UK Parliament poised to repeal final remaining discriminatory legislation relating to homosexuality and the armed forces

Next Monday (11th January 2016), the UK Parliament will debate an amendment to the current Armed Forces Bill that has been tabled by Secretary of State for Defence, Michael Fallon. If the amendment is agreed and enacted it will repeal 24 words from statute law dealing with “homosexual acts” and the armed forces. Although it is nearly 16 years since the “ban” on gay men and lesbians serving in the armed forces was lifted – following judgments by the European Court of Human Rights in Lustig-Prean and Beckett v the United Kingdom and Smith and Grady v the United Kingdom in 1999 – Parliament has never repealed sections 146(4) and 147(3) of the Criminal Justice and Public Order Act 1994 which continue to make provision for a “homosexual act” constituting a ground for discharging a member of Her Majesty’s armed forces from the service.

Parliament’s consideration of these provisions in the 1994 Act is the result of written evidence that former Lieutenant Commander Duncan Lustig-Prean and I submitted to the Select Committee on the Armed Forces Bill in October 2015. In that submission, we set out our case for why these provisions should be repealed - which was, in essence, that they served no purpose and were discriminatory. In our view, Parliament had not simply forgotten or overlooked the 1994 provisions because they had been subject to a minor amendment by the Armed Forces Act 2006. Furthermore, they had been left untouched by the Law Commission who last reviewed the 1994 Act in 2015. Although the 1994 provisions were effectively made redundant by the change in Ministry of Defence policy relating to homosexuality and the armed forces in 2000, we argued that they could not be regarded – as is the case with any statute law currently in force – as entirely “dead letter”.

The provisions in the 1994 Act came into existence at the moment that homosexual acts ceased to be an offence under service law. They were enacted to ensure that although it would no longer be possible to prosecute personnel under the former Service Discipline Acts for engaging in a homosexual sexual act – which had previously been considered to constitute the offence of ‘disgraceful conduct’ of an ‘indecent or unnatural kind’ – the armed forces would still be able to administratively discharge (in effect, sack) gay men and lesbians. As Viscount Cranborne explained in the House of Lords, during Third Reading of the Criminal Justice and Public Order Bill, the aim was “to put on the face of the Bill a statement to the effect that the decriminalisation of homosexuality in the services … would not affect their ability to discharge homosexuals”. This reflected the dominant belief in Parliament at the time that, although it was acceptable to (albeit somewhat grudgingly) “decriminalize” homosexual sexual acts committed by service personnel, it was certainly not acceptable to continue to employ gay men and lesbians once they were “discovered”.

One of the most interesting features of the Parliamentary consideration of our proposal to repeal the provisions in the 1994 Act so far has been the unanimity among MPs and other stakeholders. When the Select Committee took oral evidence in November 2015, it put our case to a range of witnesses, which included General Sir Nick Carter (Chief of the General Staff), who all agreed that the repeal was appropriate and necessary. No member of the Select Committee dissented from that view and Kevan Jones MP – who was, until yesterday, Shadow Minister for Defence – moved an amendment to include a new clause in the current Armed Forces Bill to repeal the 1994 provisions. That amendment was deemed not to be acceptable because, since the 1994 provisions relate to the Merchant Navy as well as the Armed Forces, the Government’s view was that “it would appear unfair and inconsistent to amend the provisions in the 1994 Act only on behalf of the armed forces”.

We could see the Government’s point, but we continued to argue that the Armed Forces Bill was the most appropriate legislative vehicle for repealing discriminatory law relating to armed forces personnel. We were pleased, then, when Kevan Jones again moved his amendment when the Bill was considered in December 2015 in a Committee of the Whole House. MPs – including Martin John Docherty and Kirsten Oswald, both of the SNP – were supportive and there was again universal agreement about the need to repeal the provisions. However, the Government would still not accept the amendment because, as Mark Lancaster MP explained, although they were keen to see the legislation repealed, “[w]e would wish to repeal the legislation for both groups, but that is not possible in this Bill as the merchant navy falls under the auspices of the Department for Transport”.

It appears, from the contents of the amendment tabled by Michael Fallon, that the Government has changed its mind and now agrees that it is both appropriate and important to repeal the 1994 provisions immediately. If the House of Commons adopt the amendment at Report Stage of the Armed Forces Bill it will, upon enactment, remove the 1994 provisions relating to the armed forces and leave in place the provisions relating to the Merchant Navy (which can be repealed at the next legislative opportunity). Given that the amendment now has Government backing, it appears highly likely that it will be accepted. If it is, some might remember it as the “Kevan Jones amendment” and be grateful for the way he twice made a strong case for its inclusion.

The Parliamentary passage of this amendment to the 1994 Act tells us much about the degree of change that there has been in the armed forces, and in society more generally, in respect of issues relating to homosexuality. Next Monday, when Michael Fallon’s amendment is debated, will be the day before the 16th anniversary of the end of the “ban” on gay men and lesbians serving in the armed forces. During that time, the armed forces have gone from being homophobic institutions to being recognized as some of the most “gay friendly” workplaces in the UK. Parliamentarians, who used to fall over each other to decry the evils of homosexuals and homosexuality in the armed forces, appear united in the belief that this change has been positive and beneficial. The repeal of the provisions in the 1994 Act will have no immediate impact on serving personnel, but their passing will be a strong signal that the days of the State tolerating any discrimination on the grounds of sexual orientation in the armed forces are well and truly over. And this signal will be relevant to those around the world who continue to be criminalized and discharged from the armed forces for being gay.