Merchant Shipping (Homosexual Conduct) Bill
Friday 24th March 2017
(7 years, 1 month ago)
Commons ChamberMerchant Shipping (Homosexual Conduct) Act 2017 View all Merchant Shipping (Homosexual Conduct) Act 2017 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Consideration of Bill Amendments as at 24 March 2017 - (24 Mar 2017)
Mr Christopher Chope (Christchurch) (Con)
I beg to move amendment 1, page 1, line 4, at end insert—
‘(2) Subsection (1) shall have effect and be taken always to have had effect from 3 November 1994.”
This amendment would make the repeal of sections 146(3) and 147(3) of the Criminal Justice and Public Order Act 1994 retrospective to the date they came into operation.
I hope that the amendment will find favour with the House and with the Bill’s promoter, my hon. Friend the Member for Salisbury (John Glen), whom I congratulate on having taken the Bill so far.
Sir Greg Knight (East Yorkshire) (Con)
My hon. Friend is a passionate democrat. Does he not agree that there is something profoundly undemocratic about seeking to make a retrospective change to the law?
Mr Chope
I would not use the term undemocratic. If this democracy decides to make some retrospective legislation, that is an act of democracy, but I agree with my right hon. Friend that retrospective legislation must be very much the exception. In my brief remarks, I will try to spell out why I think that the Bill deals with a special situation. We know that Alan Turing, who had been convicted of a criminal offence, was pardoned by means of a retrospective Act. Subsequent legislation enabled other people who were similarly convicted to apply for their convictions to be effectively quashed.
There are other examples of retrospective legislation, but the interesting thing about the Bill is that it deals with a situation that is almost nugatory anyway. The overview of the Bill in the explanatory notes states:
“Whilst the sections are no longer of any legal effect due to other legislation (primarily, the Equality Act 2010 and regulations made under it), repealing them would both be symbolic and would prevent any misunderstanding as to their current effect.”
That seems to me to put this Bill into a completely different category from the norm of Bills that one would seek to have retrospective effect. This provision no longer has any legal effect because of other legislation. If we accept that the Bill is symbolic, what better symbol could there be than to say that at all material times this provision, which was incorporated into the Criminal Justice and Public Order Act 1994 by a Back-Bench amendment, is deemed to have had no effect? It seems to me that my amendment meets the test of special circumstances—a test that, I am the first to accept, we should always apply when considering whether to countenance retrospective 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.
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.
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 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.
Andy McDonald (Middlesbrough) (Lab)
Let me begin by briefly addressing the amendment to clause 2 of the Bill made in Committee, which we supported there. It is right that the Bill should come into force immediately on receiving Royal Assent, rather than at the end of two months. The sooner this change to the law is made, the better. In that spirit, let me move straight to the amendment tabled by the hon. Member for Christchurch (Mr Chope). Labour appreciates that the amendment is well intentioned. We also acknowledge that it is, in principle, certainly right to seek redress for any members of the merchant navy who were dismissed on the ground of homosexual conduct between the passing of the Criminal Justice and Public Order Act 1994 and the Equality Act 2010. None the less, retrospective legislation is set into law only in rare and exceptional circumstances, and we do not believe, on this occasion, that voting for this amendment to the Bill would be appropriate.
My hon. Friend the brilliant Member for Cambridge (Daniel Zeichner) pointed out in Committee that, as the provisions to be repealed are now legally null and void, this Bill is a simple, symbolic gesture that will tidy up existing legislation. Accordingly, the Bill does not aim to provide redress for those members of the merchant navy affected by the provisions to be repealed, so the amendment tabled by the hon. Gentleman does not fit with the purpose of the Bill. Labour will therefore not be supporting the amendment today.
The Minister of State, Department for Transport (Mr John Hayes)
Seneca the Younger said:
“If one does not know to which port one is sailing, no wind is favourable.”
It is certainly true that my hon. Friend the Member for Salisbury (John Glen) knew exactly to which port he was sailing when he introduced this Bill, and I congratulate him on his hard work and persistence. It is an important measure that puts right a wrong. I also thank my hon. Friend the Member for Christchurch (Mr Chope) for his thought and diligence. As the hon. Member for Middlesbrough (Andy McDonald) said and for the reasons set out in the thoughtful contribution of my hon. Friend the Member for Salisbury, it is understandable that we should wish that this Bill had been introduced earlier than it has been.
Mr Chope
We have had an excellent, high-quality debate on this issue, and I have listened carefully to the points that have been made. I am indebted to my hon. Friend the Member for Salisbury (John Glen) for having considered the amendment so seriously. He went to a lot of effort, and we have been in discussions about it. I heard what my hon. Friend the Member for Shipley (Philip Davies) said and noted his public torment about whether to support the amendment. Ultimately, I am persuaded by my hon. Friend the Member for Salisbury and by the Minister that if we make the measure retrospective, it might cause uncertainty for those people—we know who they are—who were dismissed from the merchant navy between 1994 and the time when such grounds for dismissal became unlawful under other legislation. I would not want to achieve that objective, which would be an unintended consequence.
I am with all those hon. and right hon. Members who deplore retrospective legislation, and this debate has been useful in securing from the Government and others a reaffirmation of our disgust and our rejection of the principle of retrospective legislation, even to the extent that we will not make symbolic legislation retrospective. This has been a useful exercise.
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Third Reading
John Glen
I beg to move, That the Bill be now read the Third time.
I will not detain the House for long. I am grateful to have reached this point, and I wish the Bill Godspeed as it is sent to the other place. As hon. Members have noted throughout its passage, the Bill is short and simple. However, what it symbolises and the lasting impact it will have are about more than the repeal of sections 146(4) and 147(3) of the Criminal Justice and Public Order Act 1994. The Bill sends the important message that, when it comes to employment in this country, what matters is a person’s ability to do the job, not their gender, age, ethnicity, religion or sexuality. By passing the Bill we make a clear statement that employment discrimination on the basis of sexual orientation has no place in our country. We should not underestimate the importance of that statement.
Looking back at the Bill’s previous stages, I am sure that hon. Members will recall the powerful speech made on Second Reading by my hon. Friend the Member for Milton Keynes South (Iain Stewart) and his moving remarks on how legislation previously left him feeling unable to pursue the career of his choice. We want to send a clear message to younger generations, and to anyone who might have been confused upon reading the 1994 Act, that sexual orientation is not a basis for employment discrimination in the merchant navy or anywhere else.
I am pleased that the Bill is supported by hon. Members on both sides of the House, and that they have noted the important reassurance and clarity that it provides. I thank hon. Members who served on the Public Bill Committee, particularly my hon. Friend the Member for Corby (Tom Pursglove) for his helpful input on an amendment. The Bill will now come into force on the day it becomes law, further reinforcing the House’s commitment to the principles on which the Bill stands. I also thank my right hon. Friend the Minister for his support throughout the Bill’s passage.
Finally, it only remains for me to wish the Bill safe passage as it now goes to the other place, which I hope will share the conviction of this House that employment discrimination on the basis of sexual orientation is wrong and that it is time for the entirety of our statute book fully to reflect that reality.
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.
Andy McDonald
I will keep my comments brief, as the point I wish to make is straightforward and does not require a lengthy speech. Labour Members whole- heartedly support this Bill and what it represents, and I congratulate the hon. Member for Salisbury (John Glen) on introducing it. By doing so, he has focused our attention on anachronistic and unfair provisions from the Criminal Justice and Public Order Act 1994, which suggest that it would be lawful to dismiss a seafarer for a homosexual act. This Bill would remove ambiguities surrounding whether it is legal to dismiss a seafarer on the basis of such an act, but, as has been pointed out, the discriminatory provisions targeted by the Bill have been superseded by current equality legislation, primarily the 2010 Act.
The Bill is therefore, ultimately, symbolic, but importantly so, as we should not underestimate the importance and power of symbols. We believe that this Bill, which would amend legislation to better reflect the values of equal rights to which we now adhere, is a powerful symbol, and Labour Members are pleased to give it our support.
Mr Hayes
Nothing I say will either better the persuasive advocacy of my hon. Friend the Member for Salisbury (John Glen) or add to the straightforward certainty about this Bill’s virtues. Quite simply, it speaks for itself.
Question put and agreed to.
Bill accordingly read the Third time and passed.