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Sexual Orientation Discrimination Bill Hl

Volume 571: debated on Wednesday 1 May 1996

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8.25 p.m.

Read a third time.

Clause 2 [ Interpretation]:

The noble Lord said: My Lords, in moving the amendment, I shall, for the convenience of the House, speak also to Amendment No. 2 which is consequential. So far as concerns the English language, Acts of Parliament ought to set the highest possible standards. Those responsible for drafting statutes should resist siren voices urging them to lower standards whether for populist or any other reasons. The word "homosexuality" derives from a Greek word meaning same and not from the Latin word meaning man. For anyone who doubts that fact, perhaps they should consider the Italian translation, which is omosessualitá, not uomosessualitá, as would be the case if the word had anything to do with man or with "male".

To say without a prefix simply, homosexual or lesbian is, therefore, a tautology and the equivalent of saying "human beings or women" which, as I said last time, is considerably insulting to women. As a matter of fact, to incorporate the word "lesbian" itself in an Act of Parliament is cutting it a little fine as the word also means an inhabitant of the isle of Lesbos—whether they be homosexual or heterosexual. Indeed, in the Shorter Oxford Dictionary in the Library of the House which was published in 1973 that is the first definition given. However, I am prepared to give the noble Baroness and her friends the benefit of the doubt in that respect.

In Committee the noble Earl, Lord Russell, who I am sorry is not present in the Chamber this evening—I somehow assumed that he certainly would be—maintained that Acts of Parliament dealing with sexual matters should be framed in the language understood by the under 25s—presumably the sort of under 25s who wear baseball caps back to front. If that were taken to its logical conclusion, the possessive "its" in all such Bills would be spelt with an apostrophe, all punctuation marks other than commas would be eliminated, "fortuitous" would be used when "fortunate" was meant, "infer" would be employed when "imply" was intended, and so on. However, in reality, the young people about whom the noble Earl was concerned rarely, if ever, consult Acts of Parliament. They get their information elsewhere. Acts of Parliament are meant essentially for lawyers and, therefore, they need to be written in totally unambiguous English.

The noble Lord, Lord Airedale, whom we shall all miss, was a stickler for correct drafting and the proper use of English. As a tribute to Lord Airedale, perhaps the sponsors of the Bill might consider accepting the amendment: otherwise I shall have to test the opinion of the House. I beg to move.

My Lords, I am a little confused about the reasons given by the noble Lord for his amendment. When listening to the noble Lord on Second Reading, I thought that he was against the inclusion of the word "lesbian". I believed that he was against the inclusion of that word because he took the view that the word "homosexual" includes, as it were, the word "lesbian" regarding single-sex relations of both men and women. However, that is not what his amendment says. Indeed, the word "lesbian" is to be kept in.

The reason given by the noble Lord for what he seeks to do is that the word "homosexual" is rooted in the Greek. That, of course, follows the view that if you want to know what a word means then you go hack to the first people who used it. A word has roots that never change. Yet if one opens any good edition of the works of Shakespeare at any page one finds that at least 10 of the words on that page need to be described in the footnotes because they no longer mean what they meant when Shakespeare used them. Words do not have roots; words have uses, and uses change.

One can consult a dictionary. A dictionary freezes the use of a word at the time when the dictionary was published, or at the time when the word was researched when it was entered in the dictionary. The noble Lord is right in a sense about the word "homosexual". The Oxford English Dictionary expresses well the word's tell-tale ambiguity. The dictionary states that "homosexual" means:
"A sexual propensity for one's own sex".
It does not specify which sex, or both, or either. It states:
"A sexual propensity for one's own sex".
When the word was used in 1897 there was a great deal of ambiguity about what "homosexual" meant as a word. I am sure that many Members of the House know that when it was first decided that homosexuality should be made a criminal offence the government wanted to make it clear that that applied to both sexes. However, the Queen said she could not imagine that it applied to women; therefore it does not apply to women in the sense that, in the law, it is not a criminal offence as regards women. Therefore "homosexual" is an ambiguous word which can mean different things.

I believe those women who wanted to campaign for sexual orientation to be made more accepted—and for it not to be discriminated against—felt that they wanted to make it quite clear that they were talking about themselves. Therefore they introduced the word "lesbian". If the noble Lord was really consistent he would either remove "lesbian" or he would include "gay". I am sure that many people outside this House will refer to this Bill as a Bill to prevent discrimination against gays and lesbians. Those are the phrases in the vernacular. "Homosexual" is a word in the dictionary; it is ambiguous in the dictionary. I do not know why the noble Lord has tabled the amendment and how it is supposed to clarify anything. I think I understand why the noble Lord has not included the word "gay" because of course that makes my point again that one cannot refer back to ancient usage. One cannot refer back to old dictionary definitions because the dictionary states—I cannot find a dictionary that states anything better than this—that "gay" means,
"full of or disposed to joy".
I suggest that that is not what it means in the vernacular. In the Bill we must have words which reflect the vernacular. I think that the words in this Bill reflect that rather well.

8.30 p.m.

My Lords, the noble Lord tabled similar amendments at the Committee stage of the Bill. I said then that I was not happy about them. I make no secret of the fact that I should like my Bill to pass unamended this evening. I have sympathy with the desire of the noble Lord to ensure respect for the English language. As I said, he made similar points at an earlier stage in the Bill. However, I also believe—as does my noble friend Lord McCarthy—that legislation should be worded in such a way as to be comprehensible, particularly to those who are likely to be affected by it. I know that that is sometimes difficult because the language also has to be capable of interpretation in court, but language itself—as the noble Lord, Lord McCarthy, said—is not set in tablets of stone. It is constantly changing and evolving. Words now appear in the English dictionary that were not there at all some 20 or 30 years ago or, if they were, they now bear a different meaning.

The wording used in the Bill is comprehensible to the people who are most likely to be affected by it and who look to it to provide them with some sort of legal protection against what they feel is unjustified discrimination. The Bill has been drafted for me by lawyers working for the Stonewall Group of which I am a member. It is a parliamentary group dedicated to the removal of discrimination on grounds of sexual orientation. We have set out in the Bill precisely what we mean by that term. I hope therefore that the noble Lord will not press his amendment this evening. I take it that the mere fact he has tabled amendments to my Bill means that he has no quarrel with the main thrust of it; otherwise it would not be worth tabling amendments at all. I assure him, however, that those most likely to be affected by this Bill prefer the wording unamended. I hope that that will cause him not to press the amendments this evening.

My Lords, I thank both speakers who have contributed so far to the debate. I must say I am surprised that the Government have not said what their views are because, after all, they are probably the ultimate guardians of the English language, as they are in charge of a Bill when it is finally on its way to the statute book.

I am sorry that the noble Lord, Lord McCarthy, was not present at the Committee stage. He was obviously busy. However, I am more sorry that he has not taken the trouble to read the Committee stage proceedings because, if he had, he would understand why I am moving the amendment. He is absolutely right. At Second Reading I said that I preferred the elimination of the word "lesbian". However, being a fair minded and reasonable person I always try to compromise and I thought that I would try to meet the noble Baroness, Lady Turner, half way and include "lesbian", although I do not entirely like it. However, it is certainly not as ambiguous as leaving the wording in the Bill as it stands.

I hope, and suppose, that the noble Lord, Lord McCarthy, was joking when he suggested including the word "gay" in the Bill. I suppose that is the path down which we are descending. I have to say to him that millions of people throughout the English speaking world resent very much the perversion of that word. I could not care less what consenting adults do in the privacy of their houses provided that—as our Edwardian forebears used to say—they do not do it in the street and frighten the horses. But I object to them messing about with the English language and putting pressure to bear upon well-meaning sponsors of the Bill—I accept that the noble Baroness is extremely well meaning—to go along with over-rigid and dogmatic views. Although it probably will not do any good I wish to test the opinion of the House.

On Question, amendment negatived.

Clause 6 [ Equal Pay Act 1970]:

had given notice of his intention to move Amendment No. 2:

Page 3, line 17, at end insert ("male").

The noble Lord said: My Lords, we went through the arguments for this amendment in some detail five weeks ago. I do not intend to repeat the arguments again. Suffice it to say that if service chiefs—to lapse into journalese—are firmly convinced that—

My Lords, I hope I may interrupt the noble Lord. I think he is speaking to Amendment No. 3. I got the gist of that from what he was beginning to say. I hope that he will not move Amendment No. 2 and will move on to Amendment No. 3.

My Lords, I apologise. Of course the noble Lord is absolutely right. I shall not move Amendment No. 2.

[ Amendment No. 2 not moved.]

moved Amendment No. 3:

After Clause 6, insert the following new clause—


(" . 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: My Lords, I shall start again from scratch. We went through the arguments for this amendment in some detail five weeks ago and I do not intend to repeat them again. Suffice it to say that if service chiefs—to lapse into journalese—are firmly convinced, as they seem to be, that to abolish the ban on homosexuals in the Armed Forces would adversely affect the morale, discipline and effectiveness of those forces, that should be good enough for anyone.

There are two points I nevertheless wish to make in response to the arguments—or, I suppose, counter-arguments if one is being specific—that the noble Baroness, Lady Turner, made on a previous occasion. She pointed out that homosexuals, like women, could still be excluded from combat duties if the Bill goes through in another place unamended. Theoretically I am sure she is right but practically I guess that it would be an administrative nightmare. After all women are easily identifiable in an emergency. Homosexuals generally cannot be identified unless they wear some sort of identifying badge. In view of what happened in the 1930s and 1940s, I am sure we would not want that for one single second. Homosexuals could, of course, be confined to the catering corps or similar non-combatant units; but that in itself might be judged to be an act of discrimination.

The noble Baroness went on to say that, since the issue is currently being considered by a Commons Select Committee, and indeed elsewhere in the Commons, this House should not interfere. The fact that the Commons quite rightly has the last word does not preclude us from expressing our opinion, which the other place can accept, reject or ignore as it chooses.

There is another aspect to the matter. If the Bill goes through unamended today, theoretically it could be on the statute book next month, before the Commons Select Committee has finished its deliberations. We should then have pre-empted the committee's findings. It is surely better to put the matter on ice until the other place has reported, thereby avoiding any possible clash between the two Houses. Accordingly, I beg to move.

My Lords, as the noble Lord, Lord Monson, made quite clear, and as was made clear by me when I had the honour to serve in the Ministry of Defence and by others in that department, homosexuality is incompatible with service life. I do not think it is necessary for me to rehearse on behalf of the Government the arguments that we have put before the House both at earlier stages of this Bill and when the matter has been debated on other occasions. Obviously, the issue will be the subject of discussions on the Armed Forces Bill in another place; it will come before this House and can be discussed at that time.

We have made our position in relation to this Bill fairly clear. We believe that it is neither necessary nor desirable. We hope that when it goes to another place, another place will look at it in the appropriate manner, and therefore it is probably unnecessary for amendments to the Bill to be moved at this stage. However, I am sure that the noble Lord, Lord Monson, is right to stress the rightness and correctness of the Government's stance on this particular issue. I hope that he will feel it unnecessary to divide the House, given the assurance that Her Majesty's Government, the Ministry of Defence, service chiefs and all involved certainly believe very strongly that their policy is the right one and should be pursued. I hope that the noble Lord will not feel it necessary to press his amendment.

My Lords, it gives me great pleasure very largely to agree with the Minister—if not with his reasons. My view, and the view on this side of the House, is that we would rather this amendment were not pressed because we do not want to settle the issue at all. We do not believe that the Bill as it stands does settle the issue. We believe that it should be left to the kind of processes that are going on in another place and through the courts. The noble Lord's amendment would settle the issue and make it impossible to change the present situation. That would be wrong. The subject is up for review; for that reason, we do not think that a decision embodied in this Bill is appropriate.

My Lords, I share the view just enunciated by my noble friend Lord McCarthy on the Front Bench. The noble Lord is making another attempt to import into this Bill a provision relating to the Armed Forces when, as I explained at earlier stages, the Bill seeks to deal with discrimination in public and private employment and not in the Armed Forces. It so happens that, as I made clear, I am against discrimination in the Armed Forces as well. It seems absurd to me that in times of war, when real danger exists and it is necessary for members of the Armed Forces to be able to rely absolutely on each other, in most circumstances we have conscription and the authorities do not bother much then about whether people are gay or lesbian. During the last war there were lots of instances of such liaisons; they were well known about. But nobody took any notice because everybody was united around the common danger and the need to work together to oppose it.

The main reason for my opposition this evening has already been stated. The issue will be debated in another place. It seems quite wrong for this House to pre-empt the discussions that will take place perhaps as early as next week in the other place on the whole issue of the Armed Forces and discrimination within them.

In this Bill, we attempt to remove fear of victimisation and discrimination from people who have done nothing wrong and whose only offence in the eyes of prejudiced people who have power over them at work is that their sexual preferences are not heterosexual ones. I therefore hope that the noble Lord, Lord Monson, will not press his amendment this evening but will take the advice offered by the Minister.

8.45 p.m.

My Lords, I am very grateful to the noble Lord, Lord Henley, for his intervention. It was quite helpful.

The noble Lord, Lord McCarthy, implied that I wanted to settle the issue by preventing any relaxation of the ban as it stands. That is not the case at all. In substance, this amendment would not do that: it would in fact hold the matter open. It would simply mean that the question was held over. If the reference to the Armed Forces was not included in this Bill, it would not prevent any subsequent legislation from including it if both Houses of Parliament thought that was the proper thing to do.

If the Bill passes through this House unamended, and passes though the other place unamended before the Select Committee has had a chance to complete its report, it would mean that the issue was actually settled in the opposite direction. The service would be obliged to admit homosexuals, starting virtually right away. In view of the rather sanguine approach from the Government Benches, I can only suppose that there is perhaps a plan to see that, when the Bill reaches the other place, that does not actually happen. I cannot believe that they would wish the Bill to go through as it stands.

The noble Baroness talked, as others have done at earlier stages, about what happened in World War II. I accept what she said. I did not get into an argument on the general merits of admitting homosexuals because that was not the point. We discussed that last time. The only point I made was that nearly all senior officers think that lifting the ban is a bad idea. They know what they are talking about probably more than almost any of us here do. On balance, one should be prepared to accept their judgment: one does not have to, but as a general rule it seems the sensible thing to do. Since I have had no further support, I do not intend to press this matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 4:

After Clause 6, insert the following new clause—


(" . 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: My Lords, now we return to what might be described as the "Englishman's home is his castle" amendment. Of course, that is not only true of the Englishman; the same is true for the Scot, the Welshman and the Ulsterman, who also regards his home as his castle.

It is no secret that I do not believe that any anti-discrimination legislation should apply to private households. If some individuals are so eccentric as to prefer to employ only red-haired, blue-eyed, left-handed, chain-smoking, Welsh-speaking women over six feet tall in their household, they should have the perfect right to do so—if they can find such individuals. They do have that right where self-employed people working in a house are concerned—builders, decorators, agency nurses, piano teachers, foreign language teachers and so on. So it is a slight anomaly that they do not when they employ somebody.

My view may be a minority one, although I doubt it. What I am certain is a majority view is that nobody should be forced to invite into their home, on either a permanent or a temporary basis, people whose personal habits they find distasteful. Whether, objectively, they are reasonable or unreasonable in that dislike is neither here nor there. That is what they feel as individuals. It is their home and, however irrational it may seem to others, they have the right to keep out people whom they do not like.

The noble Baroness suggested that acceptance of the amendment, which is the same as one which I moved at Report stage, might lead to a cleaner being sacked on suspicion of being a lesbian. I too deplore the idea of someone who is doing a good job being sacked in that way, but, frankly, the scenario is unrealistic. The supply: demand ratio for people doing that kind of work is such that anyone who is dismissed would find another job within 24 hours.

Nor should the dangers facing households which contain young people be ignored. It is all very well to claim that the Bill does not protect paedophiles. (Perhaps I have not searched hard enough but I cannot see that the Bill specifically excludes them.) The point is that an individual who lusts after a girl of 14 or 15 or a boy of 16 or 17 does not come into the category of paedophiles. If this clause is unamended it will be illegal not to employ such people.

Finally, I reiterate that the amendment cuts both ways. A homosexual couple who, perhaps understandably, wish to employ exclusively homosexuals have just as much right to their preferences as heterosexual couples who wish to employ only heterosexuals. I beg to move.

My Lords, I may not have heard the noble Lord correctly in his answer to the example given by the noble Baroness, Lady Turner. It concerned someone who might be dismissed for the imagined reason that the person was homosexual and he said that it would not matter. Even if it did occur, he said that in any case anyone who was dismissed could find a job within 24 hours. Is that the noble Lord's serious description of the present state of the labour market? Does he suggest that anyone who is dismissed can find a job within 24 hours?

My Lords, with the leave of the House, yes, if the person is doing that kind of job. There are always more people looking for employees to do jobs like cleaning than are available.

My Lords, all I can say is that that is not the labour market that I know. If there were far more people looking for jobs than there were jobs, it would show how important it is to keep the provision in the Bill. It would mean that the labour market was very dependent and that all the powers were with the employer and none with the worker.

I read in Hansard the Committee stage of the Bill and thought that at one point the noble Lord wondered how the provision got into the Bill. He said that once upon a time it was not the case for sex discrimination. The provision was put in because I am afraid of the EC. We were told that we could not have legislation like that and were made to put it in. The European Commission is quite right, because there is a dependent, subservient labour market in domestic servants and au pair girls. People can get away with murder. Those who go into that labour market need as much statutory protection as they can get.

My Lords, again the noble Lord put down a similar amendment to the one that he proposed at Committee and Report stages. Again, I asked that he should not press it because I see no reason for it. It seems to me that it is based on the assumption, which the noble Lord underlined in his contribution this evening, that there is likely to be more depravity leading to unacceptable behaviour in the case of someone who is gay or lesbian than with a heterosexual. Clearly that is rubbish.

He seems to suggest that it is all right to dismiss a cleaner because he or she turns out to be gay or lesbian. That is surely unfair and unacceptable. All it does is to pander to what I describe as tabloid prejudice. Furthermore, I point out, as I did earlier at the Committee stage, that the Bill is based very much on the legislation that we already have in regard to gender equality. The same provisions in regard to genuine occupational qualification exist in the Bill and are spelt out in Clause 3(2) of our Bill. That must be a safeguard. I hope, therefore, that the amendment will be withdrawn.

My Lords, I do not suggest that homosexuals are more depraved than heterosexuals, but that people have the right to say who shall come into their homes. If the Bill applied only to people who are already in employment I would be more sympathetic. One has a certain natural distaste when people are sacked when they are already in a job, but the Bill is not confined to that. It also applies to people who are seeking a job in the first place.

The noble Baroness said that the provision follows the example set by gender and so on. But surely she will agree that there is a difference between gender and sexual habits. People might not worry about one but feel strongly about the other. I believe that an Englishman's home is his castle and I am prepared to test the opinion of the House.

On Question, amendment negatived.

My Lords, I beg to move, That the Bill do now pass.

Moved, That the Bill do now pass.—(Baroness Turner of Camden.)

On Question, Bill passed, and sent to the Commons.