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.

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[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.

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[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.