Merchant Shipping (Homosexual Conduct) Bill

John Glen 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.

[Wendy Morton (Aldridge-Brownhills) (Con)]

My hon. Friend is setting out in great detail the background to the Bill. Perhaps he can confirm whether UK merchant ships are classified as residences as well as workplaces, which means that shipowners can make up their own rules about what is and is not allowed to happen on board their ships.

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[John Glen]

I will come to some of those points later, but that is why it is important that we are clear about the Bill needing to pass today to leave no ambiguity on the statute book.

The Equality Act 2010 introduced a comprehensive new framework, which updated, simplified and strengthened the previous legislation and created a simple framework of discrimination law that protects individuals from unfair treatment. The Act introduced protection from discrimination for individuals in respect of protected characteristics: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation. When the Act was first passed, section 5 did not automatically apply to the shipping industry, but it was applied to shipping through the Equality Act 2010 (Work on Ships and Hovercraft) Regulations 2011.

Despite the fact that the provisions to be repealed by the Bill have been superseded, it is important that they are taken off the statute book for four reasons, and I would like to take a little time to set out those four principled reasons, which have brought the Bill before the House today.

First, as I have indicated, the Bill is symbolic. The provisions it deals with are the last remaining historical legislation on our statute books that penalises and directly discriminates on the grounds of homosexual conduct.

[Mark Tami (Alyn and Deeside) (Lab)]

There will be those who will argue, “Well, the law has moved on so there’s no point in doing that,” but the symbolism of sweeping it away is so important.

[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.

[John Glen]

Absolutely. I think we know what my hon. Friend the Member for Bury North (Mr Nuttall) is referring to.

I want to address the territorial extent of the Bill, because there was some ambiguity about whether it is an equalities Bill or a maritime Bill. The reason that matters is that, given the territorial extent of the Bill, a legislative consent motion could have been required, because maritime matters are reserved, whereas equalities matters are devolved. I am informed that the Bill is classified as a maritime matter, so, being a reserved matter, a legislative consent motion is not required from the devolved Administrations. The Department for Transport has also signalled the Bill’s compatibility with ECHR rights.

The Bill mirrors the repeal of equivalent provisions relating to the armed forces in the Armed Forces Act. Those provisions were widely welcomed in the House during the passage of that Act, and I trust that the support that those provisions received will be indicative of support for this Bill.

I want to anticipate the objection that the Bill’s provisions could have been dealt with earlier. The Armed Forces Act could not have included sections relating to the merchant navy, because legislation covering the merchant navy is a transport matter, rather than a defence matter. As a result, the provisions fell outside the scope of that Act.

On Second Reading of the Armed Forces Bill, the Minister said:

“These provisions in no way reflect the position of today’s armed forces. We are proud in the Department of the progress we have made since 2000 to remove policies that discriminated against homosexual men, lesbians and transgender personnel, so that they can serve openly in the armed forces.”

The then Labour spokesman, the hon. Member for Chesterfield (Toby Perkins), who understandably is not in his place, said that removing the provisions

“from the statute book is a welcome step forward so that the explicit refusal to discriminate against homosexual servicemen and women is expunged from the service book, just as it has in practice been outlawed. That is an important step forward, and we welcome it very strongly.”—[Official Report, 11 January 2016; Vol. 604, c. 601-3.]

Just as the armed forces today do not discriminate against homosexual servicemen and women, so the merchant navy does not do so any more, and homosexual men and women make a full and valuable contribution to our shipping industry.

A few years ago, in the last Parliament, I was fortunate to take through the Presumption of Death Act 2013 as a private Member’s Bill. At the time, I was grateful for the support and help of charities and organisations that had been lobbying on the issues for a long time. Similarly, I am very pleased that this Bill has been welcomed by, and enjoys the support of, key bodies representing the merchant navy. I hope that will give us confidence that the repeal is not something to which the industry is indifferent; in fact, it warmly welcomes it.

The UK Chamber of Shipping, the industry body for the merchant navy, has welcomed the Bill and said:

“The UK Chamber of Shipping is fundamentally opposed to any discrimination on the basis of sexual orientation. Whilst subsequent equality legislation has superseded the law, this is a welcome move which would create legal certainty.”

The National Union of Rail, Maritime and Transport Workers, the industry union, has also lent its support to the Bill, saying:

“The RMT is fundamentally opposed to all forms of workplace discrimination, including on grounds of sexuality. We support all efforts to reinforce LGBTI workers’ rights in the merchant navy and Mr Glen’s Bill should finally end any perception of a threat of legalised persecution, particularly of gay or bisexual seafarers. We welcome this legislative step and see that it has Government support. We urge all MPs and Peers to ensure that this Bill is passed into law as quickly as possible.”

Finally, I was particularly pleased to receive the backing of long-standing campaigner Peter Tatchell, who wrote in an email to me:

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

In conclusion, I hope that the Bill will enjoy support from across the House, to signal our commitment to equality and justice, and to give real reassurance to individuals that no discriminatory employment practices are allowed in law, in the merchant navy or elsewhere in the United Kingdom. As I said at the beginning of my speech, I am pleased to promote this Bill and I commend it to the House.

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[Peter Heaton-Jones (North Devon) (Con)]

It is a pleasure to follow my hon. Friend the Member for Shipley (Philip Davies) and I, too, congratulate my hon. Friend the Member for Salisbury (John Glen) on securing this incredibly important debate and on being successful in the private Member’s Bill ballot. If I understood his comments and those of colleagues correctly, it looks like this is the second time that he has piloted a private Member’s Bill on to the statute book.

[John Glen]

Not yet.

[Peter Heaton-Jones]

No; we will not count our chickens, but I hope that in a few weeks or months it will be the case. He is truly becoming a legislative leviathan, and I congratulate him on it.

My hon. Friend follows in a long line of Back Benchers who have piloted important legislative developments in the arena of social policy through the House, and I welcome his addition to this important historical trend. I want to say, in complete support of my hon. Friend the Member for Shipley, how struck I was by the speech made by my hon. Friend the Member for Milton Keynes South (Iain Stewart). His comments, the way he framed them, and his personal testimony express better than any legal language could why we need to do this today. It is a personal matter for so many people and it has been swept under the carpet for so long. Even if this is a tidying-up exercise, if I can use that phrase, even if it is purely a symbolic change to make sure that different bits of our legislation do not give the wrong message, that sort of personal testimony is why it is so vital that we make it. I echo my hon. Friend the Member for Shipley in saying that, if anyone outside this place reads just one speech in today’s debate, it should be that of my hon. Friend the Member for Milton Keynes South.

As has been said, the change that the Bill proposes is largely a symbolic one, but it is still vital. The Bill seeks to rectify an anachronism in our current legislation, which is the law as it applies to merchant ships. The Bill would repeal certain aspects of sections 146 and 147 of the Criminal Justice and Public Order Act 1994, which suggest that it would be lawful to dismiss a seafarer for a homosexual act. Those sections repealed in England, Wales and Scotland and revoked in Northern Ireland laws that criminalised homosexual acts in the armed forces and aboard merchant ships. However, the two particular aspects of those sections that my hon. Friend’s Bill seeks to address today still maintain that homosexual acts could provide grounds for discharging a member of Her Majesty’s armed forces or dismissing a member of the crew of a UK merchant ship. The Armed Forces Act 2016 repealed those parts of that previous Act as they maintain their hold over the Navy—Her Majesty’s armed forces—but they left in place the aspects relating to merchant ships. As such, we still have on the statute book in this country legislation that says:

“Nothing contained in this section shall prevent a homosexual act from constituting a ground for dismissing a member of the crew of a United Kingdom merchant ship from that ship.”

I am afraid that that wording on the statute book—even though it has been superseded, I am so pleased to say, by the Equality Act 2010—gives rise to a perception that is the last thing we want as a country that has moved so far to equalise the rights of the LGBT community. That is why, as symbolic as it may be, the change that the Bill seeks to introduce is so important.

Merchant ships are in the unusual position of being both workplaces and residences, as my hon. Friend the Member for Aldridge-Brownhills (Wendy Morton), who has a habit of appearing back in her place just as she is being referred to—it is very clever; it is a skill that all Members should develop—pointed out correctly in an intervention, and that is partly why we are in the position that we are in. Many owners of merchant ships are able—because they are the outright owners of a residence as well as a workplace—to introduce and enforce rules and regulations on those vessels, as anyone in their own home can do for a visitor. They are able to ban alcohol, or smoking even by seamen in their own cabins while off duty. They can impose stringent restrictions on many other activities on health and safety grounds or merely because they feel that it is the right thing in their own residence. The danger is that, with this historical language on the statute books, that could be extended, and because merchant ships are viewed as both a residence and a workplace, one fears that some merchant ship owners could extend those powers to homosexual acts, which would be inappropriate.

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[Tom Pursglove]

My hon. Friend is absolutely right. This is the most tolerant country in the world, and it must remain so. I am lucky—I grew up in Wellingborough, in Northamptonshire, where we have incredibly cohesive communities. People from all different faiths and backgrounds come together, rub along well and look out for one another. I want every single community in this country to be like that, and where there are differences we need to work on them. We need to ensure that barriers are swept away, because we must protect the proud traditions of this country and stamp out hate crime. In no walk of life, and in no community, is it acceptable, so he is right to raise that issue.

I have looked at the Bill and done some research in advance of today’s debate, and it is clear that the law is messy. As I said, sections 146(4) and 147(3) of the 1994 Act are now essentially superfluous since the Equality Act 2010 came into force. Where we can, the House should clarify the law and remove any superfluous elements. The policy background section of the Bill’s explanatory notes is particularly effective in that regard, because it states:

“Even though it is of no effect, the policy implication of the sections is ambiguous, and may be seen as a statement that homosexual conduct, per se, is incompatible with employment on merchant vessels. Such a statement is not compatible with current values and should be removed. 

There is also a risk that a person investigating the employment rights of Lesbian, Gay, Bisexual and Transsexual (LGBT) people in the Merchant Navy might come upon the sections, and (understandably, but incorrectly) consider that they mean that LGBT people were not welcome inside the Merchant Navy.

Finally, as the sections are obsolete, removing them is of general utility, as doing so tidies up the statute book.

A similar approach to this Bill was taken by the Government in the Armed Forces Act 2016, which removed the parts of the sections which referred to the Armed Forces. During the passage of that Act, the relevant Minister made the following statement:

‘[T]he Department for Transport has made it clear that it intends to deal with the merchant navy aspect [of the Criminal Justice and Public Order Act] as soon as possible’.”

Those were the words of the Under-Secretary of State for Defence, my hon. Friend the Member for Milton Keynes North (Mark Lancaster).

The explanatory notes continue:

“Differing variations of this statement were also made in the Lords when the issue was raised there.”

That effectively sets out the entire scope of the Bill, why it is required, some of the difficulties with current legislation, the Government’s previous commitments and what needs to be done to put it right, and the Bill neatly achieves that. It is a short Bill, but the provisions are very clear, and the Minister’s remarks clearly indicate strong Government support for the sentiments in it.

I have just one query—I am happy for my hon. Friend the Member for Salisbury to intervene now or for the Minister to address this point in his remarks—and it relates to the Bill’s commencement, should it complete all its stages and pass into law. 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.”

I do not think we should waste a moment. If the Bill is passed into law—I sincerely hope it will be—we should enact its provisions as quickly as possible. There might well be good constitutional reasons why we cannot do it immediately, but we should look at the matter, perhaps in Committee, and seize the first opportunity we have to implement the Bill. We should lay down a marker and not waste any time.

[John Glen]

I would be happy to look at this point carefully in Committee, and obviously I would be happy if my hon. Friend wishes to join me on that Committee.

[Tom Pursglove]

I am grateful to my hon. Friend for his offer, and I would of course be delighted to join him on the Committee, because it is important that it has Members from across the House. I was pleased to see interventions earlier from Opposition Members. The hon. Member for Alyn and Deeside (Mark Tami) was right to call the Bill symbolic. Perhaps he will join us on the Committee as well. I think that commencement is one of the first things we should look at, because, as I say, I do not want to waste any time in resolving this issue and ironing out some of the ambiguities in the law.

I am pleased that my hon. Friend the Member for Salisbury has explained very clearly why this matter could not be addressed in an Armed Forces Act. My early research on the Bill flagged up in my mind the question of why this had not been addressed in an Armed Forces Act, so I appreciate his setting out those very good reasons and clarifying the matter to the House.

I was also pleased to learn that the industry had come a long way since 1994. In the course of my research, I found out that several steps had been taken since the 1994 Act that further evidenced why the Bill was required. The work done includes guidelines, drawn up by the UK National Maritime Occupational Health and Safety Committee, on preventing bullying and harassment, and these were adopted by the European social partners and subsequently internationally. The Maritime and Coastguard Agency has also produced guidance on seafarer employment agreements that recommend including references to bullying and harassment. I think that all Members would welcome those steps. Steps have been taken organically within the merchant shipping industry to put right some of the challenges and problems of the past without legislation in this House, but tidying up the law will do much to add to that as well.

I very much welcome this Bill. It is fitting that we are debating it in the same week as the Speaker’s statement, which he made yesterday, about the recognition that Parliament as an employer has received from Stonewall. We take these matters extremely seriously in this House and it is important that they should be taken seriously in the paid service of the House. We should set an example in the House of Commons, but also in the House of Lords and across the parliamentary estate as a whole, that the country should follow. It was a commendable achievement to be in the top 30. I congratulate everybody involved in that work, which sets an example for us as individual Members to follow in the work that we do in our constituencies and parliamentary offices, as well as the work that we do in this House in scrutinising legislation to make sure that we get it right.

There should undoubtedly be recognition of the fact that this country has come a long way in recent years. This Bill is another step in the right direction. As we have heard from numerous speakers today, it will tidy up the law and complete this element of work and should therefore be wholly welcomed. Those of us of my generation simply do not comprehend the sort of discrimination that this Bill seeks to address. We have not grown up in a society where that sort of discrimination happened, so finally putting a stop to it is a good thing in its own right. I would not want any young person or anybody else in this country to be deterred from seeking employment in the merchant navy because of a fear that they would be discriminated against or somehow treated differently. That would be totally unacceptable and would not sit comfortably with me at all—it would not sit comfortably with any Member of the House or any of our constituents.

Not only is this Bill symbolic; it has a real purpose. As has been said, lots of Bills come forward with worthy sentiment, but this Bill also has a realistic purpose and its aims can be achieved very easily. It is logical; it is frankly right. I hope it will command the support of the House this afternoon.

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[John Glen]

With the leave of the House, I should like to say a few words. I thank my nine colleagues on the Government side of the House who have made such an effective contribution to what has been a useful and necessarily thorough debate on the Bill. For some, it will be a symbolic tidying-up exercise, but for many it is a serious piece of legislation that completes much needed reform and removes discrimination from the statute book.

Like my hon. Friend the Member for Shipley (Philip Davies), I believe that all legislation should receive careful and thorough scrutiny. I am grateful to my hon. Friend the Member for Spelthorne (Kwasi Kwarteng) for his deep historical knowledge and to my hon. Friend the Member for Milton Keynes South (Iain Stewart), who made such a powerful contribution. However, I do not wish to detain the House any longer. I commend the Bill to the House.

Question put and agreed to.

Bill accordingly read a Second time.

Merchant Shipping (Homosexual Conduct) Bill

John Glen Excerpts

Committee Debate: House of Commons
Wednesday 8th February 2017 Public Bill Committees

[Hon. Members]

Yes.

Clause 1

Homosexual acts in the merchant navy: repeals

Question proposed, That the clause stand part of the Bill.

[John Glen (Salisbury) (Con)]

It is a pleasure to serve under your chairmanship, Sir Alan, for what I think is the first time. I thank hon. Members from both sides of the House for being here this morning.

The Bill is extremely straightforward, repealing provisions in the Criminal Justice and Public Order Act 1994 that purported to allow for the dismissal of a seafarer from a merchant navy vessel on the ground of homosexual activity. The Bill does not make an effective legal change, as those provisions have been superseded by the Equality Act 2010. I do not want to repeat the extensive airing that the issues had on Second Reading a few weeks ago, but the Bill is still worth pursuing, for four reasons.

First, the Bill is symbolic: it completes the repeal of historical provisions that penalised homosexual activity. Secondly, it delivers on the commitment made during the passage of the Armed Forces Act 2016. Thirdly, it gives reassurance. At the moment, an individual could look up the 1994 Act online and be alarmed or confused by its apparent provisions in this area. Fourthly, the Bill tidies up legislation: it makes the status of the current law absolutely clear and removes defunct provisions.

Let me attend to the contents of the Bill. Clause 1 simply repeals sections 146(4) and 147(3) of the 1994 Act. My amendment addresses the point made by my hon. Friend the Member for Corby on Second Reading, when he helpfully discussed commencement. He essentially argued that there did not need to be the customary two-month delay.

I am informed by parliamentary counsel that they default to a two-month commencement period unless there is some reason to consider a shorter or longer period. I have been advised that there will be no adverse consequence from an immediate commencement, hence the amendment. It amends clause 2 to set the date for commencement as the day on which the Bill is passed— that is, when it receives Royal Assent. I thank my hon. Friend for raising that issue. I hope that the amendment will strengthen the Bill’s symbolic function in showing our determination to settle this matter as quickly as possible.

Clause 2 deals with commencement, which I have just discussed, and the Bill’s extent, which is throughout the UK. I reassured the House on Second Reading that, as a maritime issue, the subject of the Bill is a reserved matter, so it does not require legislative consent motions from the devolved Administrations.

As I said, this is a very straightforward Bill, repealing defunct provisions of the 1994 Act. It will give reassurance that no discriminatory employment practices are allowed in law, in the merchant navy or elsewhere, and it will tidy up the statute book. I hope that my amendment will strengthen that signal in showing our determination to complete as soon as we can the repeal of historical provisions that penalised homosexual activity.

[Daniel Zeichner (Cambridge) (Lab)]

It is a pleasure to serve under your chairmanship, Sir Alan. I congratulate the hon. Member for Salisbury on introducing the Bill. I am delighted that it has cross-party support. I have very little to add although, in the accustomed manner, that will not stop me saying it anyway.

We very much support repealing those provisions in the Criminal Justice and Public Order Act 1994 that suggest it would be lawful to dismiss a seafarer for homosexual activity. This is a very short Bill. Clause 1 would omit from the 1994 Act sections 146(4) and 147(3):

“(homosexual acts as grounds for dismissal from the crew of merchant ships).”

Clause 2, as we have just heard, is being amended. It would have required the Act to come into force at the end of two months, but we support the amendment.

The Bill’s brevity does not in any way undermine its importance; short Bills can be quite significant, as we are discovering at the moment. There is little to amend and I hope it will be agreed that it is relatively straightforward. We are all keen that the Bill should be passed, and speedily. It is clear that the provisions that the Bill seeks to repeal have no place in a modern society based on sexual equality and inclusion. Although other countries appear to be going backwards at the moment, it is good that we continue to go forwards.

The provisions to be repealed are now legally null and void in any case, superseded as they were by the Equality Act 2010 and related regulations. Dismissing a member of a merchant ship’s crew on account of homosexual activity would be discrimination on grounds of sexual orientation, contrary to part 5 of the 2010 Act.

As we discussed on Second Reading, section 14(3) of the Armed Forces Act 2016 already repealed the parts of the Criminal Justice and Public Order Act that related to the armed forces but left in place the aspects concerning merchant ships. The Government said they would decouple the two issues and would soon act to repeal those sections concerning merchant ships.

The Bill will tidy up existing legislation and remove discriminatory language from the statute books. It is an important, albeit symbolic, gesture, so let us get it done.

Merchant Shipping (Homosexual Conduct) Bill

John Glen Excerpts

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

[Philip Davies]

My right hon. Friend sums it up perfectly. There are two ways of looking at this. One of them is the way he looks at it, which is that we should not pass retrospective legislation unless there is a compelling reason to do so. My hon. Friend the Member for Christchurch appears to be taking the view that we should not pass it unless there is a good reason not to. We seem to be on opposite sides of the coin, and I am with my right hon. Friend on this: unless there is a cast-iron reason why we should pass retrospective legislation, we should avoid doing so in case it sets some dangerous precedents further down the line, and my hon. Friend has clearly not met that test. Therefore, even though I have absolute sympathy with what he is trying to do and agree with the sentiment behind his amendment, I urge Members to resist it on this occasion and leave the Bill as it is.

[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.

--- Later in debate ---

[John Glen]

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

I will not detain the House for long. I am grateful to have reached this point, and I wish the Bill Godspeed as it is sent to the other place. As hon. Members have noted throughout its passage, the Bill is short and simple. However, what it symbolises and the lasting impact it will have are about more than the repeal of sections 146(4) and 147(3) of the Criminal Justice and Public Order Act 1994. The Bill sends the important message that, when it comes to employment in this country, what matters is a person’s ability to do the job, not their gender, age, ethnicity, religion or sexuality. By passing the Bill we make a clear statement that employment discrimination on the basis of sexual orientation has no place in our country. We should not underestimate the importance of that statement.

Looking back at the Bill’s previous stages, I am sure that hon. Members will recall the powerful speech made on Second Reading by my hon. Friend the Member for Milton Keynes South (Iain Stewart) and his moving remarks on how legislation previously left him feeling unable to pursue the career of his choice. We want to send a clear message to younger generations, and to anyone who might have been confused upon reading the 1994 Act, that sexual orientation is not a basis for employment discrimination in the merchant navy or anywhere else.

I am pleased that the Bill is supported by hon. Members on both sides of the House, and that they have noted the important reassurance and clarity that it provides. I thank hon. Members who served on the Public Bill Committee, particularly my hon. Friend the Member for Corby (Tom Pursglove) for his helpful input on an amendment. The Bill will now come into force on the day it becomes law, further reinforcing the House’s commitment to the principles on which the Bill stands. I also thank my right hon. Friend the Minister for his support throughout the Bill’s passage.

Finally, it only remains for me to wish the Bill safe passage as it now goes to the other place, which I hope will share the conviction of this House that employment discrimination on the basis of sexual orientation is wrong and that it is time for the entirety of our statute book fully to reflect that reality.