not sponsor any retrospective legislation unless a lengthy procedure is undertaken to examine all possible effects. I have been told that they will undertake no such procedure in this case. I fear that the Bill could be lost without the support of the Government.

I should like to thank my hon. Friend the Member for Christchurch for tabling his amendment and for the serious scrutiny that he has undertaken of this Bill and others. I should like to express my sincere respect for his intentions in doing so, but I also appeal to him to withdraw his amendment so that we can pass a Bill that provides legal clarity and certainty in the place of ambiguity.

[Andy McDonald (Middlesbrough) (Lab)]

Let me begin by briefly addressing the amendment to clause 2 of the Bill made in Committee, which we supported there. It is right that the Bill should come into force immediately on receiving Royal Assent, rather than at the end of two months. The sooner this change to the law is made, the better. In that spirit, let me move straight to the amendment tabled by the hon. Member for Christchurch (Mr Chope). Labour appreciates that the amendment is well intentioned. We also acknowledge that it is, in principle, certainly right to seek redress for any members of the merchant navy who were dismissed on the ground of homosexual conduct between the passing of the Criminal Justice and Public Order Act 1994 and the Equality Act 2010. None the less, retrospective legislation is set into law only in rare and exceptional circumstances, and we do not believe, on this occasion, that voting for this amendment to the Bill would be appropriate.

My hon. Friend the brilliant Member for Cambridge (Daniel Zeichner) pointed out in Committee that, as the provisions to be repealed are now legally null and void, this Bill is a simple, symbolic gesture that will tidy up existing legislation. Accordingly, the Bill does not aim to provide redress for those members of the merchant navy affected by the provisions to be repealed, so the amendment tabled by the hon. Gentleman does not fit with the purpose of the Bill. Labour will therefore not be supporting the amendment today.