HL Deb 27 March 1996 vol 570 cc1806-16

9.57 p.m.

Baroness Turner of Camden

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Baroness Turner of Camden.)

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITIEES(Lord Dean of Harptree) in the Chair.]

Clause 1 [Discrimination on grounds of sexual orientation in employment field]:

Clause 1 agreed to.

Clause 2 [Interpretation]:

Lord Monson moved Amendment No. 1: Page 2, line 18, at end insert ("male").

The noble Lord said: In moving the above amendment, I shall, with the leave of the Committee, speak also to Amendment No. 3. It may seem like a technical amendment but it is rather more than that. I am sure that every Member of the Committee will agree that Acts of Parliament ought rigorously to safeguard the integrity of the English language. I pointed out on Second Reading that the word "lesbian" was a tautology as the word "homosexual" embraces lesbian, so to speak. However, as I interpreted it, the noble Baroness, Lady Turner, argued in effect that Acts of Parliament ought to be intelligible to the individual in the street who probably would not realise that "homo" derives from Greek and not from Latin and has nothing whatever to do with man.

Accordingly, I suggest the compromise to be found in the amendment whereby the word "lesbian" would be retained. In that case, it is essential to insert the word "male" before "homosexual" otherwise the phrasing would be nonsensical. Indeed, it would be rather like stating: This Act applies, firstly, to human beings and secondly to women". I am sure that women would be most insulted if that were to happen. I beg to move.

The Minister of State, Department for Education and Employment (Lord Henley)

I did not intend to intervene on these two amendments or, for that matter, in the next grouping of amendments to be moved by the noble Lord, Lord Monson. I made the Government's position quite clear on Second Reading. We do not believe that the Bill is either necessary or particularly desirable.

However, I should underline what the noble Lord said when moving the two amendments. If the promoters of the Bill believe that it is important, necessary or indeed desirable, obviously it is important for them to address the serious problems relating to definition and ensure that the legislation makes sense. Therefore, depending on what the noble Lord wishes to do with the amendments, I hope that those promoting the Bill will take note of what he has to say.

10 p.m.

Earl Russell

This is an unnecessary amendment. I do not think there is any doubt about what the Bill means and, while the noble Lord, Lord Monson, may be correct in his grammatical arguments, we have to face the fact that language changes. Language in this area is used by people under 25 years of age; it is used with a very different set of meanings from that with which it may be used in this Chamber. I think it reasonable, in drafting a Bill, to draft it in such a way that it will be useable to those at present under 25. Therefore, this amendment is not only unnecessary, it may even be undesirable.

Baroness Turner of Camden

I share the view that has just been expressed by the noble Earl, Lord Russell. I see no reason for this amendment. I believe that the terms used in my Bill are very widely understood. Indeed, as recently as this week there was an article by a well-known counsel, David Pannick, QC, in The Times, where he actually made use of the phraseology. He says: Discrimination against homosexuals and lesbians"— —note, "homosexuals and lesbians"— in the workplace remains common. Of course, legislation should not impose unreasonable burdens on industry. But for Parliament to do nothing would aid and abet injustice. Throughout his article he makes use of the terms which are in my Bill. As I said earlier, they are very widely understood, and I see no reason to import into the wording of my Bill the extra word referred to in the amendment. Therefore, as the sponsor of the Bill, I do not find the amendment particularly acceptable.

Lord Monson

I am grateful to the noble Lord, Lord Henley, for his support. I am afraid I cannot say the same for the speeches of the noble Earl, Lord Russell, or the noble Baroness. As for people under 25 using incorrect English, I believe we should do well to educate people and to encourage the use of correct English rather than succumb to what they happen to feel like speaking at any particular moment. Perhaps we should also educate some of our QCs, too, if they cannot speak English properly.

Furthermore, my amendment does not make the clause less easy to understand, even for those who are ignorant of the slightest degree of Greek or Latin. It simply clarifies it. However, at this stage of the evening in an exceptionally thin House, there seems no point in pushing the matter to a Division. It would give a distorted result. Therefore, I beg leave to withdraw the amendment while reserving the right to reintroduce it at a later stage.

Amendment, by leave, withdrawn.

Lord Monson moved Amendment No. 2: Page 2, line 19, leave out ("lesbian or bisexual") and insert ("or lesbian").

The noble Lord said: With the leave of the Committee, in moving Amendment No. 2, I will speak at the same time to Amendment No. 4. These are probing amendments. At Second Reading, I questioned whether genuine bisexual orientation existed. One hundred per cent. homosexuals who are quite unable to have relations with the opposite sex fall into a different category. One has to feel sorry for them and a case could be made for outlawing discrimination against this specific group, although it would still be anomalous, as there would remain many other physical conditions against which it would remain perfectly legal to discriminate. However, bisexuality is surely a matter of choice, of taste, of convenience. The Sunday Telegraph last Sunday on page 27 described a left-wing university in California where bisexual experimentation was almost compulsory as a result of peer group pressure. The place seems to be stuck in a 1960s time-warp, the idea being to demonstrate contempt for bourgeois conventions.

At Second Reading I spoke of behaviour in single sex institutions and of the cynical bisexual sensualist to be found in the novel of Simon Raven. A few such characters exist in real life. This group cite the Ancient Greeks to justify their behaviour, but the point about the Ancient Greeks is not that they possessed an abundance of "bisexual genes" but that they did not subscribe to Judaeo-Christian morality. There were therefore no religious or cultural barriers to their having sexual relations with almost anything that moved, if they felt so inclined. The Ancient Greeks had a word for it—hedonism.

In a free society people have the right to be hedonistic or self-indulgent if they choose, but in return they should not expect the civil and criminal law to force other people to welcome them with open arms, metaphorically speaking. If, and only if, medical evidence can be produced to demonstrate that a substantial proportion of bisexuals genuinely cannot help their behaviour, then I might be prepared to change my mind, but not otherwise. I beg to move.

Lord Rea

I feel that the noble Lord by his speech hoists himself by his own petard because if people can be persuaded—if you like—into bisexual activity so easily as he suggests, it emphasises the point that perhaps many of us are possibly a little ambivalent in our sexual orientation, much more so perhaps than is commonly admitted. If that is the case, it seems to be all the more important that someone who has been labelled as bisexual should not be discriminated against in questions of employment. I found the noble Lord's argument singularly unconvincing.

Earl Russell

I noticed with interest the remarks of the noble Lord, Lord Monson, on this subject at Second Reading. I very nearly challenged them then. He is, I believe, quite seriously mistaken when he queries the concept of a bisexual orientation. To argue that case I need not take him to California; I take him no further than Whitehall Palace, to the case of King James VI and I—a fairly well documented life. There is no doubt whatever of James's homosexuality. He had male lovers at various stages of his life from his teens down to his 60s, but he also had a long marriage and three children begotten in lawful wedlock. If that does not make a person bisexual, I do not know what does.

There are also a number of people of a predominantly homosexual orientation who at least once in their lives have found themselves attracted by a woman. One must consider the existence of these people and one must have a law that provides for them. If this amendment were to be carried, we would have the potentially illogical and indeed confusing situation that heterosexuals are protected from discrimination, homosexuals are protected from discrimination, but those who have experience of both ways of life are not protected at all. It gets a little like Hilaire Belloc's garden party and the people "in between" look poor and underdone and harassed and mean and horribly embarrassed. I really do not think that that is necessary. One must also consider the effect of introducing an amendment which might risk disqualifying from the protection of the Bill anyone who has had one heterosexual experience. One effect of this, of course, is that anyone who is predominantly homosexual in orientation would be deeply discouraged from attempting any heterosexual experience, which would mean that any prospect of their orientation changing—as has been known—would be very much reduced. I wonder whether that was what the noble Lord intended.

One must also consider the possibility of an employer, perhaps one suffering from a great deal of prejudice, who might search to find this single heterosexual experience to justify a dismissal which perhaps might have been undertaken purely for economic reasons. I do not know also whether the noble Lord is familiar with the case of Pepper v. Hart and its implications. It is now possible for judges to look, if there is doubt, at what was said in the House. That means that the effect of having the word "bisexual" in the Bill and then cutting it out again would be different from the effect of never having included it in the first place. The courts would see a deliberate desire to exclude, which would mean that one lot would be included, the other lot would be included and the people in between would be left to Belloc's garden party. I see no sense in that.

Baroness Turner of Camden

I agree entirely with the noble Earl on this amendment. I find it unacceptable; it makes no sense whatever to me. It means that, if the Bill went through, an individual who was totally homosexual or lesbian would be covered by the protection of the new legislation, but one who was mainly heterosexual but also had orientation occasionally towards a person of the same sex would not have protection. That would be quite unacceptable and would not fall within the general feeling of the new legislation.

Oscar Wilde was bisexual—a well documented case to which I referred at Second Reading. As we know, he had male lovers but he also had a family and children. There are many cases of bisexuals and I am surprised that the noble Lord, Lord Monson, should believe apparently that the category does not exist. It does and we want it to have the protection of the legislation. I oppose the amendment.

Lord Monson

The noble Lord, Lord Rea, and the noble Earl, Lord Russell, accused me of missing the point. With respect, I suggest that it is they who have missed the point. The fact that James I had relations with both men and women does not prove that he was a compulsive bisexual. It shows that he was self-indulgent, spoilt and hedonistic and could get away with it by virtue of being a king.

Earl Russell

Can the noble Lord tell me how he knows that?

Lord Monson

I do not know it, but suspect that, if he had not been a king but had been a serf or someone in those days of relatively low status, subject to the ecclesiastical and criminal law of the day, he could have controlled his urges, had he wished to. He did not need to because he was king.

I said that this was a probing amendment and that I was prepared to change my mind on the production of solid medical evidence to the contrary. I do not believe that we have had that solid medical evidence, despite what the noble Lord, Lord Rea, said. He did not give medical grounds for his assertion. Nevertheless, for the time being I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 agreed to.

Clauses 3 to 5 agreed to.

Clause 6 [Equal Pay Act 1970.]:

[Amendments Nos. 3 and 4 not moved.]

Clause 6 agreed to.

Lord Monson moved Amendment No. 5: After Clause 6, insert the following new clause—

ARMED FORCES (" Nothing in this Act applies to any person serving as a member of the naval, military or air forces of the Crown or to any person employed by an association established for the purposes of Part VI of the Reserve Forces Act 1980.").

The noble Lord said: When one considers the hours and hours spent arguing over race relations, sex discrimination and disability legislation, it is curious that the Committee is so thin tonight when we are discussing matters of great importance. I am the last person who should move the amendment since I did not serve in the Armed Forces and never rose above the rank of lance-corporal in the school cadet corps. However, no one else has added their name to the amendment, so it falls to me to move it.

I am happy totally to trust the judgment of senior officers who say, after careful consideration, that they do not want the existing homosexual ban in the Armed Forces removed. However, I wish to make two additional points. The main purpose of the Armed Forces is not to provide employment. If it were, the case for the ban might be a little weaker. That may seem self-evident, but I well remember watching the news at the time when the task force was being despatched to the Falklands. Angry mothers were being interviewed: "My boy did not join the Army to be shot at", exclaimed one, "he joined to learn a trade". Vigorous nods of assent came from half a dozen other mothers in the background.

The purpose of the Armed Forces is not to teach a trade but to defend this country in an increasingly dangerous age. The Japanese-American professor who claims that we have now reached the end of history and can look forward to 1,000 years of peace and prosperity is talking through his hat in my opinion.

The second point is this. We hear a lot from activist homosexuals and their supporters about the disappointment and sadness homosexuals feel about being excluded from the services. I do not doubt that that is the case. But there is another side to the story.

One Saturday afternoon last November I was driving down to Kent and switched on my car radio to find a phone-in taking place on the subject of homosexuals in the Armed Forces. The most impressive caller was an intelligent and articulate young woman who told the audience that she had always wanted to join the Navy since she was a very small girl. In due course she did so, progressed very well, obtained promotion and was extremely happy in her job. Unfortunately, she then encountered a lesbian superior officer who constantly made passes and tried to get her into bed, but who was astute enough to do that when there were no witnesses present. The girl was driven to distraction. She did not want to complain, partly because of reluctance to let the side down and partly because, in the absence of witnesses, she doubted whether she would be believed. In the end, in despair she resigned, her long-hoped-for naval career at an end.

I know it would remain an offence, were this Bill to go through unamended, for an officer to make a pass at a subordinate. But that sort of incident is bound to become more frequent if the ban disappears. I beg to move.

10.15 p.m.

Baroness Turner of Camden

I hope that the noble Lord will not feel that he has to press ahead with this amendment tonight. As I said at Second Reading, my Bill is essentially an employment Bill. It is intended to extend the provisions of the Sex Discrimination Act to give protection to homosexuals, lesbians and bisexuals. That legislation, anyway, excludes women in relation to combat duties. That presumably would apply here. Indeed, the relevant section of that Act states that nothing in the Act shall render unlawful an act done for the purpose of ensuring the combat effectiveness of the naval, military or air forces of the Crown. So it is quite likely that the MoD would anyhow argue that the ban was necessary to ensure combat effectiveness.

It would be quite premature to try to include in this Bill a reference to the Armed Forces. Among other things, an attempt is being made, I understand, in the House of Commons by means of an amendment to the Armed Forces Bill. Quite apart from that, a Commons Select Committee is considering the whole issue in relation to the Armed Forces. The House of Commons will have an opportunity of making a determination on this issue in relation to the Armed Forces and not in regard to a straightforward employment Bill. Therefore, I hope that this amendment will not be pressed tonight. Quite frankly, it would be pre-empting a discussion which anyhow is taking place in another place and on which, obviously, there is quite a lot of controversy. Clearly, the other place must have the opportunity of making a determination on this major issue.

Lord Henley

I am very interested in the noble Baroness's remarks in terms of her interpretation of previous Acts and the whole interpretation of this Bill as it stands. I will certainly look very carefully at what she had to say and consult those who advise me in these matters. As the noble Baroness knows, I have considerable sympathy for an amendment of this sort. Like the noble Baroness, I hope that the noble Lord will not press it today for the reasons that he gave earlier.

That said, as I made quite clear earlier, we do not see it as either desirable or necessary that this particular Bill should reach the statute book. But in relation to this amendment we have made our position absolutely clear on a number of occasions. We should certainly not want provisions of the kind that the noble Lord, Lord Monson, wishes to become part of the general law as the result of the passage of this Bill. It remains our view that homosexuality is incompatible with the special conditions of service life. I expanded on that point in some detail at Second Reading and I shall be more than happy to expand on it again at this stage, should other noble Lords wish me to do so. I shall not do so on this occasion but, if I am pressed, no doubt I shall come back to it.

Earl Russell

I am very happy to be able to agree with the noble Lord, Lord Monson, about something. I agree with what he said about the Japanese professor who thought that he had discovered the end of history. In fact, he is an American-Japanese professor. But I agree that he is talking through his hat. I might have tried to wrap that comment up a little more, but I shall not argue with calling a spade a spade.

Lord Henley

If I might interrupt my noble kinsman, it might do him out of a job if the end of history came about.

Earl Russell

There is plenty of work left to do in all kinds of fields, including this Chamber.

Like the noble Lord, I am not a member of the Armed Forces. But my right honourable friend Mr. Ashdown, as is well known, was a member of the Armed Forces for quite a long time. In a speech at our party conference recently, he described how his life had been saved in battle by a gay officer who subsequently was excluded from the service because he was gay. At this time of night I am not about to start giving examples of gay people who have been extremely successful soldiers. It would be possible to keep the Chamber up all night. But there was a perfectly coherent line that in the past the Ministry of Defence could take. I agree with the line of the noble Baroness, Lady Turner; namely, that the matter is not to be settled by this Bill. But since the argument has been opened, both sides should be heard, even if only to be read in another place.

It was possible in an all male Army to argue that sex and duty did not mix. But it seems to me that the Army sold that pass as soon as it admitted women. I read in the newspaper today that in fact it is considering allowing women to take part in front-line combat. They are already allowed to sail in Royal Navy ships. It gives rise to a certain amount of trouble but I have not heard any suggestion that the trouble is insuperable.

The question is whether having homosexuals in the Armed Forces gives rise to more trouble than having men and women together in the Armed Forces. If the noble Lord's amendment is to be sustained, he has to have a reason for arguing that that is the case. I do not quite see what that reason might be. The noble Lord gave the example of a lesbian officer who kept making passes at another officer. I entirely agree with the way that he feels about that case. It was an abuse of power and should not have happened. But I am not convinced that homosexuals are in any way more given to making unwelcome advances and abusing their power in order to do so than are male heterosexuals. Were it to be proposed that male heterosexuals should be excluded from any part of the public service for that reason, I must declare an interest in the fact that I would resent such a proposal.

It seems to me that the line that we must draw is that what is an abuse is the abuse of power, the forcing of unwanted attentions, homosexual or heterosexual, and in particular the deployment of superior rank in order to do so. That is an offence whatever the sexual orientation of the one who does it and whichever sex does it. That is what we should concentrate on prohibiting.

If we were once clear as to what is the offence to which we object, we should have a better chance of creating a culture which does in fact prohibit it. I cannot see for certain anything arising through the presence of homosexuals which is on the level of the recent Tailhook Convention in the US. That resulted in the departure of an admiral from the service in circumstances in which I feel that his superiors in Washington were thinking more readily of a silver bullet than a golden handshake.

There is also the fear, regularly expressed, of living in close quarters with someone of a different sexual orientation. Again, the point stands that the culture of unwanted advances applies very much less here than it does when heterosexuals of the opposite sex are next-door. There is also a question, when one thinks about conduct prejudicial to good order and discipline, of exactly what is prejudicial to good order and discipline. I recall a former colleague—and every time I listened to the noble Baroness, Lady Faithfull, whom I much miss, I was reminded of her. A proposal was being discussed to get younger people into a university committee. The opposing argument was that the committee was too big. This lady said, "Yes, I sympathise with that argument. The committee is too big. Maybe some of the older people ought to come off it".

If we consider the question of good order and discipline, I wonder whether the prejudice to good order and discipline would arise from homosexuals who keep themselves to themselves or from those whose vigorous intolerance makes their life there so difficult. I read on the evening paper placards this morning that in the parallel case of intolerance of difference of race the Army intends to declare war on racism. I am glad to hear that. Why does it not do it here too?

Lord Rea

I wish to make only one brief point that has not so far been mentioned. It may be the case that in a few years—five, 10, who knows?—the law will change with regard to the admission of homosexuals into the Armed Forces. If so, and the noble Lord's amendment is accepted, then this Bill, were it enacted, would have to be amended and this part of it would have to be repealed. If we do not accept the amendment, that would be completely unnecessary.

Earl Attlee

I rise and declare my interest as a serving officer in the Territorial Army. The hour is late and I support the approach of the noble Baroness to this amendment. However, I look forward to a detailed debate on the topic when the Armed Forces Bill comes to this Chamber. The debate will be valuable and intense and I look forward to taking part in it. But I do not think we should discuss the matter at this hour.

Lord Monson

I am grateful to all those who contributed to this debate. The noble Baroness, Lady Turner, contends that the current law protects the services in so far as combat effectiveness is concerned. But we are not only talking about front-line jobs and combat effectiveness. We are talking of jobs throughout the armed services.

I agree with the noble Earl, Lord Russell, that abuse of power is deplorable, whoever exercises it and of whatever sexual orientation they may be. My point was that if the ban is lifted I suspect that those incidents may happen more frequently. He suggests also that I must have a reason for the amendment. My reason is that, from everything I have read, the great majority of officers, non-commissioned officers and other ranks, are against lifting the ban. I am sure that one can rely on their views. If they feel that they would be less effective as a fighting force to defend this country if the ban were lifted, we should take those views seriously.

It is late in the evening. The Committee is not representative, as I am sure Members will concede, and therefore I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Monson moved Amendment No. 6: After Clause 6, insert the following new clause—

PRIVATE HOUSEHOLDS (" . Notwithstanding section 80(1) of the 1975 Act, nothing in this Act applies to employment for the purposes of a private household.").

The noble Lord said: I cannot believe that anybody will be in opposition to this amendment. Initially, employment in private households was exempted from the provisions of the 1975 Sex Discrimination Act. However, Section 80 of that Act permitted the Secretary of State to revoke that exemption subject to parliamentary approval.

It would seem that this exemption has been revoked where sex discrimination is concerned, although I am not quite sure when that happened. However, I submit that sexual orientation is a very different matter. I cannot believe that anyone would wish to force people to employ male or female homosexuals as nannies, au pairs, gardeners, cooks or handymen against their will or for that matter to force a homosexual couple to employ a heterosexual in their household against their will. I beg to move.

10.30 p.m.

Baroness Turner of Camden

I oppose this amendment. What we are trying to do in the Bill is simply to extend the coverage of the Sex Discrimination Act to people who are homosexuals, lesbians or bisexuals and I see no reason to depart from that. We have already accepted what the Act says about genuine occupational qualifications. Indeed, Clause 3(2) of the Bill states: Sexual orientation is a genuine occupational qualification for a job only where the holder of the job provides individuals with personal services promoting, their welfare or education, or similar personal services, and those services can most effectively be provided by a person having a particular sexual orientation". That exemption clearly covers the issues about which the noble Lord, Lord Monson, seems to be concerned. The amendment would make it legal simply to sack one's cleaner because she was suspected of being lesbian. That would be very unfair and really rather unjust and it would be an issue under which people with a particular sexual orientation were being treated less favourably than they otherwise would be. That is what the Bill is all about and I really cannot accept the amendment.

Lord Henley

Unlike the noble Baroness, I understand why the noble Lord has moved the amendment and I accept that it is a sensitive issue. I agree with the noble Lord in saying that householders' rights have to he considered alongside the general principle which underpins the Bill; namely, that there should be no discrimination on the ground of sexual orientation. Having said on earlier occasions—and I reiterate it now—that we do not support the Bill, I can say that we have no particular view on this matter. We do not support the Bill but I understand the concerns behind the amendment put forward by the noble Lord.

Earl Russell

I wish to take up the noble Lord's reference to children. Nothing in the Bill does anything to help paedophiles of either sexual orientation. That is a quite separate problem. There is no tolerance for them being suggested and I only wish we knew what to do with them instead of tolerating them.

Lord Monson

I am grateful to the noble Lord, Lord Henley, for his support. I am astonished by the noble Baroness's determination to leave the Bill in the state it is so that it actually intrudes into private households in this way. The exemption for genuine occupational qualifications is not really a safeguard because the clause refers to services that can be more effectively provided. I am not talking about effectiveness. A homosexual nanny may be absolutely excellent in her way but not desirable.

As for paedophiles and protecting children, there are young men of between 16 and 18 who are not strictly, by definition, children who might be affected, so I do not think that that is a valid argument.

I shall certainly return to this matter at a later stage but, for the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Remaining clause agreed to.

House resumed: Bill reported without amendment; Report received.