Merchant Shipping (Homosexual Conduct) Bill

Debate between John Glen and David Nuttall

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.

--- Later in debate ---

[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.