HC Deb 03 July 1967 vol 749 cc1459-91
Mr. Speaker

We come now to Amendment No. 17, with which we are taking Amendment No. 28, in page 3, line 29, leave out from beginning to end of line 40.

Mr. Percival

I beg to move Amendment No. 17, in page 3, line 1, leave out subsection (1).

Amendment No. 28 is consequential, and, therefore, I shall not refer to it at all. Later, we shall discuss what the penalties should be if there were to be a reduction, so I will not refer to that.

What I am concerned with in this Amendment is the general question of reduction of the penalties, and there are

the house divided: Ayes 116, Noes 5.

Division No. 421.] AYES [1.30 a.m.
Abse, Leo Gregory, Arnold Orme, Stanley
Albu, Austen Crimond, Rt. Hn. J. Owen, Dr. David (Plymouth, S'tn)
Allason, James (Hemel Hempstead) Hale, Leslie (Oldham, W.) Palmer, Arthur
Allaun, Frank (Salford, E.) Hamling, William Pannell, Rt. Hn. Charles
Allen, Scholefield Haseldine, Norman Pardoe, John
Archer, Peter Hattersley, Roy Parkyn, Brian (Bedford)
Astor, John Hobden, Dennis (Brighton, K'town) Pavitt, Laurence
Atkinson, Norman (Tottenham) Hooley, Frank Price, Christopher (Perry Barr)
Barnes, Michael Houghton, Rt. Hn. Douglas Richard, Ivor
Benn, Rt. Hn. Anthony Wedgwood Howell, Denis (Smalt Heath) Roberts, Gwilym (Bedfordshire, S.)
Booth, Albert Huckfield, L. Robinson, Rt. Hn. Kenneth (St. P'c'as)
Boyle, Rt. Hn. Sir Edward Hughes, Emrys (Ayrshire, S.) Robinson, W. O. J. (Walth'stow, E.)
Brooks, Edwin Hunt, John Rowland, Christopher (Meriden)
Cant, R. B. Jackson, Colin (B'h'se & Spenb'gh) Rowlands, E. (Cardiff, N.)
Carmichael, Neil Jeger,Mrs.Lena(H'b'n&St.P'cras,S.) Shaw, Arnold (Ilford, S.)
Castle, Rt. Hn. Barbara Jenkins, Hugh (Putney) Shore, Peter (Stepney)
Chapman, Donald Jenkins, Rt. Hn. Roy (Stechford) Silkin, Rt. Hn. John (Deptford)
Crawshaw, Richard Johnson Smith, G. (E. Grinstead) Silverman, Julius (Aston)
Crossman, Rt. Hn. Richard Jones, Rt. Hn. Sir Elwyn (W. Ham, S.) Skeffington, Arthur
Dalyell, Tam Judd, Frank Steel, David (Roxburgh)
Davidson, Arthur (Accrington) Kerr, Mrs. Anne (R'ter & Chatham) Stonehouse, John
de Freitas, Rt. Hn, Sir Geoffrey Kerr, Dr. David (W'worth, Central) Strauss, Rt. Hn. G. R.
Dell, Edmund Kerr, Russell (Feltham) Swingler, Stephen
Dewar, Donald Kirk, Peter Taverne, Dick
Diamond, Rt. Hn. John Luard, Evan Teeling, Sir William
Dobson, Ray Lubbock, Eric Thomson, Rt. Hn. George
Dunwoody, Mrs. Gwyneth (Exeter) Lyon, Alexander W. (York) Thorpe, Rt. Hn. Jeremy
Dunwoody, Dr. John (F'th & C'b'e) MacDermot, Niall Walker-Smith, Rt. Hn. Sir Derek
Ellis, John Macdonald, A. H. Walters, Dennis
English, Michael Mackintosh, John P. Whitaker, Ben
Ensor, David McNamara, J. Kevin White, Mrs. Eirene
Faulds, Andrew Maddan, Martin Williams, Alan Lee (Hornchurch)
Fernyhough, E. Marquand, David Williams, Mrs. Shirley (Hitchin)
Fitch, Alan (Wigan) Mendelson, J. J. Wilson, William (Coventry, S.)
Fletcher, Ted (Darlington) Mikardo, Ian Worsley, Marcus
Foot, Michael (Ebbw Vale) Montgomery, Fergus Yates, Victor
Fraser, Rt. Hn. Hugh (St'fford&Stone) Moonman, Eric
Cardner, Tony Morrison, Charles (Devizes) TELLERS FOR THE AYES:
Ginsburg, David Newens, Stan Mr. Eric G. Varley and
Goodhart, Philip Noel-Baker, Francis (Swindon) Mr. Ian Gilmour.
Bullus, Sir Eric Maydon, Lt.-Cmdr. S. L. C. TELLERS FOR THE NOES:
Channon, H. P. G. Ridley, Hn. Nicholas Sir Gerald Nabarro and
Farr, John Mr. Harold Gurden.

only two questions relevant to my Amendment. The first is whether there ought to be a reduction, and the second is, if there ought to be a reduction, is this the right way of doing it?

These are the two points to which I shall address my mind, but I should mention this one other point; it is important to remember that in Amendment No. 17, which relates only to Clause 3(1), we are dealing only with buggery. There is rather a tendency to refer to the act of homosexuality, or homosexuality in general, which, I think, confuses the discussion. In the subsection to which I am referring we are only concerned with the offence of buggery, not with other kinds of homosexuality.

The position at the moment is very simple. On any conviction for the full offence the maximum penalty is imprisonment for life. I do believe, Mr. Speaker, that there is some confusion about this. One hears just that the penalty is life, but that does not mean—and is not within a mile of meaning—that life is obligatory, or even that it is often given. All it means is that the courts have a complete discretion in the case of a conviction for this particular offence of either binding over the convicted person if they think right, or of giving any other sentence—a long, fixed sentence which ensures a minimum time in prison, or a sentence of life imprisonment which brings with it all the consequences of any other sentence to life imprisonment.

So the situation at the moment is very simple. In the case of all convictions, regardless of what the age is, the court has this scope. It may award any sentence up to life imprisonment. That would remain the position if my Amendment was carried. What I would seek to do here, instead of monkeying about with it in the very complicated way that this subsection does, is simply to get rid of the whole thing and let the courts examine each case and say what is right in that particular case.

1.45 a.m.

My first reason for advocating getting rid of the whole subsection is that the present position is right and should not be altered, and my second is that what is proposed is so very bad. I hope that the sponsors of the Bill will be amenable to argument and persuasion on this point, which has nothing to do with the basic merits or demerits of the Bill, or whether it should become an Act. The case is strong.

Let nobody think that I suggest that the position should stay as it is because I want to see many people who are convicted of the offence sent to prison for life. That would be a very superficial view, and it is not in my mind. The public does not concern itself with legal niceties. Hon. Members sometimes get a little impatient with them and so do the lawyers sometimes. My arguments do not depend on them.

The public sees what sentence Parliament thinks proper for a particular offence, and for the offence with which we are concerned Parliament has provided a maximum sentence of life im- prisonment. The public regards that as marking the importance we attach to the offence, and acceptance by Parliament that in certain circumstances it can be so nasty that this very heavy penalty should be available. If we change it, the public can only regard that as meaning that we do not consider the offence to be as serious as our predecessors did.

I am not talking about an archaic rule of law. Two hundred or 300 years ago penalties were savage. A person could be hanged for larcency of 6d. or more. Such penalties are long since out-dated, and the law would rightly lose the public's respect if they were retained. But the penalty for buggery was confirmed as recently as 1956. If we now say that we shall not retain life imprisonment even for the worst possible cases, but shall reduce the maximum sentence to 10 years, the public's only interpretation will be that Parliament does not now regard the offence as being as serious as it did 10 years ago.

Sir S. Summers

Would my hon. and learned Friend say to what extent under the Clause life imprisonment will remain for an act of buggery with somebody under 16?

Mr. Percival

I will if my hon. Friend will bear with me, but I should like to do so in a particular order because, if one gets diverted, picking up the threads of one's argument adds seconds to the debate, and I do not want to do that.

My second reason for saying that the position should be left as it is is this. What have we to lose by keeping it as it is? At present, the courts are given a complete discretion about what they should do. As we have heard in debates on another subject, to pass a sentence of life imprisonment may not be nearly so inhuman as it sounds. In fact, imprisonment for life may mean that a much shorter sentence of imprisonment is served than a fixed term. It may even mean less than 10 years.

How it works out in practice is this. If a man is sentenced to imprisonment for life, he passes out of the hands of the judiciary and into the hands of the Home Office. Therefore, in the sentence of imprisonment for life the judges have the weapon which they may need in a case in which they say, "We think that this man is sick, not in any of the senses which enable us to make an hospital order, but in the sense that we think that he needs treatment. We do not think that a very long sentence of imprisonment is right, but we do not know what to do with him, so we sentence him to imprisonment for life and then the Home Secretary takes over".

Secondly, anybody who has taken an interest in the Bill would, I think, accept that the degree of heinousness in this offence is about as wide as it could be. Some cases are of very minor importance, while others are of immense importance. One has only to consider how the courts have used this very wide power to realise how valuable and well used it has been, because for this offence the sentences vary from probation or a £10 fine to very long sentences in the very bad cases in which the court, on the information before it, is of the opinion that the public needs protection.

Those are two not insubstantial reasons for leaving the position as it is: first, to show the public that we still regard this as just as serious a matter as it ever was; and, secondly, so that the courts, which are in possession of the facts, may have the widest field of remedies open to them.

The next reason why I want the House to reject the subsection in toto is that it is so very bad. I can best illustrate that by saying what I think the position would be if it were accepted. It is here that I come to the point put to me by my hon. Friend the Member for Aylesbury (Sir S. Summers). I make no bones about this. It is a very complicated subsection. It takes anybody who tries to work out what it means a deal of time and thought, and it is possible that one could be wrong.

I hope that when I have given my interpretation, if I have made a mistake someone will correct me, and that, if I have not, serious consideration will be given, during the debate, to justifying the extraordinary position which would result—that in three cases life sentences would still be available to the courts. One is the case of buggery with a woman. It appears to be most extraordinary that in the case of commission of this offence with a female prostitute, whatever the age of that female prostitute, it would remain an offence, even if it had been in private, because the Bill only relates to committing that offence with a man, in which case the sentence would be life imprisonment. This seems to me an extraordinary state of affairs, and one not less calculated to preserve respect for the law.

The second case is that of bestiality, a kind of buggery, the details of which I need not go into, and in which, I think, everyone agrees the life sentence should be preserved. The Under Secretary of State indicates dissent. Is he indicating dissent from my proposition that the life sentence would still be available, or that it should be? Will he indicate which?

The Under-Secretary of State for the Home Department (Mr. Dick Taverne)

In due course.

Mr. Percival

That would appear to be clear from the reading of subsection (1). If one reads that with the Sexual Offences Act, 1956, in a case of buggery with beasts the life imprisonment is to be kept.

The third case is where one man or both are under 16. Here one has a number of anomalies. If one commits this offence with somebody of 15 years and 11 months, the maximum sentence would still be life, but if one committed it with someone who was severely subnormal, who although 21, might have a mental age of 10, provided that one did not know he was subnormal it would not be an offence, and even if one did know, the sentence would only be ten years. There seems no rhyme or reason, for in these cases there is no change but in others there would be. The question of penalties arises only where there has been conviction, so this subsection applies only where there are offences of which one can still be convicted.

I pay tribute to the promoters of the Bill for having accepted that even in cases where both parties are over 21 there are still some cases in which it should be an offence. My understanding of that is: where it is not in private. My right hon. and learned Friend the Member for St. Marylebone (Mr. Hogg) raised a question of immense importance on the last debate, and that is not irrelevant here. I doubt whether any hon. Member here tonight would now feel with any certainty that he now knew what is meant by "in private". It is regrettable that when a point of that importance is raised, the debate should be closured before there has been an opportunity to discuss it fully. I hope that the promoters of the Bill will bear that sort of consideration in mind as the night goes through, because there must be a little more co-operation than that if we are to make a job of it.

2.0 a.m.

The promoters appreciate that even where two people are of full age there must still be criminal offences and criminal sanctions in certain cases. The first of them is where the act is committed and not in private, whatever that phrase means. It must be an offence which must be committed when others are present, whatever that means. It must be an offence if it is committed in a lavatory. It is still an offence if committed between the members of a crew of a Merchant Navy ship on that ship. It is an offence if it is committed without consent.

I am sure that what the promoters have in mind in that case is not simply physical rape, not simply the lack of consent like that. They have in mind two other kinds of cases in which there will be no consent. One is where somebody is so perverted that he drugs a person in order to take his pleasure of him, and thus the offence is committed without consent. I dare say, and I hope, that the promoters also have in mind those rather blurred distinctions between true consent and apparent consent

What is visualised here is cases where the act is done without consent in any of those ways. It would be an offence to do it to somebody who is severely subnormal, subject to the proviso in the subsection. It would be an offence for an officer on the staff or employed in a hospital or the manager of a hospital or mental nursing home, and so on.

Those are some of the circumstances in which the act of buggery will continue to be a criminal offence. I think that every Member of the House would agree that although I have tried to recount them dispassionately, even that little catalogue of them is an appalling catalogue of anti-social behaviour and of behaviour tending to corrupt public morals.

I do the promoters of the Bill the justice of accepting that they, too, take their view—that is why they are providing that it shall be an offence—but what would be the result of the subsection in those cases? It would be that the greatest possible punishment for the worst imaginable offence falling into any of those categories would be 10 years—that is, six and two-thirds years effectively with remission for good conduct but it is 10 years only where there is no consent. Where there is consent, the maximum is five years in any case. What is even more illogical under the subsection is that even in the case where there is consent, it is only five years where one party is under the age of 21 and one is over 21. If both are under 21, the maximum is two years, and if both are over 21 the maximum is two years. How can this make sense? Provided there is consent, the maximum, however bad the case, however persistent the offender, and provided no one concerned is under 16, the maximum is five years.

Mr. Dance

Would not my hon. and learned Friend agree that there are these tragic cases of very simple people, at times very young people, who are put in homes, being gulled by older people, with a little bit of bribery here and there? Would my hon. and learned Friend enlarge on this? Is not this very important?

Mr. Percival

What my hon. Friend says is important, but if he will forgive me I shall not allow myself to be diverted by anybody who is with me or against me. I have certain things to say, and with respect to my hon. Friend I shall say them in the minimum amount of time and he can then make his speech.

Where there is consent, however bad the case, however persistent the offender, and whatever the circumstances, five years will be the maximum. When one considers the difficulty of establishing lack of consent—

Notice taken that 40 Members were not present;

House counted, and, 40 Members being present

2.8 a.m.

Mr. Percival

I was saying that where there is consent, no matter how bad the case, however persistent the offender, and whatever the circumstances, five years will be the maximum.

I ask the House to consider the difficulties which arise in connection with consent. It is very difficult to say what is consent, and what is not, and under the Bill the onus will be placed on the prosecution to prove that there was not consent if it wishes to establish it. When the onus is put on the prosecution in any case, it is a very high one, and I suggest that as a practical matter the proportion of cases in which the prosecution will manage to establish lack of consent will be very small. We should, therefore, assume that in most cases the 10-year provision which will apply where lack of consent is proved will not be available.

I think that the House ought also to remember that the consent of any child over 16 will do. If he has consented, the maximum will come down to that provided under subsection (1,b). On another Amendment we discussed the difficulties if presents are given, if a young man is taken out, is taken to the pictures, and so on. I understood the promoters of the Bill to say that would be consent. There could be consent by a subnormal, or a severely subnormal, person. The severely subnormal person is covered by Clause 1, but such a person is only one of the categories of the mentally defective. Hon. Members may recall that I read to the House last Friday week part of the definition of "severe subnormality", but in this Bill—

Mr. Deputy Speaker (Sir Eric Fletcher)

Order. The hon. and learned Member cannot go into all this matter on this Amendment. He can talk only of what the punishment should be.

Mr. Percival

It depends, Mr. Deputy Speaker, on what one is punishing for.

Mr. Deputy Speaker

The hon. and learned Member has gone into great detail about what the punishment should be, and he must confine himself to what should be the maximum.

Mr. Percival

With respect, that comes under the next set of Amendments.

Mr. Deputy Speaker

The hon. and learned Member has already given a great amount of detail about punishment and about what constitutes the offence.

Mr. Percival

I have spoken about the difference between the sentences. I say that bringing the 10-year sentence down to five would be something which most of us would have thought should not have been done; it should not have been reduced by that amount.

My last point—and I forget whether you were in the Chair, Mr. Deputy Speaker, when I first mentioned it—is that I want this to be left out simply because I consider it to be thoroughly bad.

Mr. Deputy Speaker

I was in the Chair when the hon. and learned Member began his speech.

Mr. Percival

I would draw the attention of the promoters of the Bill to lines 12 to 15 of the subsection which I move to leave out of the Bill, because I think that here something has happened by accident. Those lines read: and the maximum punishment prescribed … for an attempt to commit buggery with another man (ten years) shall not apply where the other man is of or over the age of sixteen". As I understand, what that is doing is removing the maximum; and if one removes the maximum, then let us remember that that is usually a limiting factor.

As I understand, these lines are removing the maximum and, therefore, removing the limit. All one is left with is something to the effect that the court is entitled to send the man to prison—but without any maximum being prescribed. This may have been done in error, because if not, and the promoters of the Bill are going to tell me that it is right, then what they are doing is removing the maximum in the case of the full offence.

That would be wholly illogical and I draw the attention of the promoters of this Bill to it. I suggest that for the twin reasons I have given, first, that the position as it stands is rational, sensible and practicable and that, secondly, what is proposed here is riddled with anomalies and absurdities, it would be wise to leave subsection (1) of Clause 3 out altogether. If a change is needed, then it would be far better to start all over again.

2.15 a.m.

Mr. Hogg

I do not want to follow my hon. and learned Friend in his disquisition on the first of the Amendments under discussion. I want to put to the Under-Secretary a definite question on Amendment No. 28, which proposes to leave out lines 29 to 40. The point can be stated in a few words.

If the hon. and learned Member will look at lines 29 to 33 he will see that the Bill substitutes—so that they will be part of the substantive law when the Bill is passed—the following words: If with a boy under the age of sixteen or with a woman or an animal, life … I have been trying to hold the scales fairly, evenly and objectively and have not tried to take up much time, but I feel that I have a watching brief for the criminal law if the Bill goes through. It seems absolutely intolerable if the total effect of the Bill is to be that if a certain act is done with a consenting male in private it is no crime, but that if it is done with a consenting female in private it is a crime for which the offender can be sent to prison for life. This seems wholly irrational. Will the Under-Secretary give an undertaking that if the Bill goes through he will alter that situation in another place, or, alternatively, introduce some kind of sexual offences amendment law which will get rid of it?

The other and closely related point concerns animals. I am sorry to raise this painful subject, but probably not more than once in 25 or 30 years has one the opportunity of talking frankly about things of this kind. I do not know whether the Under-Secretary thinks that this sort of activity with an animal should be a crime. I have often had great doubts about it. We go to assizes and hear these pathetic and revolting facts deployed in public about an unfortunate young man—very often engaged in agricultural pursuits—and we wonder what public money is being spent upon.

I suppose that it is arguable that such people need medical attention and, therefore, should be brought before the courts so that they can receive it, but whatever else they should get I am sure that it is not imprisonment for life. I am not trying to dogmatise about the situation, but let us be frank about it and say that these people never do get life imprisonment. I have never heard of a sentence of life imprisonment being given for an offence with an animal, and I should be horrified if I did. I do not believe that this has ever been done in my lifetime.

But here we have a Clause which reinserts those penalties in subsection (4) in respect of women and animals. I ask the Under-Secretary to give a clear undertaking that if the Bill becomes law this situation will be tidied up. It is intolerable to impose a life sentence in respect of offences committed with animals or consenting women in private.

Mr. Taverne

First, I want to deal with the points raised by the hon. Member for Southport (Mr. Percival). He said that his Amendment did not go to the merits or demerits of the Bill and could be judged separately from the basic amendment in the law that the Bill brings about. I am not sure that his Amendment can be regarded as irrelevant to the merits of the Bill.

The hon. and learned Gentleman's first Amendment would introduce unacceptable anomalies. He says that the penalties, even if not enforced, show public attitudes, but as they are, they show extraordinary contradictions in those attitudes. Thus, two adults who consented in private to homosexual acts would face no penalty unless they were under 21, when they would face life imprisonment. They would face it also if they committed the acts in public. This is an absurd gradation of penalties—

Mr. Percival

The hon. and learned Gentleman is not quite fair. There is only the possibility of life imprisonment.

Mr. Taverne

But this would show a contradictory public attitude.

As far as I know, life imprisonment is never imposed except in a few cases of pederasty, which these provisions would cover. In 1964, the last year for which I have figures, the severest penalty imposed was one of 10 years. I do not know the circumstances, but I should have thought that a 10-year maximum was severe enough.

The point of substance concerns the anomalies which still remain over life imprisonment for certain kinds of bestiality and buggery with a woman. This is an anomaly and anachronism in the Bill. I completely agree with the right hon. and learned Member for St. Marylebone (Mr. Hogg) and completely disagree with the hon. and learned Member for Southport, who felt that life imprisonment should be kept for acts with animals. The difficulty is that the Bill deals with homosexual acts and a reform of the law on these offences would not come within the Long Title.

But I can give an undertaking that these kinds of offence will certainly be reviewed. In a speech over the weekend, my right hon. Friend forecast a programme of law reform. It is intended to review sexual offences, although, if the Bill becomes law, these kind of anomalies will be eradicated, and this field of law will be urgently re-examined.

Mr. Paul Channon (Southend, West)

If it does not become law, surely the anomalies which my right hon. and learned Friend mentioned should still be looked at?

Mr. Taverne

The question of sexual offences would still be looked at, but the anomalies would not exist to the same extent if the Bill were not enacted. If it were, there would be anomalies in different and contrasting penalties.

Mr. Edward M. Taylor (Glasgow, Cathcart)

Although these matters affect only England and Wales, I hope that hon. Members who will take part in the proceedings of the Scottish Grand Committee later this morning will regard my speaking now as a reciprocal gesture.

Among those of us who oppose the Bill there is a real fear that it will produce an increase in homosexual activity and indecent acts in private and public. I know that the promoters do not intend this, but if this activity does increase, and large numbers of these clubs do open, with a real danger to the nation's moral fibre, should there not be reserve powers of control which could be used with flexibility? If we leave the law as it stands and retain the penalty of life imprisonment as something which could be used, but, as has been admitted by all who have spoken in this debate, is not generally used, is it not wise to take powers of this sort which could be used with greater intensity if there were a tendency for the matter to get out of control?

Reference has been made to the betting and gaming legislation, which was enacted with the best of intentions but with the result of an increase in gambling and of setting up clubs. The passing of this Bill could result in a big increase in homosexual activity. Even if it is in private that is difficult to define. I hope that my hon. Friends will think seriously about this matter, which is the only one I raise tonight.

Question put, That the words proposed to be left out, to "ten" stand part of the Bill:—

The House divided: Ayes 111, Noes 20.

Division No. 422.] AYES [2.26 a.m.
Abse, Leo Ensor, David Johnson Smith, G. (E. Grinstead)
Albu, Austen Faulds, Andrew Jones, Rt. Hn. Sir Elwyn (W. Ham, S.)
Allaun, Frank (Salford, E.) Fernyhough, E. Judd, Frank
Allen, Scholefield Fitch, Alan (Wigan) Kerr, Mrs. Anne (R'ter & Chatham)
Archer, Peter Fletcher, Ted (Darlington) Kerr, Dr. David (W'worth, Central)
Atkinson, Norman (Tottenham) Foot, Michael (Ebbw Vale) Kerr, Russell (Feltham)
Barnes, Michael Fraser, Rt. Hn. Hugh (St'fford & Stone) Kirk, Peter
Benn, Rt. Hn. Anthony Wedgwood Gardner, Tony Luard, Evan
Booth, Albert Ginsburg, David Lubbock, Eric
Boyle, Rt. Hn. Sir Edward Gregory, Arnold Lyon, Alexander W. (York)
Brooks, Edwin Grimond, Rt. Hn. J. MacDermot, Niall
Cant, R. B. Hale, Leslie (Oldham, W.) Macdonald, A. H.
Carmichael, Neil Hamling, William Mackintosh, John P.
Castle, Rt. Hn. Barbara Haseldine, Norman McNamara, J. Kevan
Channon, H. P. G. Hattersley, Roy Maddan, Martin
Chapman, Donald Hobden, Dennis (Brighton, K'town) Marquand, David
Crawshaw, Richard Hooley, Frank Mendelson, J. J.
Crossman, Rt. Hn. Richard Houghton, Rt. Hn. Douglas Mikardo, Ian
Dalyell, Tam Howell, Denis (Small Heath) Montgomery, Fergus
Davidson, Arthur (Accrington) Huckfield, L. Moonman, Eric
Dell, Edmund Hughes, Emrys (Ayrshire, S.) Newens, Stan
Dewar, Donald Hunt, John Noel-Baker, Francis (Swindon)
Diamond, Rt. Hn. John Jackson, Colin (B'h'se & Spenb'gh) Orme, Stanley
Dunwoody, Mrs. Gwyneth (Exeter) Jackson, Peter M. (High Peak) Owen, Dr. David (Plymouth, S'tn)
Dunwoody, Dr. John (F'th & C'b'e) Jeger, Mrs. Lena (H'b'n&St.P'cras, S.) Palmer, Arthur
Ellis, John Jenkins, Hugh (Putney) Pannell, Rt. Hn. Charles
English, Michael Jenkins, Rt. Hn. Roy (Stechford) Pardoe, John
Parkyn, Brian (Bedford) Silkin, Rt. Hn. John (Deptford) Walters, Dennis
Pavitt, Laurence Silverman Julius (Aston) Whitaker, Ben
Price, Christopher (Perry Barr) Skeffington, Arthur White, Mrs. Eirene
Richard, Ivor Steel, David (Roxburgh) Williams, Alan Lee (Hornchurch)
Ridley, Hn. Nicholas Stonehouse, John Williams, Mrs. Shirley (Hitchin)
Robinson, Rt.Hn.Kenneth(St.P'c'as) Strauss, Rt. Hn. G. R. Wilson, William (Coventry, S.)
Robinson, W. O. J. (Walth'stow E.) Swingler, Stephen Worsley, Marcus
Rowland, Christopher (Merlden) Taverne, Dick Yates, Victor
Rowlands, E. (Cardiff, N.) Thomson, Rt. Hn. George
Shaw, Arnold (Ilford, S.) Thorpe, Rt. Hn. Jeremy TELLERS FOR THE AYES
Shore, Peter (Stepney) Walker-Smith, Rt. Hn. Sir Derek Mr. Eric G. Varley and
Mr. Ian Gilmour.
Allason, James (Hemel Hempstead) Gurden, Harold Page, Graham (Crosby)
Bullus, Sir Eric Harris, Reader (Heston) Sinclair, Sir George
Cordle, John Hutchison, Michael Clark Summers, Sir Spencer
Dance, James Mahon, Peter (Preston, S.) Taylor, Sir Charles (Eastbourne)
Farr, John Marten, Neil
Giles, Rear-Adm. Morgan Mawby, Ray TELLERS FOR THE NOES:
Goodhew, Victor Maydon, Lt.-Cmdr. S. L. C. Mr. Ian Percival and
Gower, Raymond Morgan, Elystan (Cardiganshire) Mr. Edward M. Taylor
Mr. Mawby

I beg to move Amendment No. 19, in page 3, line 6, to leave out 'ten' and to insert 'twenty'.

It was notified by Mr. Speaker that, with this Amendment, we shall be discussing a number of other Amendments dealing with similar matters of the penalties. The Amendments can be broken down into two definite groups—perhaps more, but there are two main groups.

This Amendment deals with the question which we discussed earlier, the question of age. Here we are dealing with the term of imprisonment which the person can be given as a penalty; if he commits the act with a boy over 16 where the boy has given his consent, the new penalty will be five years' imprisonment, or, if consent was not given, 10 years. The House has made a decision earlier on the question of the age and has accepted that a boy of 16 is capable of giving consent within the meaning of the Bill. Therefore, there is not much point in my discussing that, and, indeed, I should be out of order if I were to discuss it any further. We are left with the point that this is the new penalty for a man who commits buggery with a boy of 16 or over.

The important question one has to ask is: how serious is this offence? How serious do we in this House consider this offence to be? How serious are the courts likely to regard this offence? We shall see from the type of sentences they will give. The difficulty is that under the Clause, if left as it is, the courts will be restricted to a greater extent than they have hitherto been.

Up to now the courts have been able to decide what sort of penalty ought to be meted out to a person who commits buggery with a boy of 16, and they have been able to work within a very wide area, in that the maximum penalty has been life imprisonment. The hon. Gentleman the Member for Pontypool (Mr. Abse) pointed out in a previous debate that the courts very rarely give the maximum. While this is true, nevertheless it surely is right that the courts ought to have some way of showing to the offender how serious they believe the case is, and therefore, ought to be able to mete out the sort of penalty which is required.

We all read with great interest what the right hon. Gentleman the Home Secretary said at the weekend. There are already people who are tending to say, this may be very well, but is this not tending to lay down a harsh rule of thumb whereby the courts will be hampered still further?—in that they will be able, with 12 men good and true, to decide whether the person is guilty or not, but at the end of day will be tied much more to the penalty which they can administer, instead of, as now, having an area within which they can operate and can impose the penalty they believe fits the crime.

Therefore my attitude is, that the change, which the Bill makes, from life imprisonment for this offence to a term of five years, really ought to be given more justification before the House can accept it. However wicked the judge believes the offence to be, he is tied to the maximum penalty.

I shall not make another long speech on consent, but I say again that a boy of 16 is incapable of giving consent as we and the courts would understand it. I therefore think that it is wrong, in the Bill, to jump from a maximum offence, with the court able to decide, in the light of its view of the offence, the sentence that should be imposed, to a point where the imprisonment is reduced in one case to not more than five years. This is doing injustice to the courts, and not doing what I think is necessary to show that we are out to protect young people at the most difficult time they can face.

I dealt with this point earlier and I do not propose to deal with it in detail again, but it is a mistake to reduce drastically the maximum sentence the judges can impose. To reduce the sentence to this amount is quite wrong.

When we last discussed the Bill, the Home Secretary said that he had the same powers in relation to those committed to prison for life for this offence as he had in relation to convicted murderers. The court rarely imposes the maximum sentence, but even after a man has been sentenced to what the court may think is the right period for the offence that has been committed, the Home Secretary can review the sentence and let a prisoner out on licence if that is, in his view, necessary. I much prefer the present situation, in which the courts have full powers to impose the maximum penalty if they think it right in the circumstances, but with the Home Secretary having the power to release the prisoner on licence if he thinks that the circumstances justify that course of action.

That is the first main point of this group of Amendments, and the second point is one made by my hon. Friend the Member for Louth (Sir C. Osborne) on the last occasion. In very many of our Amendments we seek to add the words "or a fine." I will not, at this hour of the morning, seek to repeat the main points of my hon. Friend's argument, but I was seized of the point made by the promoter of the Bill when he said that to send a homosexual to gaol was very much like sending a sex maniac to a harem. There is a good deal in what he said.

The point of the Amendments, therefore, is to ensure that the courts will not be completely restricted in the penalties they impose, but will be able to consider whether, by sending a man to prison, they will be making his degradation worse, and will then have an alterna- tive sentence which they can impose on him.

The question of a maximum fine of £1,000 is obviously a matter for those dealing with the subject and one is open to advice on this point. The figure has been suggested mainly to express the principle that, in these particular cases, while one does not say that, in future, all the courts should impose a fine for this offence, they should have it within their power, after taking all the facts into consideration, to decide whether to imprison or fine.

2.45 a.m.

Mr. Gower

The promoters of the Bill have been at some pains to explain that the sanctions against those committing offences of this nature against children are in no way weakened by the Bill and are, indeed, in some respects strengthened. I cannot, therefore, understand why they should want to weaken the sanction against those committing such an offence against persons just above the age at which they would be classified as children.

An offence of this kind against a boy of 16 can be in certain circumstances a horrible and dreadful thing. It can inflict a permanent injury on him for life; it can distort his manhood; it can change the direction of his life. Surely we should give similar protection to a boy of 16 as is contained in the Bill in respect of offences against children. I do not think that we can make this easy distinction between children and boys of 16, even 17. I hope that the sponsors of the Bill will consider these marginal cases.

The proposal for a financial penalty may commend itself to hon. Members on both sides as an alternative. One would imagine that there will be cases in which such a fine would be more appropriate than imprisonment.

Mr. Taverne

On the question of a maximum penalty of imprisonment, the same point arises here as on the last Amendment. In practice, the courts have found that a 10-year penalty is as severe a punishment as they are likely to impose.

On the question of a fine, the Amendments are wholly mistaken. As I have pointed out, in the case of an indictable offence, the courts have an unlimited power to fine now. Therefore, the Amendments are otiose. In some ways, they are also undesirable because, for some cases, they would give power to impose a fine of £1,000 to magistrates' courts, which is not a power that we have given them in the past.

Mr. Gurden

What we have heard from the Under-Secretary of State does not answer the point about the effect on the general public of removing a long sentence of imprisonment and reducing it in some cases to a five-year penalty. We are not getting enough answers to the questions which are being put up. Some of us did not serve on the Standing Committee and we do not have the benefit of what took place there except by reading the proceedings. We do not know what is in the minds of the promoters.

It is important to realise that all the supporters, as named on the Bill, are not here tonight to support it. It has been the practice for a very long time that hon. Members, when speaking, should declare their interest. I am not suggesting that the supporters of the Bill, or those who are voting against all the Amendments tonight, have a direct interest which they ought to declare and tell us about—

Hon. Members


Mr. Leslie Hale (Oldham, West)

Will the hon. Member tell the House, and, if not, will he tell the Chair, what he meant by those words?

Mr. Deputy Speaker


Mr. Hale

On a point of order. If you, Mr. Deputy Speaker, did not hear the words used to which I call attention—

Mr. Deputy Speaker

Order. The hon. Member must resume his seat when I am on my feet. We cannot have two hon. Members on their feet at the same time. I understand that the hon. Member for Oldham, West (Mr. Hale) is rising on a point of order.

Mr. Hale

On a point of order. As one who was intimately connected politically with a victim, whom I respected and trusted and whose word I always believed, a man of great courage in the service of his country, a man of integrity, a man who was sent to prison for four years from this House after having already endured several years' imprison- ment—[An HON. MEMBER: "What is the point of order?"]

Mr. Hale

The point of order, if it is not understood, is that the hon. Member for Birmingham, Selly Oak (Mr. Gurden) has said that hon. Members have a personal interest in the Bill. He started to say that the promoters of the Bill had a personal interest and then he said, which was even more offensive, that he did not insist that they had a personal interest. What does he mean? If we are to bandy accusations about the Chamber, I will start to do it.

Mr. Deputy Speaker

In view of that point of order, I must ask the hon. Gentleman whether he was intending to make reference to the hon. Member for Oldham, West.

Mr. Gurden

Certainly not. Had I been allowed to finish what I was saying I do not think that the hon. Member would have intervened. What I was about to say was that according to the figures we have heard and seen published there is quite a percentage of people who practise homosexual acts. It would be strange indeed, in a place of 600 Members, if there were not some here, but I have not heard anyone declare any such interest.

Mr. Hale

On a point of order. May we have a Ruling on that observation? May I say to the Under-Secretary of State for the Home Department, who was wrongly rebuked last week for making a sensible observation about a case that was sub judice, that I do not require his fraternal advice whether I should intervene. During the last six months I have not intervened in the debates in the House for more than a moment or two. On this occasion, I bitterly resent this line of comment. I am not prepared to go through the farce, night after night, of being told that I must keep my mouth shut because a Bill must pass without observation or criticism when one hears observations of that kind. I ask for a Ruling on the observation made by the hon. Member for Selly Oak.

Mr. Deputy Speaker

The hon. Member has not raised any point of order.

Mr. Gurden

I was not intending to accuse the hon. Member for Oldham, West (Mr. Hale) or any other hon. Gentleman sitting in the Chamber at this moment. I do not know, and that was the point which I was making—

Mr. Andrew Faulds (Smethwick)

We do not know about the hon. Member for Birmingham, Selly Oak (Mr. Gurden), do we? It might be interesting to know.

Mr. Gurden

We certainly know a few things concerning the hon. Member for Smethwick (Mr. Faulds), about which it might be better to say nothing.

Mr. Faulds

I wish that the hon. Gentleman would—

Hon. Members


Mr. Faulds

On a point of order, Mr. Deputy Speaker. Could you possibly get the hon. Member for Selly Oak to enlarge on his last observation? If he is insinuating that I am one of the chosen few in the 600, perhaps he would tell us about it, because I do not know.

Mr. Deputy Speaker

Order. I think that was an undesirable remark which the hon. Member for Selly Oak obviously will wish to withdraw.

Mr. Gurden

Mr. Deputy Speaker, I merely—

Mr. Deputy Speaker

No. Objection was taken to the hon. Gentleman's reference to the hon. Member for Smethwick (Mr. Faulds). I think that he should withdraw that.

Mr. Gurden

Mr. Deputy Speaker, I will certainly withdraw, if you wish me to do so. I did not think that I said anything wrong about the hon. Gentleman. I simply replied to his point about me, and I made the same one about him.

Mr. Faulds

I will make another about the hon. Gentleman—he has not the capacity for thought.

Mr. Deputy Speaker


Mr. Gurden

If the House rejects this Amendment, it will show to the public that it considers these offences to be nothing like as serious as the public think. By reducing the maximum prison sentence to five years, it appears that the promoters of the Bill do not object to a prison sentence for these sorts of offences in certain circumstances.

I am surprised that the promoters are not willing to raise the limit on the age of consent. The arguments which have been adduced tonight should have convinced anyone that it is wrong for a boy aged 16 to have given consent to something that he knows nothing about and which in many cases he does not understand, and be exposed to this risk. I should have thought that the promoters would have been only too willing to increase the age limit.

As has been rightly said, if the life sentence is left as it is, nothing changes for offenders. The Home Secretary can reduce the sentence to whatever he thinks is necessary, as happens frequently in other cases. That is clearly a sufficient safeguard for offenders. There is nothing wrong in leaving it at life imprisonment—

Mr. Dance

On a point of order, Mr. Deputy Speaker. Surely the Home Secretary should be listening to the remarks being directed to him.

Mr. Deputy Speaker

That is not a point of order.

Mr. Gurden

It would be interesting to have a fuller reply from the Home Secretary, or from a junior Minister. It would be more helpful if the hon. Member for Pontypool (Mr. Abse) gave the House the benefit of the answers which he must have to some of these Amendments. We have heard very little from the other side of the House. Having listened to the debate, and the short replies which we have been given, I came to the conclusion long ago that some of these Amendments ought to be accepted. If we do not get better replies than we have had so far, I hope that some of my hon. Friends will join me in the Division Lobby in favour of this Amendment.

3.0 a.m.

Mr. Percival

At this time of the morning tempers get a little frayed and passions rise, but I want to keep what I say on this Amendment moderate in tone and, I hope, clearly matter of fact.

I did say, on my last Amendment, that there was a certain amount of overlapping, and I would say certain things on this. I limit myself here to the question whether, if one accepts as one must after the last Amendment that there should be reductions, it is right to reduce the figures to 10 and five. I think that one can take the figure of five, because if the figure of five is wrong then I think that all would agree that the other figure which is tied to it is wrong also.

May I echo the closing words of my hon. Friend the Member for Birmingham, Selly Oak (Mr. Gurden). With respect to the Under-Secretary of State—and I take his point about fines and have no complaint about that—his answer on the question whether the five and 10 were right was brief almost to the point of curtness. I suppose that he can be forgiven for that, because we are still told that this is not a Government Measure, so when he rises we must take it that he is expressing a personal point of view.

The person to whom we are looking for answers is the person in charge of the Bill, the hon. Member for Pontypool (Mr. Abse). If there is a simple and convincing answer he should give it to us, because I would suggest that it is very wrong if the debate on this important question should come to an end without him saying something about it.

Mr. Victor Goodhew (St. Albans)

Would my hon. Friend not agree that since the Government has taken the trouble to give time to the Bill the House is at least entitled to have a proper assessment of the Government's views on these important matters, rather than that they should allow a Measure to go through which has not had proper consideration?

Mr. Deputy Speaker

Order. We are discussing the merits of the Amendment. We are on the Report stage.

Mr. Percival

I am sorry, Mr. Deputy Speaker, but I am not sure that I caught what you said—

Mr. Deputy Speaker

I said we were on the Report stage. We must confine ourselves to the narrow limits of the particular Amendment before the House.

Mr. Goodhew

On a point of order, Mr. Deputy Speaker. I was saying that we were entitled to have the Government's views on the question before the House now, and that is the length of sentences.

Mr. Deputy Speaker

And I was saying that that is not relevant to this debate.

Mr. Percival

I rather gather that I have not gone outside the confines of order, Mr. Deputy Speaker.

What I was saying, and the way in which I related it to my Amendment, was this. I was expressing my opinion about the Under Secretary's reply to this Amendment, which must be relevant to this Amendment, and I was expressing the hope that we might hear from the hon. Member in charge of the Bill on this Amendment. I presume that is why you did not rule me out of order, because I think with respect that I am in order in both those respects.

If we are to regard this as a proper debate, then these comments must be in order, because they are very relevant as to whether this debate gets to the root of the matter and amounts to any sort of discussion of the point.

At the moment, all we have had is a curt reply from the Under-Secretary of State, delivered as though that is supposed to be the end of the matter and there is no need for anybody else to say anything about it. I do not share that view. We must remember that we are talking about a case of buggery where the boy is 16 or over, not where the act is committed between consenting males in private. We are talking about an offence where one of the parties is of such a tender age that we all think that he requires protection.

Mr. Deputy Speaker

Order. The hon. Gentleman cannot repeat the speech he made on his previous Amendment. He must confine himself to the question whether we should leave out "ten" and insert "twenty".

Mr. Percival

I fail to see how one can consider whether five or 10 is right unless one considers the offence the sentence for which is under consideration. That was all I intended to do, and I submit that it is a sine qua non; I cannot make my point without drawing attention to the offence. A man can be sentenced to five years' imprisonment in this country for cheating at games. Do we consider that to commit buggery on a boy of 16 is no more important than that?

There may well be cases where five years is too much, but I am not talking about minimum sentences. The courts have shown at least as much humanity as the House in the leniency of their sentences, and have shown that they can distinguish between the good and the bad. With remission, five years means 3⅔ or 3⅓ years—my arithmetic is not very good at this hour of the morning. Do the sponsors really believe that it is right that that should be the maximum sentence that can be passed on anybody, however persistent, and however bad or disgraceful the circumstances? The circumstances may be very relevant. This is where consent comes in, and this is the point I deliberately did not make before because I wanted to reserve it instead of making it twice.

Where the consent of a boy of 16 is obtained by lures, inducements, presents, and so on, that will still be consent, and the sentence will be the only way the court can mark its revulsion at the way in which the consent was obtained. Five years may be ample for the majority of cases. But cannot hon. Members use their imaginations and see that there may well be cases where, because of the way in which consent was obtained from a 16-year-old child, because of the circumstances of the offence and, not least, the persistent conduct of the offender a higher sentence is needed? Five years is the maximum however many times that person has been convicted. But five years is fixed in the Bill as the maximum whatever the circumstances. If a man has been at it for a lifetime and has been in and out of prison and then, benefiting from his experience, obtains the consent of a child of 16, all that the court can do is to give him five years.

I could go on multiplying the examples. I do not propose to do so because I hope that what I have said is enough to show the danger which some of us on this side of the House feel. What have we to lose by putting in "ten" instead of "five"? We would gain in the public's estimation because it would indicate that we took a more severe view of the matter. That would be good. The promoters would be able to say to the public, "We thought carefully about this. We realised that five years might give the wrong impression and, therefore, we agreed to make it ten. This is an indication of how seriously we regard the matter".

Why limit the courts? There is nobody in the country, and certainly nobody in the House, with half the experience of the courts in deciding what is right in sentencing. No one else has the facilities for getting all the facts. This is the job of the courts—to represent the public in delivering sentences. If they sentence too severely, there would soon be a public outcry and the matter would be put right. What is the sense of limiting sentences to five years? [Interruption.] An hon. Member suggests that we should get rid of the judges. I realise that some people want to do that and to destroy their authority as much as they can and put their job in the hands of the administrator. That is such an absurd argument that it does not merit argument.

Why give the courts the job of deciding what the sentence should be and then tie their hands behind their back? It is easy to see what we would lose by making the limit five instead of 10 years. It is easy to see a positive gain in saying. "We think we were wrong. We should allow discretion up to 10 years". I realise that the promoters, in fixing 10 years in one circumstance and five years in the other, are endeavouring to hold a balance between offences with consent and offences without consent. The reason for providing for a limit of five years instead of 10 is to emphasise that the offence is much worse when there is not consent. Therefore, the promoters say, "When there is not consent, the maximum shall be twice as much because the offence is twice as bad". That makes good sense.

Right or wrong, many of us consider that having these small penalties will create entirely the wrong impression in the country. Because we feel gravely concerned about this, and because this is a Private Member's Bill, we should like to hear from the private Member in charge of the Bill what his views are.

3.15 a.m.

Mr. Abse

There is no desire on my part to do anything but to seek to reply, to the best of my ability, to the points made. I would like the hon and learned Member for Southport (Mr. Percival) to believe that the fact that I resist the Amendment does not mean that I have not taken into account all that he has so clearly expounded.

It would help a little if I gave what I think he would seek, the general reasoning behind the new penalties enumerated in this Clause. We have adopted the general attitude in the Wolfenden Committee, where it was quite clearly set out that was its opinion that in the past there had been excessive concentration on the physical nature of the act, so that we had disparities between buggery and gross indecency.

The Committee felt it was an inappropriate approach, and that the law should not only distinguish in some way between buggery and other sexual acts, but that the law should, in prescribing penalties, have regard to the gravity of the offences as measured by the circumstances surrounding the commission of the act and not merely the physical act itself. It is on that broad reasoning that we have seen certain increases of penalties in other Clauses and in this case, some modifications.

I cannot go along with the hon. and learned Member in suggesting that these are very small penalties. Ten years and five years are heavy penalties and some of us who have the task, at the moment, of examining sentences of long-term imprisonment know of the difficulties which may occur and the danger of trying to fit in rehabilitation. I do not apologise for sentences of 10 and five years for these grave offences.

Hon. Members have drawn attention to the fact that a boy or young man of 16 may be regarded as incapable of giving proper consent, and that, therefore, the person who commits the offence can have a five-year instead of a 10-year sentence. I would point out that courts take into account whether consent was real and whether it was given under duress or occasioned by fright. The courts are perfectly capable, as amply demonstrated by a dozen precedents, in deciding whether there is a real consent, of taking into account the age of the person who is reported to have given consent.

For these reasons, and not because I want to treat this perfunctorily, I cannot recommend that the Amendment should be accepted.

Mr. James Allason (Hemel Hempstead)

My approach is on the need to protect youth. The great danger is that the youth of the country will look at the effects of the Bill and think that homosexuality is a practice which is, perhaps, not necessarily desirable, but at least is now sanctioned by this House. I am, therefore, against any proposal to reduce sanctions against the aspects of these practices which are still illegal.

This is lessening sanctions against practices which many people find extremely objectionable. These now become nearly legal. When a man is charged with an offence with a boy who is 20½ years old, it will undoubtedly be said, "What bad luck. If only he was six months older, it would not be an offence. Therefore, it is only a very small offence and it should be overlooked." The basis of the trouble of many supporters of the Bill is a belief that this is something which—

Mr. Deputy Speaker

Order. We are not dealing with that on the Amendment. We are dealing with what the penalty should be for the offence.

Mr. Allason

Quite, Mr. Deputy Speaker. My argument is that the penalties require to be increased rather than reduced, as they are being reduced under the Bill. The Amendment seeks to increase them.

I am trying to explain that imitation is dangerous, because—this is a reason which has not been brought out tonight—it is not an offence which is ingrown or born in people, but is something which can be gained by imitation. I would say that 95 per cent. of those who practise this offence have gained it by imitation and that it is only 5 per cent. who are, perhaps, born that way. Therefore, this matter of imitation is of the greatest importance in relation to the Amendment.

If imitation is made more easy by reduced penalties, that is highly relevant. It is a fact that only a very small number of people are born that way and that most of them come to it through imitation. The particularly dangerous lime is in adolescence; it is known as the plastic adolescent stage. Many people pass through that stage at the age of 16 or 17 and pass out of it altogether, but some people are trapped in it for a long time. Therefore, it is all the more important to ensure that those of the age of 16 or 17 should not be contaminated. Those who harm boys of 16 and 17 do immense damage. It is extremely important that the offence of dealing with those who are so young and so liable to be corrupted at that stage should be considered carefully.

Besides the effect on the individual who is attacked, there is also the effect on those of his companions who watch, who see this behaviour going on and who hear it talked about. For those of 16 and 17, it will be, "Oh, isn't it a romantic thing? This is what we will be allowed to do when we are grown up. We are not allowed to do it now, but it is rather exciting." That is the great danger of the Bill. Therefore, it is necessary to have substantial penalties for committing offences with those under the age of 21.

My hon. and learned Friend the Member for Southport (Mr. Percival) has put clearly the question of a five-year sentence. The hon. Member for Pontypool (Mr. Abse) said that a five-year sentence was a very long time, but it is a maximum sentence and would not normally be given for a first offence. Is five years really a long time for a persistent offender? Is five years really a sufficient penalty for a man who, time and again, goes out to look for consenting youths? I do not believe that it is. I think that a sentence of 10 years is necessary in these circumstances.

Mr. Goodhew

I think that it has escaped general public attention that this part of the Bill is extremely important. So many people have tended to think of this Bill as being one merely to legitimise homosexual acts between consenting adults, which is the principal provision of the Bill. I think that insufficient attention has been paid to the fact that we are being asked to reduce considerably the sentences which will be imposed on those who are dealing with people under 21.

I cannot share the cavalier attitude of the Under-Secretary of State on this question of sentence. When we say that this is too large a reduction from "life" to 10 years, he brushes it aside by saying that in practice it is never more than 10 years. He has failed to apply his mind to the effect which there is likely to be on people when they hear that the maximum penalty has been reduced by the House of Commons from "life" to 10 years for somebody of 16 or over. This is the important thing to remember, it is not a question, necessarily, of the sentences which are imposed by the courts. It is the effect on the moral attitudes of people, and these are affected considerably by the maximum sentences or punishments which are available.

We have seen—and I shall not pursue the matter in any detail—the effect of the abolition of hanging as a punishment for armed and violent criminals. [Interruption.] Does the Under-Secretary of State wish to intervene?

Mr. Taverne


Mr. Goodhew

I wish that I had the benefit of the hon. and learned Gentleman's remark, but I shall not pursue the matter.

All I am saying is that the effect of these changes can be considerable. I have no doubt that young men of 16 and over will now think that this is a much less serious offence than it was considered to be. They will not be able to think any other way. It is bad enough that we have decided, or that the House appears to be ready to decide, that it should not be an offence when the person is over 21, but in respect of a person under 21 we are being asked to reduce the sentence to an absurd period.

The Government, who have given time for the Bill, which is supposed to be a Private Member's Bill, should pay more attention to this matter. We should have heard a good deal more of the Government's view than we have done. For a junior Minister merely to brush aside this set of Amendments—I think that there are eight or nine of them—with just a curt half-dozen words seems to me to be treating the House with scant respect. The hon. and learned Gentleman is grinning happily now. I do not see what there is to grin about. There are people who are worried about what this House is doing, and it does not help when a junior Minister makes curt speeches instead of answering in detail the points raised by hon. Members, and then proceeds to grin.

The Government found time for the Bill. They should, therefore, have made certain that it was a sound and sensible Measure. The effect of this Clause, and the refusal of the sponsors of the Bill to accept these Amendments to increase the sentences, will be very bad. This will have a widespread effect on the moral attitudes to the unpleasant offence amongst the young people of this country, and the Government must bear their share of responsibility for this state of affairs.

3.30 a.m.

Mr. Mawby

If I might have the right of reply, Mr. Speaker, I would say, shortly, that I do not think the Under-Secretary has done the House any service by the perfunctory way in which he has dealt with these Amendments. At the same time, I thought it extremely interesting for the promoter of the Bill, in his Ninny brief remarks, to go to great lengths to point out that the courts were perfectly capable of deciding whether consent was properly given or not, whether under duress or not, and so on; but that while the courts were perfectly capable of deciding on matters surrounding the guilt or innocence of the accused those same courts were to be hamstrung in many cases by not being able to award the sentence they honestly believed was deserved.

It is surely illogical to say that a court is perfectly competent to decide if a person is guilty or not—whether the other party gave consent or not—while at the same time saying the court is not competent to say what sentence shall be given

for the offence committed. I hope, therefore, that all my hon. Friends will support me in this Amendment to raise the maximum and give the courts the power they should have.

Sir C. Taylor

I must raise my voice again in protest against our not being allowed to vote on each—

Mr. Speaker

If the hon. Member wants to criticise the Chair in its selection of the Amendments and the selection of Amendments for Division, he has a Parliamentary way of doing it.

Sir C. Taylor

I put to you, Mr. Speaker, with great humility that, in the past, we have had many Amendments on many Bills taken quantatively—taken together—but with a vote on individual Amendments. Why are we not allowed to do that tonight?

Mr. Speaker

I have already explained that his narration of the customary procedure is inaccurate. I have decided the Amendments upon which Divisions shall be taken.

Question put, That 'ten' stand part of the Bill:—

The House divided: Ayes 110, Noes 17.

Division No. 423.] AYES [3.35 a.m.
Abse, Leo Gardner, Tony McNamara, J. Kevin
Albu, Austen Ginsburg, David Maddan, Martin
Allaun, Frank (Salford, E.) Gregory, Arnold Marquand, David
Allen, Scholefield Grimond, Rt. Hn. J. Mendelson, J. J.
Archer, Peter Hale, Leslie (Oldham, W.) Mikardo, Ian
Atkinson, Norman (Tottenham) Hamling, William Montgomery, Fergus
Barnes, Michael Haseldine, Norman Newens, Stan
Benn, Rt. Hn. Anthony Wedgwood Hattersley, Roy Noel-Baker, Francis (Swindon)
Booth, Albert Hobden, Dennis (Brighton, K'town) Orme, Stanley
Boyle, Rt Hn. Sir Edward Hooley, Frank Owen, Dr. David (Plymouth, S'tn)
Brooks, Edwin Houghton, Rt. Hn. Douglas Palmer, Arthur
Cant, R. B. Howell, Denis (Small Heath) Pannell, Rt. Hn. Charles
Carmichael, Neil Huckfield, L. Pardoe, John
Castle, Rt. Hn. Barbara Hughes, Emrys (Ayrshire, S.) Parkyn, Brian (Bedford)
Channon, H. P. G. Hunt, John Pavitt, Laurence
Chapman, Donald Jackson, Colin (B'h'se & Spenb'gh) Price, Christopher (Perry Barr)
Crawshaw, Richard Jackson, Peter M. (High Peak) Richard, Ivor
Crossman, Rt. Hn. Richard Jeger, Mrs. Lena (H'b'n&st.P'cras, S.) Ridley, Hn. Nicholas
Dalyell, Tam Jenkins, Hugh (Putney) Robinson, Rt. Hn. Kenneth (St. P'c'as)
Davidson, Arthur (Accrington) Jenkins, Rt. Hn. Roy (Stechford) Robinson, W. O. J. (Walth'stow, E.)
Dell, Edmund Johnson Smith, G. (E. Grinstead) Rowland, Christopher (Meriden)
Diamond, Rt. Hn. John Jones, Rt. Hn. Sir Elwyn (W. Ham, S.) Rowlands, E. (Cardiff, N.)
Dunwoody, Mrs. Gwyneth (Exeter) Judd, Frank Ryan, John
Dunwoody, Dr. John (F'th&C'b'e) Kerr, Mrs. Anne (R'ter & Chatham) Shaw, Arnold (Ilford, S.)
Ellis, John Kerr, Dr. David (W'worth, Central) Shore, Peter (Stepney)
English, Michael Kerr, Russell (Feltham) Silkin, Rt. Hn. John (Deptford)
Ensor, David Kirk, Peter Silverman, Julius (Aston)
Faulds, Andrew Luard, Evan Skeffington, Arthur
Fernyhough, E. Lubbock, Eric Steel, David (Roxburgh)
Fitch, Alan (Wigan) Lyon, Alexander (York) Stonehouse, John
Fletcher, Ted (Darlington) MacDermot, Niall Strauss, Rt. Hn. G. R.
Foot, Michael (Ebbw Vale) Macdonald, A. H. Swingler, Stephen
Fraser, Rt.Hn.Hugh(St'fford&Stone) Mackintosh, John P. Taverne, Dick
Thorpe, Rt. Hn. Jeremy White, Mrs. Eirene Yates, Victor
Varley, Eric G. Williams, Alan Lee (Hornchurch)
Walker-Smith, Rt. Hn. Sir Derek Williams, Mrs. Shirley (Hitchin) TELLERS FOR THE AYES:
Walters, Dennis Wilson, William (Coventry, S.) Mr. Eric Moonman and
Whitaker, Ben Worsley, Marcus Mr. Ian Gilmour.
Allason, James (Hemel Hempstead) Harris, Reader (Heston) Sinclair, Sir George
Bullus, Sir Eric Mahon, Peter (Preston, S.) Taylor, Sir Charles (Eastbourne)
Cordle, John Marten, Neil Taylor, Edward M. (G'gow, Cathcart)
Farr, John Maydon, Lt.-Cmdr. S. L. C.
Giles, Rear-Adm Morgan Morgan, Elystan (Cardiganshire) TELLERS FOR THE NOES:
Goodhew, Victor Page, Graham (Crosby) Mr. Ray Mawby and
Gower, Raymond Percival, Ian Mr. Harold Gurden.