Merchant Shipping (Homosexual Conduct) Bill

Philip Davies Excerpts

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

[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.

--- Later in debate ---

[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.

[Mr Nuttall]

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

[Philip Davies]

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

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

our hon. Friend the Member for Salisbury

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

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

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 They might not realise that those provisions had been superseded by measures such as the Equality Act 2010.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

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

Section 146 states:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[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.

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

Order. I know that we said that we would have quite a broad debate, but I certainly do not want to enter into a debate about what Bills will or will not be supported in the future. The hon. Gentleman probably has a good 20 minutes ahead of him and I would not want the discussion of other areas to add to that.

[Philip Davies]

My hon. Friend the Member for Spelthorne (Kwasi Kwarteng) led me astray, Mr Deputy Speaker, and you are quite rightly not allowing him to do that. I shall see him later to discuss Kempton Park’s closure.

My serious point is that this matter could have been dealt with many years ago if the 2010 Act had been scrutinised properly. The omission from that Act has meant that we have needed an entirely new Bill simply to correct a failure, and that is a great shame. The Equality Act 2010 (Work on Ships and Hovercraft) Regulations 2011 appear to be the final confirmation that this Bill is not going to change anything, because those regulations are the key piece of legislation relating to the 2010 Act that makes the original provisions redundant. Those regulations were made on 18 July 2011 and came into force on 1 August 2011.

I know that other Members wish to speak, so in the interests of time, Mr Deputy Speaker, I will not test your patience any further by reading out the part of the regulations that, in effect, makes the 1994 Act provisions redundant. They deal with the application of

“Part 5 of the Act to seafarers working wholly or partly in Great Britain and adjacent waters”

and make it clear that the 2010 Act does apply to seafarers and to ships working in this environment, so the position is clear. The regulations also come with an interpretation, which makes it clear that the 2010 Act is the Act that applies, goes through what is meant by a “United Kingdom ship” and a “United Kingdom water”, and sets out the legal relationship of a seafarer’s employment within the country.

The regulations therefore did make the position clear, but my hon. Friend the Member for Milton Keynes South made the pertinent point that somebody who reads the 1994 Act might not know about the 2011 regulations. How many people in here know about the Equality Act 2010 (Work on Ships and Hovercraft) Regulations 2011? It is our job to deal with these things, but how many of us know about those regulations? How on earth can we expect the general public, who might well have been made aware of the law that was in place, to have known that it was superseded by the 2011 regulations? For that reason—normally I might have been tempted to say that the Bill is a solution looking for a problem, and therefore not necessary—I think that the Bill serves a useful purpose.

[Mr Jacob Rees-Mogg (North East Somerset) (Con)]

Is it not further sensible to bring forward this Bill because the courts have watered down the understanding of implied repeal and built up a hierarchy of legislation? Therefore, as the principle of implied repeal has been weakened, it is more important that the legislation that we pass is clear.

[Philip Davies]

I hope that my hon. Friend will be able to give the House the benefit of more detail about his good point in a speech—he knows more about it than I do. I know full well that he will correct me if and when I am wrong, but my understanding is that constitutional legislation will always take precedence and, presumably, anything that is not constitutional that came earlier will be superseded by something that came later. He seems to be indicating that that is not necessarily the case, so perhaps he would like to have another bite of the cherry to inform us better.

[Mr Rees-Mogg]

The historical understanding was quite clear: any subsequent Act implicitly repealed a previous one. In recent years, however, the courts have developed, particularly in relation to the European Union, an understanding of a hierarchy of legislation. They have decided what are and what are not constitutional Acts. We do not list Acts as constitutional and non-constitutional—all Acts that we pass are of the same level—so this is just about creating certainty.

[Philip Davies]

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

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

[Mr Nuttall]

It is the fourth Bill down today.

[Philip Davies]

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

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

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

[Craig Whittaker]

On pardoning, does my hon. Friend agree that the situation is not as simple as he has just outlined? In our past, the age of consent has been 21; today it is 16. Someone might have had sex with a 14-year-old minor way back when, and that would still be illegal today. Does he therefore agree that it is very difficult to give a blanket pardon in such cases?

[Philip Davies]

My hon. Friend is absolutely right, but my point is that I would be nervous about in effect giving pardons on the basis of what the law is today as against what the law was back then; we have to accept that the law was what it was at the time.

In 1994, Lord Craig of Radley said:

“Finally, am I right in my concern that we no longer have complete confidence that European law may not one day attempt to rule that discharge on the grounds of homosexuality is discriminatory and illegal, and that this could apply whether discharge was by court martial or administratively and, even worse, be made retrospective and/or liable to compensation?”—[Official Report, House of Lords, 20 June 1994; Vol. 556, c. 90.]

Bill Walker, a former colleague of ours, said the following in this House:

“Can my hon. Friend the Minister give an assurance that if existing law is changed as a result of these amendments, anyone dismissed from the service under the existing legislation will not be able to appeal to the European Court and receive large sums of public money ?”—[Official Report, 12 April 1994; Vol. 241, c. 172.]

This raises something that has not really been spoken about in this debate, but I hope that the Minister will address it. As I say, I am all for changing the law on this, and I support the Bill and will do what I can to secure its passage through the House. However, I hope that if we change the law, we will not have any unintended consequences whereby we open ourselves up to retrospective claims for compensation just because we are putting right today what was clearly wrong in the past. I genuinely do not know whether that needs to be made clear in the Bill, but perhaps the Minister will reflect on it. It might be something to consider in Committee or on Report, because that would allow us to be clear about whether that matter should be addressed by the Bill and if we might be opening ourselves up to unintended consequences.

I congratulate my hon. Friend the Member for Salisbury on his Bill for many of the reasons that have already been given, but especially those cited by my hon. Friend the Member for Milton Keynes South. I would advise anyone inside or outside the House to read the speech made by my hon. Friend the Member for Milton Keynes South if they did not hear it first time round. He made it perfectly clear why we should all support the Bill, whether it is technically necessary in law or not. It certainly should be supported, and I hope that it will pass into law.

--- Later in debate ---

[Philip Davies]

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

[Mr Nuttall]

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

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

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

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

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

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

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

The Minister replied:

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

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

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

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

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

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

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

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

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

Merchant Shipping (Homosexual Conduct) Bill

Philip Davies Excerpts

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

This is a narrow point. I hope that my hon. Friend the Member for Salisbury and the Government will accept the motivation behind the amendment and its contents and will incorporate it in the Bill. That really will tidy up the statute book, because it will have the effect of this provision never having been legislation.

[Philip Davies (Shipley) (Con)]

The amendment moved by my hon. Friend the Member for Christchurch (Mr Chope) is trying to introduce retrospective legislation, as my right hon. Friend the Member for East Yorkshire (Sir Greg Knight) said. Like my right hon. Friend, I am not naturally in favour of retrospective legislation—it is a bit like rewriting history—and I have opposed it in the past. However, as I think I said on Second Reading, the law should never have been put in place, so in that sense I absolutely understand why my hon. Friend the Member for Salisbury (John Glen) wants to make the law retrospective. Many people in the House agree that the law should never have been put in place, so in effect he is neatly correcting that situation.

We should start by looking at the effect of the amendment. I asked the Library, which is always helpful, about its effect. One of its staff said that

“the amendment would have retrospective effect, going back to 1994. The Bill is seeking to repeal law which provides that it would not be unfair to dismiss a seafarer for a homosexual act. The amendment would mean that any dismissal on that basis since 1994 would not enjoy the statutory protection against being deemed an unfair dismissal.”

It went on:

“So far as I can see, the amendment would have no practical effect. Any dismissal of a seafarer for a reason relating to a homosexual act could already constitute sexual orientation discrimination. This has been unlawful, in respect of seafarers, since at least 2011. Claims in respect of the period before 2011 would be well out of time under, among others, the Limitation Act 1980. As such, any seafarer dismissed since 1994 for a homosexual act would, already, have a claim or be out of time for making one. The amendment/Bill would not change either of those things. It would therefore appear that the amendment is intended as a symbolic gesture.”

We are in the rather bizarre situation that, in effect, the Bill makes no real practical change, because equality laws are already in place, and the amendment moved by my hon. Friend the Member for Christchurch would have no practical impact either. It must be a first that a Bill going through Parliament would make no real difference to the law and that an amendment to it would make no difference to the law either. There may be some historical precedents for such a situation, but I have certainly not been aware of one during my few years in the House.

I suspect that that is, in many respects, my hon. Friend’s case: as the Bill is only symbolic, there is no harm in his symbolic retrospective amendment, even though we may in essence be against the principle of retrospective legislation. In that sense, the amendment is not retrospective, because it will not change the impact of anything. To be perfectly frank, I am not entirely sure where that leaves us. It seems to me that it leaves us wherever people want to be left: you pays your money and you takes your choice. People may want to be a purist, like my right hon. Friend the Member for East Yorkshire, and say, “I will vote against retrospective legislation come what may,” or they may want to take the view of my hon. Friend the Member for Christchurch and say, “As we are dealing with symbolic legislation, there is nothing wrong with retrospective symbolism in the Bill.” I do not know which is right.

I asked the Library to help me with any other examples of retrospective legislation. Under the heading, “What is retrospective legislation?”, the Library briefing on this subject says:

“Retrospective legislation is generally defined as legislation which ‘takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect to transactions or considerations already past’.

[Mr Chope]

If my hon. Friend pauses to look at this again, he will see that, under that definition, the amendment would not be retrospective legislation, would it? The amendment would not take away or impair any vested right that has been acquired under existing laws, would not create a new obligation, would not impose a new duty and would not attach a new disability in respect to transactions or considerations already past.

[Philip Davies]

Exactly. My hon. Friend is right. Unfortunately, he is slightly arguing against himself. The explanatory statement, which, as ever, he helpfully printed alongside his amendment, states that it would make the repeal retrospective. Having explained that to the House, he now appears to be arguing that he would not make it retrospective. I am not really sure where that takes us.

[Mr Chope]

The distinction is that this would be retrospective, but it would not amount to retrospective legislation under the terms of the definition to which my hon. Friend referred.

--- Later in debate ---

[Philip Davies]

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

The “Oxford Dictionary of Law” states that retrospective legislation

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

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

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

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

The Library provided other examples of retrospective legislation:

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

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

It cites the Compensation Act 2006 and states:

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

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

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

[Philip Davies]

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

--- Later in debate ---

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

Order. We are also in danger of talking about criminal law. I know that the hon. Gentleman is very good on the detail of the Bill, and wants to return to it.

[Philip Davies]

You are exactly right, Mr Deputy Speaker. I was sidetracking myself. Let me return to the principle of retrospective legislation.

The Alan Turing (Statutory Pardon) Bill is, in many respects, from the same stable as this Bill. During its very short and sweet Third Reading in the House of Lords, the great Lord Tebbit made a pertinent point. He said that he had “no intention of obstructing” its progress, but added:

“As it continues on its journey towards the statute book, though, there is something that should be said. As we know, Mr Turing committed, and was convicted of, an act that would not be a crime today. So have many others, and many other crimes have been committed similarly. I hope that the Bill will not be used as a precedent. Even more, I hope that we will never seek to extend the logic of the Bill to posthumously convict men of crimes for acts that were not criminal when they were committed, but would be if they were committed today. There is a dangerous precedent within this Bill.”—[Official Report, House of Lords, 30 October 2013; Vol. 748, c. 1584.]

I think that the warning given by Lord Tebbit then is very relevant to the Bill that we are discussing today, and that is the particular issue that I have with it.

[Mr Chope]

Both the quotation used by my hon. Friend that caused you to intervene, Mr Deputy Speaker, and the quotation that he has just used relate to criminal retrospection. Does he accept that the Bill is not about criminal retrospection?

[Philip Davies]

I do accept that.

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

Order. I hope you are not going to enter into a debate on this.

[Philip Davies]

No, I am not going to defy your ruling in any way, Mr Deputy Speaker; I would never do that, as you well know.

[Mr Deputy Speaker]

Order. Mr Chope will always try to lead you off your objective, and we do not want him to do that.

[Philip Davies]

I suspect that you are right about my hon. Friend the Member for Christchurch, Mr Deputy Speaker; he has been leading me astray for many years now.

The serious and relevant point that I want to make is that the principles in many respects remain the same. I accept that there is the difference in terms of the criminal law that my hon. Friend outlines—and that you outline, Mr Deputy Speaker. The point I was trying to make—perhaps in a ham-fisted way—is that the principles are similar in terms of retrospective legislation and whether we should go down that route.

In conclusion, I support the Bill and am all for changing the law on this, and I still maintain today that this law that my hon. Friend the Member for Salisbury is rightly dealing with should never have been the law; it was an absolute outrage that it ever was the law of the land, and I am all for changing it. But I am concerned that there might be, not necessarily unintended consequences, but unintended precedents set by trying to change it retrospectively.

[Sir Greg Knight]

Does my hon. Friend agree that the essence here is that we should not be seeking to pass provisions that are retrospective unless there is a compelling reason to do so, and where our hon. Friend the Member for Christchurch (Mr Chope) has failed is in explaining what is compelling about his amendment?

[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.

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[Philip Davies]

I congratulate my hon. Friend the Member for Salisbury (John Glen) on this Bill. He is one of the most diligent people in the House, and he is also one of the nicest. It is a pleasure to be here to support his Bill, for which I reiterate my support and note that it has support from both sides of the House.

Although the Bill is, in effect, a tidying-up exercise that will not make a lot of practical difference, it is right that we only have laws on the statute book that are enforceable and justifiable, and what the Bill seeks to clear away from the statute book is unjustifiable.

As I said on Second Reading, this Bill is about dealing with things that should never have been illegal in the first place. When we talk about things such as gay rights the tone can sometimes be as though we are doing people a favour, but it is nothing to do with that, as these things should never have been illegal in the first place; it is about making it clear that some things that are on the statute book were wrong and we have to make a point of removing them. It is certainly not about doing anyone any favours and we should not make it sound as though it is.

Clearly, the sections the Bill addresses have been superseded by other legislation, specifically the Equality Act 2010. Interestingly, the Bill should never have been needed, because this matter should have been dealt with in its entirety when the 2010 Act was introduced. I asked the House of Commons Library whether it would have been possible to deal with the matter then and was told that it would have been within the Equality Bill’s scope. Such an omission has meant that we needed to produce an entirely new Bill simply to correct the position. In many respects, that is unfortunate, but I am delighted that my hon. Friend has taken the opportunity to correct it.

Rightly, this Bill has received proper scrutiny, on Second Reading, in Committee and again on Report today. This is a small Bill, but that does not mean it should not get the same scrutiny that big Bills do. I am grateful that we have had the opportunity to give the Bill proper scrutiny, because it should never be easy to get legislation through Parliament. My hon. Friend has approached the Bill in exactly the right way and spirit, taking on board people’s comments and looking into them all diligently. I commend him on doing that, as this has been a model of how people should take a private Member’s Bill through Parliament. I am very pleased to be able to support him today, and I hope the nature of the Bill means it will sail through the House of Lords quickly, too.