Merchant Shipping (Homosexual Conduct) Bill

Kwasi Kwarteng Excerpts

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

[Philip Davies (Shipley) (Con)]

I congratulate my hon. Friend the Member for Salisbury (John Glen) on starting the process of steering his second private Member’s Bill through the House in such a short space of time. It is something that I will never be able to do. I have a feeling that if I were to introduce a private Member’s Bill saying that there should forever and a day be seven days in the week, somebody would talk it out, just for the hell of it. I have no idea why they would feel so motivated, but I am sure that there would be a concerted effort to do so—I would obviously understand those reasons. My hon. Friend, who, for understandable reasons, is much more popular than me has no such problems.

My hon. Friend not only gave a very good explanation of his reasons for bringing forward the Bill but made a very powerful speech. The previous speakers on the Conservative Benches have pointed out that the Bill cannot be seen in isolation, but is part of a journey of many years and the progress we have made on social issues generally but particularly on gay rights. I do not even see these things as being about gay rights. In many respects, this is about dealing with things that should never have been illegal in the first place. It sometimes feels, when we talk about gay rights, as if we are doing someone a favour. It is nothing to do with that; it is all about making it clear that some of this legislation should never have been enacted in the first place.

It is very easy for us, living in our age, to criticise those who went before us, in years gone by, or to try in effect to impose our standards on them. It is a dangerous route to go down, and I do not intend to go down it, even though from our perspective, in this day and age, those pieces of legislation should clearly never have been enacted in the first place. However, people in different times obviously had different views, and we should not be too critical, because I dare say that in 50 or 100 years’ time there will be people in this place criticising the laws that we pass, saying that they were absolutely ridiculous, authoritarian and draconian and asking how on earth we could possibly have passed them, so it is dangerous for us to play that game.

I was struck by the reference that my hon. Friend the Member for Salisbury made to the Wolfenden report, back in 1957, as the starting point for his Bill. It is good to be reminded of what an important part of our country’s history that report was—how important it was that Sir John Wolfenden and the 13-strong committee recommended that homosexuality should not be a crime and how obvious that seems to us today, but how big a deal it was back in 1957. My hon. Friend also made it clear that although many people today—indeed, virtually all of us—would criticise the Sexual Offences Act 1967, at the time it was seen as a liberalising measure. I guess that piece of legislation should also be seen in that context, and I very much congratulate my hon. Friend on bringing forward his Bill today.

My hon. Friend the Member for Calder Valley (Craig Whittaker) also made a powerful speech. I was struck by his reference to his family background in the merchant navy. I have a feeling that other Members will say that they have some family connection to the merchant navy, and it is great to have that expertise in the Chamber. I was also struck by what he said about how we cannot change the past but we can change what happens now and in the future. That is the important thing to concentrate on in this place. Instead of always apologising for what other people did in the past, we should take responsibility for what we do now and what we can change for the future. That was a very good point he made.

My hon. Friend the Member for Milton Keynes South (Iain Stewart) gave a particularly powerful speech. Not only did he bring to bear his expertise from the Transport Committee, but the perspective he gave as a gay man on what this kind of legislation and the legislation it seeks to repeal mean to people was very powerful. Again, he talked about how this Bill was part of a legislative journey, and it should be seen in that context, rather than being seen in isolation.

I thought the most powerful message that my hon. Friend gave was when he talked about people not being able to do the job that they wanted to. It is an incredibly powerful point and one that is very easy to underestimate. Thank goodness he did pursue his career in politics: the House is much stronger for it and the Conservative party is much stronger for it, so it is great that he continued to pursue his passion. I cannot emphasise how ridiculous it is that someone should think, “I can’t pursue a particular career,” whatever it may be, simply because of their sexuality. It is sheer lunacy, in any day and age, but the fact that it happened to him so recently shows what a powerful point it is and how we should take it to heart. He is absolutely right: there will no doubt have been many people who wanted a career in the merchant navy who were deterred from pursuing it simply because of such legislation. The impact of that on people’s lives should not be underestimated. My hon. Friend’s speech was absolutely excellent, and I am sure that it will not have been lost on my hon. Friend the Member for Salisbury that it was a clear pitch to serve on the Bill Committee.

I was also struck by the interventions made by my hon. Friend the Member for Aldridge-Brownhills (Wendy Morton), who has clearly done an awful lot of research into this Bill and this subject. I was unaware of some of the points that she made in her interventions. [Interruption.] Here she is, right on cue. She made the point in one of her interventions about a ship being a residence rather than a place of work. I hope she will have the opportunity to go into that in more detail, because it is an important point that I had not grasped in looking at the Bill.

[Kwasi Kwarteng (Spelthorne) (Con)]

I am struck by my hon. Friend’s remarks. He clearly has a depth of knowledge. I wonder whether he could enlighten the House about how his role on the Select Committee on Women and Equalities informs his views on this subject.

[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.

[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.

[Kwasi Kwarteng]

What significance does my hon. Friend place on the fact that the views he describes were enunciated only 20 years ago? That is a very short period in the social history of our country.

[Philip Davies]

My hon. Friend is absolutely right, and in some respects we should be concerned that these things were still believed in, and legislated for, so recently, but it cuts both ways and the other side of the coin is that we should also be pleased that attitudes and views have changed so quickly. My hon. Friend is right that this is recent history—this is not from a long time ago. My hon. Friend the Member for Milton Keynes South made that point very powerfully in his speech.

Lord Craig of Radley also said at the same time in the 1990s:

“The Armed Forces do not lend themselves to the concept of freedom from discrimination…For very good service reasons we discriminate against”

certain people, such as

“for eyesight, for hearing and for height…It is thus not reasonable to insist, when it comes to sexual proclivity, a very human condition, that it is wrong for the Armed Forces to discriminate or that it is wrong for them not to adopt the perceived contemporary civilian norm.”—[Official Report, House of Lords, 20 June 1994; Vol. 556, c. 89.]

These were all views that were expressed relatively recently. I am delighted that things have moved on. As we have all seen, these are now not academic matters, because since these things have been resolved and common sense has prevailed, has the effectiveness of our armed forces been impaired in any way? Are our armed forces any less good today than they were back then? Of course they are not; they are still the best in the world. These are therefore not now academic exercises; it has been proved to be the case that these restrictions and this discrimination was completely unnecessary and pointless, and, as my hon. Friend the Member for Milton Keynes South said, they have deprived people who would have been excellent at a particular career of the opportunity of pursuing that career, which we should all regret hugely. The proof of the pudding has absolutely been in the eating.

It is significant, and perhaps inevitable, that the most widely reported spokesman of the people who were arguing for gay rights, Sir Ian McKellen, took a different attitude. My right hon. Friend the Member for Mid Sussex, a Minister at that time, reported him as saying:

“Why are Ministers even asking the military?”

My right hon. Friend went on to say:

“The not so hidden agenda of those who want to change Ministry of Defence policy is to steamroller aside the judgments, experience and wishes of the military.”—[Official Report, 9 May 1996; Vol. 277, c. 509.]

I understand that in 1992 the Select Committee on the Armed Forces Bill recommended that the criminal law for members of the armed forces and the merchant navy should be changed so as to be the same as for civilians. In accepting that, the responsible Minister at that time said:

“It is not intended to alter the present disciplinary climate of service life.”—[Official Report, 17 June 1992; Vol. 209, c. 990.]

The result was that after 1992 this had not made any difference to the administrative discharge procedure that had previously been adopted, but nor, apparently, were there any criminal prosecutions.

Viscount Cranborne, a Minister at the time, said in the House of Lords in 1994:

“With your Lordships’ permission, I should like to cover briefly the merchant navy aspects. My noble friend Lord Orr-Ewing has expressed considerable reservations about certain clauses. The clauses…provide that members of the merchant navy should cease to be subject to any special and additional criminal liability for homosexual acts on British merchant ships. The decision to decriminalise homosexual acts by repealing Section 2 of the Sexual Offences Act 1967 was announced in a Written Answer in another place last December. We believe that the clauses here achieve the purpose which was announced then and, as in the case of the Armed Forces, also amend the equivalent Scottish and Northern Irish legislation.

The basis of the decision was essentially to bring the merchant navy into line with the Armed Forces. The fact that the provision appears to have been used very little in the merchant navy is some encouragement to us. The shipping industry, including the unions, had been widely consulted before the announcement was made, and the general consensus within the shipping industry was clearly in favour of repeal. Again I look to my noble friend Lord Aldington when I say that unlike in 1967, the seamen’s union—now the RMT —is now clearly in favour of repeal. The Department of Transport is taking steps, in consultation with employers and unions in the shipping industry, to amend the code of conduct for the merchant navy. The effect of these amendments will be to make it an offence against the code to demand or solicit sexual favours from another member of the crew or to make unwelcome sexual advances to another member of the crew. Such offences, which will apply equally to heterosexual and homosexual conduct, will be subject to the industrial disciplinary sanctions provided for in the code of conduct.”—[Official Report, House of Lords, 20 June 1994; Vol. 556, c. 104.]

However, in June 1994, Lord Boardman moved an amendment in Committee in the House of Lords to ensure that homosexual acts on merchant ships would continue to be grounds for dismissal after it had previously been removed by a last-minute amendment. As was reported in the 20 June debate, Lord Boardman said:

“I am in a perhaps happy position of moving an amendment the principle of which I believe has the support of most of the Committee. In effect it says that homosexual conduct in the Armed Services and in the Merchant Navy…will continue to be a ground for administrative discharge.”

That was not the original intention, and Lord Boardman continued:

“Unfortunately, I have been unable to persuade the Government as to how this can best be done. To avoid misunderstanding, it is probably necessary and helpful if I briefly run through the procedure which exists at the present time.”—[Official Report, House of Lords, 20 June 1994; Vol. 556, c. 85-86.]

I am not going to go through that today as it is not particularly relevant, but this is how we got to the situation we are in today, and the then Minister of State for the Armed Forces, Jeremy Hanley, confirmed:

“The code of conduct for the Merchant Navy is being amended in consultation with the unions and employers. Now is an appropriate opportunity to enshrine in law our acceptance of the position and repeal the special provisions of section 1(5) of the Sexual Offences Act 1967.”—[Official Report, 12 April 1994; Vol. 241, c. 171.]

Successive Governments have kept this issue under constant review.

My right hon. Friend the Member for Mid Sussex also said in 1996:

“The High Court recommended that we should review our policy in the light of changing social circumstances, and of the experience of other countries where homosexuality is not a formal bar to service.”

An internal review was carried out but, unfortunately, it concluded that homosexuality was

“incompatible with service life, if the armed forces were to be maintained at their full…operational effectiveness.”—[Official Report, 9 May 1996; Vol. 277, c. 508.]

That decision was clearly wrong, because nothing that has happened has made any difference to our operational effectiveness.

My hon. Friend the Member for Salisbury was helpful when he said that this legislation would apply to the entire United Kingdom and that the matter was not devolved. Perhaps the Minister will be able to tell us a bit more about how that decision was arrived at and whether it could be challenged through the courts. I cannot imagine that any of the devolved Administrations would object to the Bill, but would it have been worth seeking their agreement anyway to prevent a vexatious legal challenge? I hope that it will not come to that, but perhaps the Minister will explain why it would have been so wrong to seek the permission of the devolved Administrations.

In Northern Ireland, a Mr Dudgeon complained to the European Commissioner for Human Rights that the Northern Ireland law on homosexual offences was in breach of articles 8 and 14 of the European convention on human rights. During the passage of Homosexual Offences (Northern Ireland) Order 1982, the Earl of Gowrie stated:

“Under Article 5 a homosexual act on a United Kingdom merchant ship between members of the crew of that or of any other United Kingdom merchant ship will continue to be an offence, as now.”

He also said:

“The two articles in question deal with the right to respect for private life and to freedom from discrimination. The commission concluded that the law in Northern Ireland breached Article 8 but that there was no need to examine the case under Article 14. The case was then referred to the European Court of Human Rights who, while taking into account the argument put forward by Her Majesty's Government that the existing law in Northern Ireland was justified by the great and particular emphasis placed on religious and moral factors in relation to the law on social matters, decided that there was not sufficient reason for the interference with private life entailed in the present law in Northern Ireland. The court accordingly issued their judgment on 22nd October last year that the law in Northern Ireland breaches Article 8 of the European Convention on Human Rights.”—[Official Report, House of Lords, 26 October 1982; Vol. 435, c. 413-14.]

That was an equalisation between the countries of the UK, but it still left a homosexual act as an offence.

There was a Commons debate on the matter in 1994, but an early-day motion in 1993 alluded to the human side of the debate, which is what I will turn to next. These are not just abstract points; these are things that have affected real people in their real lives, and we should not underestimate their impact. The early-day motion stated:

“That this House believes that discrimination against homosexual men and lesbians serving in the armed forces should end; notes that an Able Seaman Brett Burnell serving abroad HMS ‘Active’ was discharged from the Navy recently purely on the basis of his homosexuality; further notes that this case is featured in a Channel Four Cutting Edge film transmitted on Monday 29th November; believes that the way in which this case was investigated by Naval authorities contradicted the undertaking given by the Minister of State for Defence Procurement in June 1992; and calls on Her Majesty's Government urgently to review the ways in which the Royal Navy and the other armed forces deal with cases of this kind.”

From what I can gather from the case to which the early-day motion refers, Brett Burnell was seen going into known gay establishments and that was the reason for his dismissal. He was simply seen going into known gay establishments; he was not actually caught engaging in any homosexual acts, particularly not on a ship. As I said, section 2 of the Sexual Offences Act 1967 maintained that a homosexual act on a merchant ship would remain an offence. Bad though that legislation was, it strikes me that its application went way beyond what was actually written in statute and what was intended. Even under the law at the time, surely someone should not be dismissed simply for going into a known gay establishment. How on earth could that possibly constitute reasonable grounds for dismissal? It is absolutely ludicrous, but that was what happened to Able Seaman Brett Burnell, and it is a travesty that that ended his career in the Royal Navy. I do not know what happened to him following his discharge, but it is a disgrace that he lost his job in the Navy, serving our country, on those grounds. Such legislation led to his dismissal.

Why has this issue not been tackled before? As I mentioned earlier, the Bill will not have any tangible effect on the current practices of seafarers because the relevant provisions in the 1994 Act have been superseded by other legislation, notably the Equality Act 2010. However, it is interesting that those provisions were not repealed during the passage of the 2010 Act, because that would have been the obvious vehicle through which to do so. I asked the House of Commons Library to confirm whether that would have been possible or if there was a particular reason why it was not. The answer to my first question was:

“on whether the law could have been amended by the Equality Act 2010: I would have thought that’s correct, and that the issue would likely have been in the Equality Bill’s scope.”

It seems bizarre. The whole point of the Equality Act was to put together lots of existing legislation in one Act, so it seems rather strange that this particular bit of the legislation was passed over during its passage.

I recall that the 2010 Act went through Parliament shortly before that year’s general election, so it might not have received the scrutiny that should have been carried out because it was being rushed through to meet the pre-election deadline. I will say in passing that this shows why all legislation that goes through the House, however well-meaning it is, should be properly scrutinised before it becomes law.

[Kwasi Kwarteng]

My hon. Friend is being generous in allowing interventions. I understand that he is a known sceptic of all legislation, so his point illustrates his general philosophy of bringing forward legislation sparingly. We must be thorough and we have to get things right. Does not this omission from the Equality Act suggest that his general approach is correct?

[Philip Davies]

I would not go so far as to say that I am against all legislation. In fact, I did say at the start of my speech that I support this Bill, and when the article 50 provisions come forward, it is likely that I will vote for them, too.

--- Later in debate ---

[Kwasi Kwarteng (Spelthorne) (Con)]

I am grateful to you for allowing me to speak, Madam Deputy Speaker, because I want to say a few things that are pertinent to this valiant and impressive attempt by my hon. Friend the Member for Salisbury (John Glen) to bring about a much needed change in the law. I commend and congratulate him on this, the second occasion on which he has brought forward a private Member’s Bill. I hope that this Bill meets with the same success as his earlier Bill. It is a particularly impressive record for someone who has been in Parliament for a relatively short time to be able to introduce such groundbreaking legislation on to the statute book.

I want to touch on a few things that my hon. Friends have mentioned in connection with homosexuality and the merchant navy. It is also important to address some of the misconceptions on the record and to try to move forward in a spirit of tolerance and diversity, which we have all celebrated.

First, it is not true to say that people were being executed for homosexuality before 1533. In fact, the Buggery Act of 1533, which my hon. Friend the Member for Aldridge-Brownhills (Wendy Morton) referred to and which was piloted through this House by none other than Thomas Cromwell, was the first example in British history of discriminatory penal legislation against homosexuality. It is important to get that on the record, because although it is broadly true that, as my hon. Friend suggested, matters to do with sexuality fell under the jurisdiction of the ecclesiastical courts before that date, out of about 20,000 cases that people have looked at in the 100 years before 1533, I think only one related to the “crime” of sodomy. Homosexuality and issues of that kind were not something that Parliament’s legislation—in fact, the law—had much to do with before 1533.

The Buggery Act 1533, which was the first time this House legislated against homosexuality, was part of Henry VIII’s policy and was taken through by Thomas Cromwell. The fact that we have to mention it today is very relevant, because it was used not simply to attack homosexual practice in Britain, but to undermine the monasteries at the time of their dissolution. The Buggery Act was the main vehicle through which many monks and abbots were disenfranchised. It was one of the principal Acts through which the Crown managed to appropriate the monasteries.

Discriminatory legislation does not always only discriminate against minorities; it is often used as a pretext and an excuse to indulge in other forms of oppression. In the 16th century, very few people other than monks and abbots were condemned under the Buggery Act. As my hon. Friend the Member for Aldridge-Brownhills mentioned, a number of people through the centuries were executed under the Act, but that did not necessarily happen very much in the 16th century. There was the famous case of the Earl of Castlehaven, I think in 1631, who was executed. As my hon. Friend said, all his lands were confiscated by the Government of the day. It was an extraordinary case of judicial oppression; it was not just about discrimination.

Let us wind the clock forward. It was only really in the 18th century that many people were condemned under the Buggery Act, which remained on the statute book until 1828. Many Members have mentioned Alan Turing and others who have suffered discrimination under the legal conditions of their time, but I think it fitting to pay due respect to the memory of James Pratt and John Smith who, in 1835, were the last people in Britain to be executed for homosexuality. It seems a long time ago—it was 182 years ago—that they were hanged for that crime. If Members want to demonstrate the distance that we have travelled in the intervening time, I think it is only right for us to pay a short tribute to people who actually lost their lives under very repressive legislation.

In the 19th century, the situation evolved. Attitudes were changing, particularly towards the end of the century. As we heard from my hon. Friend the Member for Aldridge-Brownhills, the death penalty for homosexuality was abolished in 1861, but that did not lead to much of an evolution of attitudes. In many cases, homosexuality was seen as being on the same level as murder and other graver crimes. The logic was seen to be that homosexuality was a crime against nature and against God, and that was the origin of a very penal, restrictive and draconian approach. Although monks and others who had benefit of clergy were exempt from the death penalty for murder—a priest who committed a murder could avoid the death penalty merely by virtue of the fact that he had benefit of clergy—a priest who was convicted under the Buggery Act could not be granted benefit of clergy. It was a crazy situation.

Many Members have mentioned discrimination in the modern era. The name Alan Turing comes up a lot, but someone else who suffered under our “code”, as it were, and who was probably even more famous and more widely celebrated throughout the world than Alan Turing was Oscar Wilde. Wilde was convicted in 1895 and served two years in Reading gaol because he had infringed the Criminal Law Amendment Act 1885. As many Members know, that measure replaced not only the original Buggery Act, but amendments to it and the Offences Against the Person Act 1861. The 1885 Act imposed stringent penalties on homosexual behaviour. The real innovation in that legislation was that it prohibited acts between males, and that was not just confined to the sexual act. The Buggery Act was very specific in focusing on the act of sex, whereas the 1885 Act had a much broader scope. This was the Act that many of us will have known about from reading all the famous 20th century cases relating to homosexuality and the— crazy to us—judgments that my hon. Friend the Member for Corby (Tom Pursglove) alluded to. The 1885 Act was the legislation under which many people were condemned, most notably Alan Turing.

The problem with that Act was that, as my hon. Friend the Member for Havant (Mr Mak), who is no longer in the Chamber, suggested, by 1954—shortly after the second world war—about 1,000 people were incarcerated solely on the grounds that they were gay. It seems extraordinary that so many people were incarcerated, especially when we consider that the British prison population today is about 90,000. That seems an extraordinary waste, and I should remind the House that the prison population in the 1950s was much lower—probably about half—than it is today. It seems extraordinary to us that as late as 1954, as many as 1,000 men should have been incarcerated purely on the basis of their sexuality.

That is, to us, rightly, an outrage, and even at the time it was sufficiently controversial and absurd to many people that the Conservative Government of the day initiated the Wolfenden report, which has long been famous. That report did a great deal to change Government attitudes about homosexuality and the decriminalisation of homosexual acts, and it also managed to shift society’s attitudes to these issues considerably. It was only really as a consequence of the Wolfenden report, which was finally published in 1960, that much of the journey that Members have described today was traversed. In 1967, we had the Sexual Offences Act, which decriminalised homosexuality for the first time since 1533—after 430-odd years—and roughly got us to the position that we are in today.

There were exceptions, however, and this is where the contribution of my hon. Friend the Member for Salisbury is so important. His Bill ties up many of the anomalies thrown up by earlier history. I only felt it necessary to touch upon various details of that history because we must understand the laws that we make in the much broader context of the development and evolution of our institutions. Sadly, that context is often omitted when we hold debates in this House, so I am glad that I have had the opportunity to touch upon some of the details.

When we look at the specific provisions of my hon. Friend’s Bill, we see that there is neat symmetry. As has been pointed out, sections 146(4) and 147(3) of the Criminal Justice and Public Order Act 1994 actually provided—this is incredible to many of us—for people to be dismissed from service simply because they were practising homosexuals, which is entirely wrong. However, we must note that that happened only in 1994—some current Members were Members at that time—so I am not talking about the 16th century or a period in the long and distant past. My hon. Friend the Member for Salisbury is rightly trying to smooth out some anomalies, and this Bill will mark the end of a 450-year period during which we have had such legislation. I cannot envisage further equality legislation being necessary for a time. We are now well known throughout the world as a country of incredible tolerance, and the Bill marks the end of a chapter in the long evolution of equality legislation.

I want to make two remarks about the Bill. As my hon. Friend the Member for Shipley (Philip Davies) suggested, it is a shame that the Equality Act 2010 did not overturn the provisions of the 1994 Act that we are discussing. It is also a shame that the Armed Forces Act 2016 was similarly unable to close this wide loophole in our legislation. It is only with the advent of today’s Bill that we are finally managing to bring an end to these anomalies.

Finally, it is fantastic that we have been able to debate the circumstances of the Bill widely and to pay homage to the invaluable work that courageous seamen and women have performed over decades in our merchant navy. Throughout the first and second world wars, the merchant navy was very much the unsung hero in our efforts to defeat first the Kaiser’s Germany and then the Nazis. As my hon. Friend the Member for Aldridge-Brownhills said, the merchant navy has had an incredible impact not only on our country’s culture, but on its livelihood. The sacrifices made by merchant seamen and women should never be forgotten in this House. I want to use my closing remarks to pay homage and respect to those brave men and women who have contributed so much and, in many cases, paid the ultimate sacrifice for our country.