Merchant Shipping (Homosexual Conduct) Bill — House of Commons, 2017-03-24
Topic: Civil Rights
Philip Andrew Davies (Conservative, Centre-right): 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’.