Merchant Shipping (Homosexual Conduct) Bill

David Nuttall Excerpts

2nd reading: House of Commons
Friday 20th January 2017 Commons Chamber

[John Glen (Salisbury) (Con)]

I beg to move, That the Bill be now read a Second time.

I am very pleased to bring the Bill to the House because, by repealing sections 146(4) and 147(3) of the Criminal Justice and Public Order Act 1994, it completes the removal of historical provisions that penalised homosexual activity. I am proud to do so because of my commitment to justice and opposition to unjustified discrimination.

When it comes to employment, in the merchant navy or anywhere else, what matters is a person’s ability to do the job—not their gender, age, ethnicity, religion or sexuality. Hon. Members across the House share that commitment. Many will be surprised—astonished, even—to learn that this anomaly still remains on the statute book. There is no place in our society today for employment discrimination on the basis of sexual orientation, through which one provision applies to heterosexual individuals and another to homosexual individuals. The Bill repeals the now defunct provision that authorised the dismissal of a merchant seaman on the grounds of homosexual conduct. It is the last such provision penalising homosexual activity that remains on our statute book, and it should be removed.

The repeal of historic provisions that penalised homosexual activity started with the Wolfenden report in 1957. That landmark report argued for the decriminalisation of homosexual conduct. It was not universally popular at the time, attracting criticism from across the party political divide, but it wisely saw that private, consensual sexual behaviour was not a matter for the law. The internal debates within the Wolfenden committee were mirrored in the wider public debate; the debate between Professor H. L. A. Hart and Patrick Devlin, later Lord Devlin, was studied as a matter of course by law students. That debate is instructive to this Bill as it sets the entire tone for how we think about the law in the area of private sexual behaviour.

Lord Devlin took the view that the enforcement of morals was a proper function—even the primary function—of law. He was right to the extent that the law cannot be divorced from morality; it has an interest in what is good and in identifying wrongs that should be dealt with in society. However, he was wrong to imagine that, essentially, if the majority of people in society thought that something was morally wrong, it should be illegal. H. L. A. Hart took the view that the reality is more complicated than that—that there is a private sphere where the law should not run. The Wolfenden report set out that, as a matter of principle, sexual acts between consenting adults were not, in fact, a matter for the law.

It may sound initially as if Devlin’s view is the more Conservative, but actually Hart saw that there is a distinction between the state and society: they are not the same thing. Governments may protect and create the conditions for a flourishing society, but they do not intervene in every area unless there is a very good reason. The late Mrs Thatcher drew the same distinction in her misunderstood dictum that there is no such thing as society. There is no such thing as society that is different from the institutions of family, individuals, businesses and other civic organisations.

[Mr David Nuttall (Bury North) (Con)]

My hon. Friend mentions what must be one of the most frequently referred to of the late Mrs Thatcher’s quotations: that about there being no such thing as society. Has he ever looked up the full Woman’s Own quote, which lends itself to an interpretation completely different from the one usually ascribed to it?

[John Glen]

I am grateful to my hon. Friend for correcting the misunderstanding about that quote. He is absolutely right that it is a total misrepresentation of what the late Mrs Thatcher was trying to say.

It is worth noting that the Wolfenden committee broke new ground, as it was the first time openly homosexual citizens in this country gave evidence to a Government committee. It is perhaps evidence of how contentious the Wolfenden report was at the time that it took a further 10 years before its recommendations were implemented and decriminalisation took place in the Sexual Offences Act 1967.

The Criminal Justice and Public Order Act 1994—the Act that the Bill is concerned with—was seen at the time as a liberalising Act, mainly because it reduced the age of consent for homosexual activity. In addition, sections 146 and 147 repealed the clauses in the 1967 Act that made homosexual activity in the armed forces and on merchant navy vessels a criminal offence. That was done, however, partially because of the anomaly that an individual could not be prosecuted under criminal law but could be prosecuted under service law for that same offence.

However, sections 146(4) and 147(3), which I hope the Bill will repeal, specifically required that nothing in the Act should prevent homosexual activity from constituting grounds for dismissal. They were added to the Act through non-Government amendments during the House of Lords Committee stage. Those amendments were supported by peers who wished to have the then policy on administrative dismissal in the armed forces on the face of the Act. The amendments were initially resisted by the Minister at the time, but they were pressed to a Division, which the Government lost. So although the criminal penalty was taken away, discrimination on the grounds of sexual orientation remained. During the passage of the 1994 Act, the anomaly that there were no equivalent provisions for heterosexual activity on board a ship, for example, was pressed by some Members of this House and the other place.

The equivalent provisions for the armed forces in the 1994 Act were struck down as a result of a European Court of Human Rights case in 2000. In Smith and Grady v. the United Kingdom, the Court found against the armed forces policy at the time of investigating whether personnel were of homosexual orientation or had engaged in homosexual activity and of pursuing administrative discharge as a matter of policy if that was found to be the case.

The case raised a number of issues relating to the place of homosexual men and women in the armed forces, but I want to touch on one aspect in particular: bullying. The submissions to the Court during the case argued that one reason for the armed forces policy at the time was the threat of

“assaults on homosexuals, bullying and harassment of homosexuals, ostracism and avoidance”.

The ECHR responded, as we would today, by arguing that that should be dealt with robustly through clear codes of conduct, complaint procedures and training programmes, in the same way as racial and sexual harassment or bullying. In its decision, the Court said:

“The Court considers it important to note, in the first place, the approach already adopted by the armed forces to deal with racial discrimination and with racial and sexual harassment and bullying…The January 1996 Directive, for example, imposed both a strict code of conduct on every soldier together with disciplinary rules to deal with any inappropriate behaviour and conduct. This dual approach was supplemented with information leaflets and training programmes, the army emphasising the need for high standards of personal conduct and for respect for others.”

As a result of that judgment and the implementation of appropriate codes and procedures to tackle bullying and harassment of homosexual servicemen and women, the armed forces are clearly not today as they were at the time of that case; nor is the merchant navy.

However, despite that very positive development in recent years, we need to acknowledge that homophobic bullying is still a live issue today, particularly in schools. No one should be assaulted, bullied or harassed as a result of their sexual orientation, and it is important to recognise that such things can be particularly damaging when they happen among one’s close peers in such a crucial and formative environment.

I am pleased the Government have made £2.8 million available to tackle homophobic bullying. The programme funded by this additional money began in September 2016 and will run to March 2019 to prevent and respond in a sustained way to homophobic bullying across primary and secondary schools in England. As part of the programme, which will build on the previous £2 million grant, which was announced in October 2014, the Government are funding six initiatives that will deliver whole-school approaches and staff training to help prevent and tackle homophobic bullying. I hope that the passage of the Bill today, in reaffirming that there is no place for discriminatory employment practices, will also send a clear signal that homophobic bullying and harassment are completely unacceptable.

The firms that constitute the merchant navy were not actually within the scope of the 2000 Smith and Grady v. the United Kingdom case, because they were private employers, and cases brought in respect of European convention rights are brought against Governments rather than private individuals or entities.

The provisions relating to the merchant navy were eventually superseded by the Employment Equality (Sexual Orientation) Regulations 2003, which integrated into UK law EU equal treatment directive 2000/78/EC.

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[John Glen]

The hon. Gentleman makes a very wise observation. That is absolutely critical, which is why I have spent time setting out the background, to show that this is the conclusion of a journey that this country has been on for essentially 60 years.

By removing the distinction and applying the provisions to all individuals, passing the Bill will affirm this House’s commitment to justice and equality and show that there is no place in society for discrimination on the basis of sexual orientation. What matters in employment is the ability to do the job, nothing else. And what matters in society is how you can contribute and serve others, not your background, race or sexuality.

Secondly, the Bill completes the process, started by the Armed Forces Act 2016, of repealing those provisions. As a result, it delivers on the commitment made during the Act’s passage to introduce legislation to deal with the merchant navy provisions in just the same way as the armed forces provisions.

Thirdly, the Bill gives reassurance. At the moment, an individual could look up the Criminal Justice and Public Order Act 1994 online and be alarmed or confused that it apparently allows for the dismissal of a seafarer in the merchant navy on grounds of homosexual conduct. As I have said, although those provisions have already been superseded, that is not clear from an initial reading of the 1994 Act itself. Rather, someone would have to already know about the Employment Equality (Sexual Orientation) Regulations 2003 or the Equality Act 2010 (Work on Ships and Hovercraft) Regulations 2011.

Fourthly, the Bill will tidy up legislation. Our statute book is complex enough without the retention of defunct and superseded provisions. Apart from anything else, this Bill is a useful tidying-up exercise to make the status of the current law regarding employment discrimination absolutely clear, and, as I have explained, it gives important reassurance to anyone who might be concerned about an apparent provision in our law.

The Bill is very straightforward, with a single clause that simply repeals sections 146(4) and 147(3) of the Criminal Justice and Public Order Act. The territorial extent of the Bill is throughout the UK.

[Mr Nuttall]

Does my hon. Friend agree that the size of a piece of legislation has nothing to do with how important it may be, and that a one-line Bill could have a far bigger impact on society than a Bill that is 100-pages long?

[Philip Davies (Shipley) (Con)]

Article 50.

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[Philip Davies]

I am grateful to my hon. Friend for drawing attention to my place on the Women and Equalities Committee, of which I am very proud. In fact, I am rather touched that my candidature for the Committee was so popular that nobody even wanted to oppose me in the election. My hon. Friend is absolutely right; in fact, I believe in equality so much that I would rather the Committee were renamed the Equalities Committee, as it shadows the Government Equalities Office.

I do believe in equality. That is the agenda that I want to pursue on the Committee, and my hon. Friend is right: this issue is a key part of that. In fact, we should always make it clear that nobody should ever be discriminated against on the basis of their gender, race, religion or sexuality. All those things should be irrelevant; we should be blind to them. That is the agenda that I want to pursue and I hope that the passing of this Bill will help in that. My hon. Friend the Member for Milton Keynes South talked about a journey, and that is the journey I want to see, where we do not see everything in terms of race, gender, sexuality or religion, but are completely blind to them and see them as irrelevant. This Bill is part of that journey.

As I hope I have indicated, the Bill clearly has support from across the House. I want to make it clear from the outset that I, too, will support it, should there be a Division. I am here to try to aid its passage through the House; I am certainly not here to try to block it. However, it would not be unreasonable for somebody to say that this Bill is a solution looking for a problem, in the sense that, oddly, it would bring about no tangible change in the law, so to speak, because subsequent legislation has effectively made the sections in question unenforceable and therefore already redundant. As the Library briefing for the Bill states:

“The Bill would repeal aspects of the Criminal Justice and Public Order Act 1994 which suggest it would be lawful to dismiss a seafarer for a homosexual act. That law is in fact of no effect, as such a dismissal would fall foul of equality legislation. The current Bill is therefore primarily of symbolic value.”

Even the explanatory notes from the Government say that

“the sections are no longer of any legal effect”

and that the policy implication is “ambiguous” at best, pointing out that

“repealing them would both be symbolic and would prevent any misunderstanding as to their current effect,”

but would not change the law per se.

[Mr Nuttall]

It was probably a slip of the tongue, but I thought I heard my hon. Friend mention that the explanatory notes were from the Government, when surely this is a private Member’s Bill.

[Philip Davies]

That is a fair point, but the explanatory notes state that they

“have been prepared by the Department for Transport, with the consent of”

our hon. Friend the Member for Salisbury

“in order to assist the reader of the Bill and to help inform debate on it.”

This is, of course, our hon. Friend’s Bill; that is not in any doubt. My point was that the explanatory notes had been prepared by the Government and their team of experts in the Department for Transport. It is probably fair to say that anyone who is tabling a private Member’s Bill will need the help and support of the sponsoring Department, and will need to tap into expertise that an individual Back Bencher will never be able to muster. I do not think we should carp too much about that particular point.

The aim of the Bill is to tidy up the legislative record and remove legislation that is no longer relevant—I think we can all agree that the existing legislation is absolutely not relevant; in my opinion it was never relevant, but it certainly is not relevant today—and also to clarify the legal position. As was pointed out by my hon. Friend the Member for Milton Keynes South, people could quite easily read the current provisions and presume that they were still law. They might not realise that those provisions had been superseded by measures such as the Equality Act 2010. Although, strictly speaking, the Bill will not make any practical difference in that sense, I think that for those reasons it is worth supporting.

The Bill is straightforward in many respects. It is short. It repeals sections 146(4) and 147(3) of the Criminal Justice and Public Order Act 1994, both of which preserve the right to dismiss a seafarer on a UK-registered merchant navy vessel for an act of homosexuality. Those sections relate not to criminal offences, but only to the right to dismiss a seafarer for an act of homosexuality. It is interesting to note that they do not state that seafarers should be sacked for homosexual acts, but do state that they could be sacked for such acts. That is the law that we are repealing, and rightly so. There is no justification for retaining the current provisions.

Section 146 states:

“Nothing contained in this section shall prevent a homosexual act (with or without other acts or circumstances) from constituting a ground for…dismissing a member of the crew of a United Kingdom merchant ship from his ship”.

Section 147(3) makes identical provision in respect of Northern Ireland.

The Sexual Offences Act 1967 decriminalised homosexual acts in private. Section 1(5), however, maintained that that this did not prevent a homosexual act from being an offence in military law, and section 2 maintained that homosexual acts would also remain an offence on merchant ships. I shall return to that point later, but I want to refer briefly to some case studies, because I think they bring to life the reasons why the Bill is important, and the problems that the existing legislation has caused for people—not abstract problems, but real ones.

It should be noted—because I think this has been an issue in the past—that section 2 refers to a homosexual act on a merchant ship. I believe that not only is the legislation that my hon. Friend seeks to repeal wrong in principle, but in some cases its practical application has stretched far beyond the actual wording. I shall return to that point later as well.

The 1994 Act dealt with homosexuality. Section 145 reduced the age of consent for homosexual acts from 21 to 18, and sections 146 and 147 removed the remaining criminal liability which existed under the 1967 Act. Sections 146(4) and 147(3) were added during its passage. During the passage of the Armed Forces Bill, the Under-Secretary of State for Defence, my hon. Friend the Member for Milton Keynes North (Mark Lancaster), said:

“When sections 146 and 147 were enacted, it was Government policy that homosexuality was incompatible with service in the armed forces and, accordingly, members of the armed forces who engaged in homosexual activity were administratively discharged.”—[Official Report, 11 January 2016; Vol. 551, c. 601.]

That policy was abandoned in January 2000, following the case in the European Court of Human Rights that my hon. Friend the Member for Salisbury mentioned in his opening remarks.

Both sections have been progressively repealed over the years, leaving only the lines that I have just mentioned to be dealt with today. Related sections on military discipline and the sections relating to the armed forces have been repealed through both the Armed Forces Act 2006 and more recently the Armed Forces Act 2016. As Jeremy Hanley said during the passage of the 1994 Bill, as the Armed Forces Minister:

“It would clearly be anomalous for the situation in the Merchant Navy to be different from that in the armed forces.”—[Official Report, 12 April 1994; Vol. 241, c. 171.]

That, at the time, was the reason for ensuring that the legislation was in line with the current view about the armed forces, and it seems that that that is the position in which we are now left. Back in 1994, the Minister was making the point that it would be an anomaly to treat those in the merchant navy differently, yet here we are trying to tidy the legislation up.

This is not new. On 25 October 1982, Leo Abse, the Labour Member for Pontypool, said in the House:

“How absurd it is that the law should say that a man on a merchant ship can have a relationship with a passenger but that he cannot have such a relationship with a fellow sailor without an offence being committed. Absurdities are buried in the 1967 Act: that was the consensus of that time.”—[Official Report, 25 October 1982; Vol. 29, c. 850.]

I think that Leo Abse made a very good point back in 1982. The Bill has been a long time coming.

As for the distinction between the armed forces and the merchant navy, it is somewhat curious that the whole section was not amended in one go. Why was the distinction made between the armed forces and the merchant navy? Why have we repealed legislation for one but not for the other? It is not that a distinction was made between the two units in respect of how the legislation affects them, but, as my hon. Friend the Member for Salisbury suggested, as the merchant navy is are not part of the armed forces, it was outside the scope of the Bill that became the Armed Forces Bill Act 2016.

During the passage of that Bill, the Minister explained the reasoning, and my hon. Friend the Member for Henley (John Howell) made the following intervention:

“During the evidence session for the Select Committee, on which I served, I asked Mr Humphrey Morrison, from central legal services, whether this could be done.”—[Official Report, 11 January 2016; Vol. 604, c. 600.]

The answer was that it could not. The Under-Secretary of State for Defence, my hon. Friend the Member for Milton Keynes North, said that the issues had been decoupled, that the armed forces would deal with the first bit and the Department for Transport with the second, and that they would move ahead quickly. My hon. Friend’s Bill follows the commitment made by the Government then.

Some Members may take issue with that, and say that it should not have been left to my hon. Friend to deal with the issue through the luck of the draw and the Government should have legislated before now. I hope that when the Minister has the chance to turn his arm over later, he will be able to explain why the Government have left it to my hon. Friend, and not legislated as his colleagues in the Ministry of Defence suggested they would during the passage of the Armed Forces Bill.

Much has been said about this issue, but I think it important to reflect on why homosexual acts were grounds for dismissal in the first place, so that the reasons can be viewed today in that context. One of the best explanations in relation to military life came from my right hon. Friend the Member for Mid Sussex (Sir Nicholas Soames) in 1996, when he was a Defence Minister. He said:

“The current policy of excluding homosexuals from the armed forces is not—I repeat, not—the result of a moral judgment. The prime concern of the armed forces is the maintenance of operational effectiveness and our policy derives from a practical assessment of the implications of homosexual orientation on military life. I do not believe that the services have a right to be different, but I firmly believe that they have a need to be different.”

My right hon. Friend went on to say that military life is different from civilian life, and this was a cross-party view at the time; it was made in the same debate by Dr John Reid—now Baron Reid—from the Labour Benches. My right hon. Friend went on to say in the debate:

“Service personnel are regularly required to live in extremely close proximity to one another in shared, single-sex accommodation with limited privacy and sometimes under stressful conditions.”

He also pointed out that the belief was that those conditions, with

“the need for absolute trust and confidence between all ranks, require that the potentially disruptive influence of homosexual orientation and behaviour be excluded.”—[Official Report, 9 May 1996; Vol. 277, c. 505-06.]

That was the view at the time, and I might add that General Colin Powell, former chairman of the Joint Chiefs of Staff in America, held the same view at the time. He saw sexuality as different from race and sex. He said:

“Unlike race or gender, sexuality…is manifested by behaviour. While it would be decidedly biased to assume certain behaviours based on gender or membership in a particular racial group, the same is not true for sexuality.”

As I have said, this was the view at the time. We consider it to be a ridiculous view to hold. I do not condone or understand those views, but that was the consensus at the time—cross-party, in different countries. It was not unique to this country.

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[Philip Davies]

I am grateful to my hon. Friend, who makes a very good point. The Bill therefore does not just have the advantage of being symbolic and removing something from the statute book that I feel should not have been there in the first place, as he makes a good case for saying why it might well have a practical application in law, too. It certainly removes any doubt about the situation—we can all agree on that—which has to be a good thing.

Finally—I do not want to test the patience of the House too much—let me just raise the concern relating to historical cases. During the debates on the Armed Forces Bill, people raised the issue of historical cases in which individuals had been treated unfairly under the 1994 Act and asked whether something could be done. This touches on the point made by my hon. Friend the Member for Calder Valley when he said that we cannot really do anything about what happened in the past, and what we can affect is what happens now and in the future. Although I wholeheartedly agree with the repeal of the 1994 provisions, I wish to raise a note of caution about the pardoning of historical cases. A private Member’s Bill has been introduced about the whole issue of pardons for those convicted for homosexuality in the past. I am not going to get sidetracked down that road—

[Mr Nuttall]

It is the fourth Bill down today.

[Philip Davies]

Indeed, so we might well get on to that Bill again today. I will maintain a distinction between the two Bills, however, because there clearly is one. My hon. Friend the Member for Beckenham (Bob Stewart) has made a point that shows how powerful contributions can be when we are discussing such details. He said:

“I had the sad duty of discharging a man administratively from my battalion. I really regretted it happening at the time, but I must urge caution about our going back in time to try to put right what was apparently right at the time but which was clearly wrong.”—[Official Report, 11 January 2016; Vol. 604, c. 602.]

He put that very neatly, and I agree. There are plenty of ugly and wrong parts of our past in this country, but we cannot rewrite what happened or impose our beliefs on past generations, just as we would not want people in 100 years’ time to judge what we do today.

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[Mr David Nuttall (Bury North) (Con)]

It is a great pleasure to follow my hon. Friend the Member for North Devon (Peter Heaton-Jones), who reminded us that while this country has, I think it is fair to say, made enormous progress over recent years in removing discrimination, there are still many countries around the world where that is not true. There is much still to be done to ensure that individuals who live in those countries enjoy the same freedoms that we have established for our citizens in the United Kingdom.

I congratulate my hon. Friend the Member for Salisbury (John Glen) on promoting the Bill. It is his second go and he has proved that he has a good track record. The Bill seeks to secure acknowledgment of equality for people of different sexual orientation in the merchant navy.

We have already heard some excellent speeches. My hon. Friend the Member for Calder Valley (Craig Whittaker) spoke of his links to the merchant navy through his father. I must declare an interest along those lines, in that my own brother is a member of the merchant navy. I suspect that, as we speak, he is on board his ship on the high seas.

My hon. Friend the Member for Milton Keynes South (Iain Stewart) made a powerful speech, as other Members have said. He gave his personal view of the Bill and said how important such measures are for him and the gay community in general. My hon. Friend the Member for Shipley (Philip Davies) gave a tour de force of how the legislation has developed over the years.

I am not sure whether my hon. Friend the Member for Salisbury realises how lucky he is that his Bill was first in line for debate today, this far into the parliamentary year of private Members’ Bills. In most other years, a Bill this far down the list would not even have been debated, because other Bills would have been at Report stage. Even though my hon. Friend’s Bill was No. 18 in this year’s ballot for slots for private Members’ Bills, he has had good fortune in the way in which the Bills have fallen and, as luck would have it, his is the first Bill to be debated this morning.

Before I start, I want to mention briefly, in passing, that there is a curious link between both my and my hon. Friend’s constituencies and the merchant navy. It involves the merchant navy class No. 35009 Shaw Savill steam locomotive, which was named after a merchant navy company. Apparently the design drew on British merchant naval heritage. When it was built it was allocated to the Salisbury shed in my hon. Friend’s constituency, but at the end of its life it finished up at Riley and Son Ltd, the locomotive engineers in my constituency of Bury North. Of course, anybody who is expert or who takes an interest in these things—perhaps many have only a passing interest in them—may think that they have heard that name before. I never miss a chance to give a plug to a company from Bury, so this is a great opportunity to mention—

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

It is if it is in scope.

[Mr Nuttall]

The reason that hon. Members may recall having heard the company’s name is that it has recently been in the news for having restored the Flying Scotsman, which is the most famous of all steam locomotives. Were it not for the merchant navy, that steam train would not have existed.

[Mr Deputy Speaker]

Order. Of course I always want to hear about the joys of Bury North and the steam engine, but I want to get you back on track to what we are meant to be discussing. If we can do that, I will have achieved something.

[Mr Nuttall]

I have finished talking about that, Mr Deputy Speaker. I said it just briefly in passing.

Any private Member’s Bill has to be assessed against several criteria, the first of which is: what is it designed to do, and is there a real purpose for it? Having looked at it, I think that this Bill is essentially about clarity. I would like to be clear about what the Bill is and is not designed to do. It is a short Bill that would omit sections 146(4) and 147(3) of the Criminal Justice and Public Order Act 1994, which allow the dismissal of a person from the merchant navy just because they have engaged in homosexual conduct. The lesbian, gay, bisexual and transgender rights campaigner Peter Tatchell has said:

“It is shocking that this exemption from the equality laws remains on the statute books, after so many years of law reform for gay equality. Repeal is long overdue, and most welcome.”

Section 146(4) of the 1994 Act extends to England, Wales and Scotland. Section 147(3) is the equivalent provision in Northern Ireland. The 1994 Act repealed section 2 of the Sexual Offences Act 1967, which stated—in, I hasten to add, the language that was used at the time—that “buggery” and “gross indecency” by a member of crew on a merchant navy ship constituted an offence. However, the 1994 Act explicitly maintained that homosexual conduct could be used as a ground for dismissal. Section 146(4) states:

“Nothing contained in this section shall prevent a homosexual act (with or without other acts or circumstances) from constituting a ground for dismissing a member of the crew of a United Kingdom merchant ship from his ship.”

It is interesting to look back in Hansard at the objections that were raised against decriminalising the offences set out in section 2 of the 1967 Act. During the debate on the Bill in the other place on 10 May 1966, the Earl of Kilmuir quoted objections from seafarers’ organisations that believed that homosexual conduct could lead to “dissension” among the crew, and even to “violence”.

In the book “Hello Sailor! The Hidden History of Gay Life at Sea” by Jo Stanley and Paul Baker, which was published in 2003, the authors discussed the problem faced by gay crewmen in the merchant navy. They wrote:

“In the 1950s…all gay men were, to an extent, part of an anti-society, but this was even more apparent in the Merchant Navy, where being gay could result in dismissal or transfer.”

As I think my hon. Friend the Member for Milton Keynes South said in passing, this was a genuine fear of being dismissed. Homosexual crew men were so frightened of being discovered that they communicated in a slang code—a form of secret code—that they called Polari. Apparently, its name comes from the Italian word “parlare”, which translates as “to talk”. Those are snapshots of a different attitude from a different era. The provisions in the 1994 Act remind us of what things were like in the 1950s, and I suggest that that is evidence for why they have no place on the statute book in the 21st century.

The next factor I look at when considering a private Member’s Bill that comes before the House on a Friday is how big the problem is that the Bill seeks to address: having established that there is a problem, how big is it? For this Bill, the question is: how many merchant navy crewmen would it affect? In the book “Maritime History and Identity: The Sea and Culture in the Modern World” by Duncan Redford, published in 2013, it is observed that one of the practical obstacles for shipping lines wanting to dismiss homosexual crewmen was that demand for stewards exceeded supply, and a total dismissal of gay or bisexual workers

“would have decimated the workforce and made ships inoperable.”

The short answer to the question of how many have been dismissed even in recent times is, I suspect, either not many or perhaps no one.

The maritime news website Lloyd’s List stated in an article about the Bill we are now considering posted on 6 July:

“Both shipping employers and shipping unions said…they were unaware of anyone losing a job on such grounds, at least in recent decades.”

I must confess—I am pleased to say this—that it is not an issue that has been raised with me as a constituency MP. I would be interested to know whether other hon. Members in the Chamber have had constituents raising the problem with them. It is perhaps why repealing sections 146(4) and 147(3) of the Criminal Justice and Public Order Act 1994 has not been seen as a particularly urgent matter.

[Philip Davies]

That is only one side of the equation, because it does not address the point made by my hon. Friend the Member for Milton Keynes South (Iain Stewart) about how the provisions may have deterred people from pursuing such a career in the first place. When it comes to asking how many people have been affected, the answer is in a sense unknown, because the provisions may have affected an awful lot of people who decided not to pursue a career in that industry.

[Mr Nuttall]

My hon. Friend makes a very good and pertinent point. The provisions may well have had a hidden effect, and we may never know how many people have been affected in that way. People may have stumbled across the provisions or, if they live in a seafaring community on the coast, someone—this is the established law and has been in place for many years—may have said, “Well, I wouldn’t go down that road if you’re homosexual. I wouldn’t go to sea because you risk losing the job.” That could have put people off, so my hon. Friend is right.

I have explained why repealing the provisions has not been seen as particularly urgent and why we are talking about omitting these sections of the 1994 Act only now. The problem that the Bill seeks to address is not one to which we can ascribe specific numbers of people who have been dismissed, because the provisions we are discussing no longer have any legal effect.

I would argue that the Bill seeks to address another problem, which is the very important point that we should not have a potentially confusing provision on the statute book. My hon. Friend the Member for North Devon also made an important point about making it clear to the homosexual community where we are and where the law is. We should go further in making sure that we do not have pieces of legislation on the statute book that are contradictory or no longer have any validity. I believe it would be sensible if it were regular practice that, in each successive Parliament, the Government brought forward a tidying-up consolidation Bill so that matters such as this could be dealt with. That would give the Cabinet Office the opportunity, at least once every five years, to collate any bits of legislation that Members had come across, or had had brought to their attention by members of the public, that needed repealing. They could all be dealt with in a repeal Bill. I appreciate that the Minister is from the Department for Transport, so that is not necessarily his responsibility, but perhaps he will discuss the idea with colleagues across Government, including in the Cabinet Office.

It is worth mentioning briefly why the provision in the Bill was not introduced when the provisions relating to the armed forces in the 1994 Act were dealt with in the Armed Forces Act 2016. The 2016 Act repealed the equivalent parts of sections 146 and 147 of the 1994 Act to the ones that we are discussing. It appears that it was because of how the Armed Forces Act was drafted. Consideration was given to whether it might be possible for that Act to repeal the provisions relating to homosexual conduct in the armed forces. In fact, that was done only through a Government new clause on Report, moved by the Under-Secretary of State for Defence, my hon. Friend the Member for Milton Keynes North (Mark Lancaster). He said:

“I am delighted to be speaking to this new clause today. It reflects the Government’s commitment to the fair and equal treatment of lesbian, gay, bisexual and transgender armed forces personnel. It repeals two provisions regarding homosexuality in the armed forces that are inconsistent with the Department’s current policies and the Government’s equality and discrimination policies more generally.”

My hon. Friend the Member for Henley (John Howell) asked him specifically about the merchant navy, saying:

“During the evidence session for the Select Committee, on which I served, I asked Mr Humphrey Morrison, from central legal services, whether this could be done. The answer I was given was that because it was tied up with the merchant navy, it could not be done. What has changed to allow this to go forward?”

The Minister replied:

“We have simply decoupled the two issues. We will be dealing with this matter in this Bill and the Department for Transport has made it clear that it intends to deal with the merchant navy aspect as soon as possible. I am delighted to say that we are therefore moving ahead quickly, as we said we would.?”—[Official Report, 11 January 2016; Vol. 604, c. 600-601.]

The result of that statement, I think, is the Bill tabled by my hon. Friend the Member for Salisbury.

There was a high-profile case that went to the European Court of Human Rights, that of Smith and Grady v. United Kingdom. The first applicant, Jeanette Smith, was a senior aircraftwoman who had been dismissed from the Royal Air Force in 1994 after being found to have been in a relationship with another woman. I took the trouble to read through the full report of the case—obviously the judgments in such cases are lengthy—and it was harrowing and disturbing to see what had happened. It must have been enormously distressing for the individual involved. According to the judgment, an internal armed forces report described her

“general assessment for trade proficiency and personal qualities as very good and her overall conduct assessments as exemplary.”

She was dismissed, however, because at the time homosexuals were barred from the armed forces.

The second applicant, Graeme Grady, was a sergeant posted as a personnel administrator to Washington at the British Defence Intelligence Liaison Service. He was also dismissed from the RAF in 1994 after being found to be in a relationship with another man, but was described as a “loyal serviceman”. The report of the case sets out the rigorous and intrusive investigations that these individuals had to undergo. The European Court of Human Rights ruled that the Government had breached both the applicants’ rights under article 8 of the European convention on human rights—the right to a private and family life—and the case resulted in the Government changing their policy and allowing homosexuals to serve in the Army, as was reflected in the Equality Act.

What is the scope of the Bill? One further question that I always like to consider in respect of any private Member’s Bill is: are there likely to be any unintended consequences? This was touched on by my hon. Friend the Member for Shipley. It is always worth while considering whether a Bill would have any consequences that might not be obvious at first sight. I am pleased to say, however, that the Bill does not fall foul of that inquiry. We always need to be precise about the scope of a Bill, and we should be clear that the Bill, which we all support, is about tidying up the statute book. We should not try to mislead anyone into thinking that it will have an enormous effect on their personal lives. Repealing the relevant sections of the 1994 Act will not mean that fewer gay or bisexual people in the merchant navy are dismissed, because, as mentioned, under part 5 of the Equality Act, they already have protection against any employer who tries to dismiss them for having a gay relationship.

The Equality Act prevents an employer from discriminating against an employee, by, for example, dismissing them on the grounds of a protected characteristic, and one of those characteristics is sexual orientation. The Equality Act 2010 (Work on Ships and Hovercraft) Regulations 2011 extended the provisions in part 5 of the 2010 Act to include merchant ships. Seafarers, irrespective of their nationality, working on board a UK-registered ship enjoy protections under this legislation. We need to stress the point that this covers all seafarers, not just UK nationals. As I said earlier, my brother is in the merchant navy, so I know that the crew come from all over the world; it is a united nations approach to employment.

The Bill does not make discrimination on the grounds of sexual orientation on a merchant ship any more unlawful than it is now, but it does remove any ambiguity on this point. It is worth noting the unusual position of ships: they are both a workplace and a residence for those on board. My brother spends some of his day on duty but at other times he is free to be in his cabin, relax and do other things. As a result of this dual-purpose approach on board ships, operators may impose restrictions at work that extend into what might otherwise be considered a person’s private life. An example might be prohibiting the consumption of alcohol, because even off-duty crewmen might be called on at very short notice, presumably in rough seas or in an emergency, to carry out duties that would require a clear head. Some shipping operators do allow alcohol off duty, but state that crew must never be intoxicated at any time. Breaching such a requirement could lead to dismissal.

[Craig Whittaker]

Does my hon. Friend agree with what my hon. Friend the Member for Aldridge-Brownhills (Wendy Morton) said about merchant ships? Not only is a merchant ship a workplace, but it is considered a person’s home for much of the year. The mere fact that merchant seamen have these restrictions on their private lives as well as their working lives—they are working in a confined space—increases stress levels, particularly where they are potentially being bullied because they are homosexual.

[Mr Nuttall]

My hon. Friend makes a good point. I would venture to suggest that being in a confined space for weeks or months at a time can indeed increase the stress factor. There is a further impact, in that some operators impose bans on things such as smoking on safety grounds, even though they apply to what is a private living space—someone’s home—and would not apply in other areas. Nevertheless, this Bill would put it beyond any doubt that homosexual conduct, which would be perfectly lawful in all other spheres, would not provide any grounds for dismissal and would protect any seafarer should an employer try to enforce the old rules.

As the explanatory notes to the Bill make clear, the problem with leaving sections 146(4) and 147(3) of the 1994 Act on the statute book is that it gives the impression that gay or bisexual people are not welcome in the merchant navy. Anybody who comes across those provisions on the internet, or as they are passed down from generation to generation, could be deterred from applying for a job in the merchant navy. As we position Britain as an outward, globally trading nation, it is important that we encourage people from all backgrounds and walks of life to go into trading and commercial professions. From cargo to leisure, recruiters will need skilled and capable workers who are undeterred from applying. Any artificial barriers to employment that may be construed from the 1994 Act are very unhelpful indeed.

I believe that laws should be clear and precise, so even though we are not faced with an enormous practical problem, in terms of vast numbers of dismissals, it is necessary to neaten up the statute book to avoid any confusion. It is simply good practice. Indeed, Andrea Woelke, the chair of the Lesbian and Gay Lawyers Association, is reported in Lloyd’s List as saying that repeal of those sections of the 1994 Act

“creates legal certainty and sets the right sign”.

One other question that I always ask when considering a private Member’s Bill is that of cost. It is important when scrutinising private Members’ Bills on a Friday to ask whether there will be any cost to the public purse. So often worthy issues are raised, but we then find out that they come with a hefty price tag attached, requiring a money resolution and ultimately diverting taxpayers’ funds from other important calls on the public purse. I am pleased to say, however, that, as the explanatory notes make clear, there is no anticipated cost to the public purse.

The Bill has two clauses, and I have dealt with the first, but I want to touch briefly on the second, which deals with the Bill’s commencement, extent and short title. Clause 2(1) states:

“This Act comes into force at the end of the period of two months beginning with the day on which it is passed.”

On the face of it, that is a standard and routine provision, and it would seem reasonable. There would be no requirement for a longer adjustment period, because the merchant navy is already required to abide by the Equality Act 2010, and thus would not have to make any changes in what it already does. Arguably the only change is the confirmation that the provisions in the 1994 Act no longer apply, and therefore could no longer be used as grounds for dismissal. If the merchant navy tried to do that, it would be prevented, and a seafarer would have protection under the equalities legislation.

I do, however, believe that there is an argument for a shorter period. Having thought about the matter, I can see no reason why the words in the middle of that sentence should not be omitted, so that the sentence would read: “This Act comes into force on the day on which it is passed.” My hon. Friend and the lawyers may wish to give some thought to that before the Bill proceeds further.

As a rule, I have no truck with legislation that is purely symbolic. To my mind, legislation is not there simply to make gestures, and I would not support a Bill solely on that basis. However, I believe that this Bill serves a genuine purpose. It tidies up existing legislation, and clarifies the issue with which it deals for the benefit of both the public and employers. It has identified an anomaly in the law, and seeks to address it. I think that it will make life easier for employers and employees in the merchant navy, and is therefore a good step forward.

I note, incidentally—I do not think that this has been mentioned so far today—that there is an annual Merchant Navy Day on 3 September. Many local councils participate, including Bury council in my constituency, and the red ensign, the official flag of the merchant navy, is flown on public buildings.

Our commercial seafaring operations will continue to be a crucial part of this country’s global future, and it is important for the legislation applying to it to support equality and be fit for the 21st century. I believe that this Bill is relatively uncontroversial, as well as being straightforward and sensible, and that it should be allowed to make progress. I will support it, and I urge Members on both sides of the House to do likewise.

Merchant Shipping (Homosexual Conduct) Bill

David Nuttall Excerpts

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

[Philip Davies]

I can tell why my hon. Friend was such a successful lawyer. He is now getting into legalistic lawyer jargon that is way above my head as a poor former retailer. He goes way beyond my knowledge base. I am sure he has justified that to himself, but I am not sure that I quite understand it.

The “Oxford Dictionary of Law” states that retrospective legislation

“operates on matters taking place before its enactment, e.g. by penalising conduct that was lawful when it occurred. There is a presumption that statutes are not intended to have retroactive effect unless they merely change legal procedure.”

The last time, as far as I can see, that the Government set out their policy on retrospective legislation was when somebody put a parliamentary question to the last Labour Government. The then Solicitor General said:

“The Government’s policy before introducing a legislative provision having retrospective effect is to balance the conflicting public interests and to consider whether the general public interest in the law not being changed retrospectively may be outweighed by any competing public interest. In making this assessment the Government will have regard to relevant international standards including those of the European Convention for the Protection of Human Rights and Fundamental Freedoms which was incorporated into United Kingdom law by the Human Rights Act 1998.”—[Official Report, 6 March 2002; Vol. 381, c. 410W.]

I mention that because in some respects that backs up my hon. Friend’s position. In effect, it says that the Government’s position is a matter of looking at the public interest. My hon. Friend rightly says that there is no public interest in not making the legislation retrospective, so in some respects that adds some lustre to his argument.

The Library provided other examples of retrospective legislation:

“Statutory Instruments (Production and Sale) Act 1996, which amended the Statutory Instruments Act 1946 to validate retrospectively and authorise prospectively the printing of statutory instruments by contractors working for HMSO.

Caravans (Standard Community Charge and Rating) Act 1991 which amongst other provisions excluded caravans from the definition of ‘domestic subjects’ in the Abolition of Domestic Rates Etc. (Scotland) Act 1987 and deemed the amendment to have had effect since 1 April 1990.”

It cites the Compensation Act 2006 and states:

“The Scotland Act 2012 provided that the regulation of activities in Antarctica should be treated as having been reserved to the UK Government from the beginning of devolution, even though it had not been reserved in the Scotland Act 1998.”

[Mr David Nuttall (Bury North) (Con)]

My hon. Friend has moved on to 2012, but prior to that the Finance Act 2008, specifically section 58, was changed retrospectively to frustrate a tax planning scheme. This affected many constituents across the country, including some of my own, very badly.

[Philip Davies]

My hon. Friend is absolutely right. Examples of retrospective legislation are quite interesting. The reason I chose the examples I mentioned—my hon. Friend, as ever, is on the ball and threw another one into the melting pot, although I would put it in a slightly different category—is that in effect they were trying to correct things back to what should always have been the case. I think that, in many respects, that was much more of an outrage than the example given by my hon. Friend. The Acts that I have cited were, in effect, tidying up the law so that it was as it always should have been. My hon. Friend the Member for Christchurch was on to something when he said that that should always have been the case. A mistake was made in the first place and needs to be corrected, and we need to go back to the beginning in order to correct it. I was trying to use examples that would support my hon. Friend’s case, and I felt that the ones that I used did that. My hon. Friend was right to give the example that he gave as well.