§ Consent to a homosexual act induced by the payment of money or a gift shall not be deemed to constitute consent for the purposes of this Act.—[Mr. Mawby.]
§ Brought up, and read the First time.
§ Mr. Deputy Speaker (Mr. Sydney Irving)
With this proposed new Clause we can discuss new Clause No. 4— "Employers', &c, threats "—Anyone who uses his position as an employer or superior to threaten dismissal or down-grading, &c., in employment for the refusal to engage in homosexual practices shall be guilty of a criminal offence and liable on conviction to imprisonment for a term of five years or to a fine of £5,000.
§ The House divided: Ayes 22, Noes 110.2155
|Division No. 387.]||AYES||[1.15 p.m.|
|Allason, James (Hemel Hempstead)||English, Michael||Pearson, Sir Frank (Clitheroe)|
|Bell, Ronald||Farr, John||Percival, Ian|
|Black, Sir Cyril||Grant-Ferris, R.||Sinclair, Sir George|
|Boyd-Carpenter, Rt. Hn. John||Gurden, Harold||Weatherill, Bernard|
|Cary, Sir Robert||Hogg, Rt. Hn. Quintin|
|Currie, G. B. H.||Jennings, J. C. (Burton)||TELLERS FOR THE AYES:|
|Dance, James||Lewis, Arthur (W. Ham, N.)||Sir Gerald Nabarro and|
|Doughty, Charles||Mahon, Peter (Preston, S.)||Sir Cyril Osborne.|
|Drayson, G. B.||Mawby, Ray|
|Abse, Leo||Heffer, Eric S.||Parkin, Ben (Paddington, N.)|
|Albu, Austen||Hooley, Frank||Pavitt, Laurence|
|Allen, Scholefield||Horner, John||Prentice, Rt. Hn. R. E.|
|Atkinson, Norman (Tottenham)||Howie, W.||Price, David (Eastleigh)|
|Bacon, Rt. Hn. Alice||Huckfield, L.||Rees, Merlyn|
|Barnes, Michael||Hughes, Emrys (Ayrshire, S.)||Richard, Ivor|
|Bidwell, Sydney||Hunt, John||Ridley, Hn. Nicholas|
|Blenkinsop, Arthur||Janner, Sir Barnett||Robinson, W. O. J. (Walth'stow, E.)|
|Booth, Albert||Jeger, Mrs. Lena (H'b'n&St.P'cras,S.)||Roebuck, Roy|
|Boston, Terence||Jenkins, Hugh (Putney)||Rogers, George (Kensington, N.)|
|Bradley, Tom||Jenkins, Rt. Hn. Roy (Stechford)||Rowland, Christopher (Meriden)|
|Cant, R. B.||Johnson, Carol (Lewisham, S.)||Rowlands, E. (Cardiff, N.)|
|Castle, Rt. Hn. Barbara||Judd, Frank||St. John-Stevas, Norman|
|Channon, H. p. G.||Kerr, Dr. David (W'worth, Central)||Shaw, Arnold (Ilford, S.)|
|Chapman, Donald||Kerr, Russell (Feltham)||Sheldon, Robert|
|Coe, Denis||Lee, John (Reading)||Short, Rt. Hn. Edward (N'c'tle-u-Tyne|
|Davidson, Arthur (Accrington)||Lestor, Miss Joan||Silkin, Rt. Hn. John (Deptford)|
|Davies, Dr. Ernest (Stretford)||Lipton, Marcus||Silverman, Sydney (Nelson)|
|Davies, Ednyfed Hudson (Conway)||Lyon, Alexander W. (York)||Snow, Julian|
|Dell, Edmund||Lyons, Edward (Bradford, E.)||Strauss, Rt. Hn. G. R.|
|Dewar, Donald||MacColl, James||Taverne, Dick|
|Dickens, James||Macdonald, A. H.||Teeling, Sir William|
|Dunwoody, Mrs. Gwyneth (Exeter)||Mackie, John||Thomson, Rt. Hn. George|
|Edwards, Robert (Bilston)||Mackintosh, John P.||Wainwright, Richard (Colne Valle)|
|Ellis, John||McNamara, J, Kevin||Walden, Brian (All Saints)|
|Ennals, David||Mallalieu, E. L. (Brigg)||Wallace, George|
|Ensor, David||Mallalieu, J. P. W. (Huddersfield, E.)||Walters, Dennis|
|Fletcher, Raymond (Ilkeston)||Marquand, David||Weitzman, David|
|Fletcher-Cooke, Charles||Maxwell-Hyslop, R. J.||Wells, William (Walsall, N.)|
|Foley, Maurice||Mikardo, Ian||Whitaker, Ben|
|Foot, Michael (Ebbw Vale)||Montgomery, Fergus||Williams, Alan Lee (Hornchurch)|
|Forrester, John||Moonman, Eric||Winnick, David|
|Fraser, Rt. Hn. Hugh (St'fford & Stone)||Mulley, Rt. Hn. Frederick||Wood, Rt. Hn. Richard|
|Fraser, John (Norwood)||Noel-Baker, Rt. Hn. Philip(Derby,S.)||Yates, Victor|
|Freeson, Reginald||Ogden, Eric|
|Gray, Dr. Hugh (Yarmouth)||Owen, Dr. David (Plymouth, S'tn)||TELLERS FOR THE NOES:|
|Hale, Leslie (Oldham, W.)||Pannell, Rt. Hn. Charles||Mr. Eric G. Varley and|
|Hamling, William||Parker, John (Dagenham)||Mr. Peter M. Jackson|
§ Amendment No. 8, in page 1, line 18, leave out from 'offence' to end of line 22.
Amendment No. 9, in line 21, after 'if', insert:
'he is himself suffering from such severe mental abnormality that he'.
Amendment No. 11, in page 2, line 12, leave out from 'private' to end of line 14 and insert:
'but the burden of proving that the act was done with the consent of the parties and that each of the parties had attained the age of twenty-one years shall be upon the accused'.
Amendment No. 12, in line 12, after parties', insert:
'or that the consent was obtained under duress by virtue of the position of authority held by one over the other'.
§ Mr. Mawby
Yes, Mr. Deputy Speaker. The debate will therefore cover a considerable area and my remarks may appear to be a little disjointed. I shall try to link them together and make certain that my views are made quite clear. The Clause refers to the payment of money or the presentation of a gift in a homosexual act. This is occasioned mainly because the Bill does not mention male prostitution. Clause 5 provides that no one shall knowingly wholly or partly live upon the earnings of a male prostitute, but there is no suggestion concerning a third person who may enjoy any monetary benefit arising from a sexual act of this sort. I would have thought that even the greatest humanitarian in the House would not want this state of affairs to continue if the Bill becomes an Act.
We have had many arguments about the age of consent. The promoters of the Bill take the view that the age of 21—the normal age of consent at which a person is expected to reach adulthood—should be the age over which two adults can, if they both consent, commit a sexual act together without any danger of their being hauled before the law.
Many young men over the age of 21—especially now, with a more universal university education—find themselves on the bottom rung of the ladder in industry or commerce, or even while still continuing their education. By virtue of circumstances they have to live at a level which cannot be considered luxurious. If one of those young men is suddenly entertained at a standard which he has never known or even hoped to know before, this could be one of the ways of sending him down this very tricky path. Once that young man has known the sort of entertainment and gifts and money which can be involved in this matter he can easily find himself in circumstances in which he would otherwise never have dreamed of allowing himself to be involved.
I am not specially concerned with older men who decide to resort together with each other in private; I am concerned with young men making their way in life. If the Bill is passed we must lean over backwards to make certain that our young men are given proper protection even against themselves and some of their baser motives. We should make it clear 2158 that we are not prepared to support male prostitution of any description and not only that we shall make it an offence for someone to procure another person or to enjoy part of the earnings of any male prostitute, but that we do not accept male prostitution as a legal institution. That is the only way in which we can provide protection for our young men.
The other proposed new Clause and the Amendments which we are discussing deal with the question of the standing of one person to the other—whether the first is an employer or superior of the second. It is very important to make it clear that when we talk about consent we mean free consent, and that there shall be no duress involved in any consent given by either of the parties. If we are to satisfy ourselves that there is no duress we must make it clear that we shall turn our face against any employer or person in a superior position using that position to try to cause someone to commit a homosexual act.
We have all read of the sort of activities that used to go on in certain parts of Hollywood in the beginning of the cinema boom. Most of us have read of what was known as the "casting couch", upon which, it was said, prospective starlets had to accept that they had no possible future in the film undustry unless they were prepared to pay certain favours to the casting director or any of the other people superior to them.
I do not know how widespread this practice was, but there is evidence to show that it existed. I would hate the situation to arise in which there was any prospect of a casting couch coming into being for young men who wanted to enter or were on the threshold either of the film industry or any other industry. Therefore, it is important to make it clear that, if it is obvious that an employer or superior has used his position to try to debauch a young employee, the whole severity of the law will fall heavily upon him. This is covered by new Clause No. 4.
The sponsor or the Under-Secretary may say that the wording is so wide as to hurt all sorts of people, but I will not go to the stake on any wording. I want to show how I, and, I think, many other people, feel; if the principle is accepted, 2159 I will be pleased. We should accept that no employer should ever be allowed to use his authority to induce a young man to stray from the paths of righteousness. This is most important.
The next point is covered by my Amendment, No. 9, which deals with severe subnormality, where the person concerned in the original act would have to prove that he had no knowledge or reason to suspect that the other man was suffering from severe subnormality. The Amendment tries to be fair, providing that it shall also be a defence for the person concerned to show that he was in such a state of severe mental abnormality himself that he could not have known that the other person was suffering in the same way and that he also was incapable of knowing what he was doing. This would be a useful additional defence to such a person.
The sponsor and the Home Office may say that, in these circumstances, the man would never be brought to court, and, if so, my Amendment loses most of its point, but it is important that a person in this state should be able to plead this defence as well as prove that he had no knowledge that the other man was mentally abnormal.
Amendment No. 12 is covered by my earlier point, the most important of all —whether consent can be accepted as consent if obtained under duress by a superior or employer. One does not need to list the groups of people who are in these peculiar positions which might make them feel that duress could be put upon them. We know of many areas of society where groups of young men over 21 are likely to be in contact with and lower in rank than older men. We should make clear that, where there is any sign of those people using their superiority for this base purpose, the law will come down on their necks.
§ Mr. Percival
I would first ask your guidance, Mr. Deputy Speaker. I had to leave the Chamber for a moment when the new Clause was called, but I understand that new Clause No. 3 is called and that new Clause No. 4, with Amendments Nos. 8, 9, 10, 11 and 12 are to be debated with it.
§ Mr. Deputy Speaker
Except for Amendment No. 10, which I believe has 2160 been withdrawn, the hon. and learned Member is correct.
§ Mr. Deputy Speaker
They have not been selected for separate Divisions; there will be a Division only on new Clause No. 3.
§ Mr. Percival
Then this is a grouping of diverse matters relating to consent that is the heart and soul of the group. Therefore, everything relating to consent is relevant. It is on that basis that I propose to divide my remarks, because it is shorter to group one's remarks under the different elements of consent rather than to go solemnly over every Amendment.
There are four elements of consent. First is the question, what is consent? One cannot understand these matters without considering that. Second, consent to what? Third, consent by whom? Fourth, the burden of proving consent.
Although this is the time when one would prefer to be nourishing the inner man, I thought—I hope that the Bill's promoters will agree—that some important questions arise on this matter of consent. Although we pay tribute to the two hon. Gentlemen whose names are on the back of the Bill and who are also forgoing their lunch to be present, one cannot but regret that they are the only two of those whose names are on the back of the Bill who are here to listen to the views of those who think that there is something further to be considered. I hope that those two hon. Members will make up for all the others and perhaps convey these views to their colleagues or invite them to read HANSARD.
What is sometimes forgotten and can perhaps be appreciated only by a dry and dusty lawyer is what a difficult conception consent is anyway. This may be where lawyers, dry and dusty though they are, are sometimes useful, because they must spend much of their time in the very interesting arguments in court about what is and is not consent. If a person receives a letter saying, "Dear Sir, Unless", and there follows a description of the most horrible consequences of a refusal, upon which he consents, is that consent?
2161 If someone says, "Either you must go without your wages or we will change the law and see that you do not get them," and he says, "I might as well not bother, and obey the wage freeze," can he be said to be consenting to it? That is an interesting question.
One could multiply it by example after example, but I am directing what I have in mind most especially to one of the questions raised by new Clause No. 4. This concerns the bringing to bear by one person upon another of some influence which is in the power of the first person because of their relative positions —their relative positions in anything. I understand the 'reason why the Forces have been exempted from the provisions of the Bill. In the Forces there is a hierarchy from the top down, for the purposes of discipline, in which there is superior after superior after superior all the way down. They are people of position and influence. It is recognised by the promoters of the Bill that it is a dangerous situation, when we talk about consent, where there is a superior officer who has certain inclinations. Nobody has a monopoly of these inclinations, if what we have been told is true. It is recognised that there would be grave danger that a person might use his superior rank to obtain the apparent consent of someone in junior rank which would not he consent at all. I understand that that is the principal reason why the Services are exempt from the provisions of the Bill.
I understand that also to be the reason why the Merchant Navy is specifically excluded. There is also the additional factor that the proposed victim has little scope for avoiding the attentions of his superior, though this is equally true in many Service establishments—for example, overseas, time has to be spent in barracks, and the same consideration applies. But I understand the principal consideration to be that in the Merchant Service there are officers, warrant officers and other ranks and that there is a great danger of a person using rank and position in order to obtain consent which in fact is not consent at all.
I asked myself, and I ask the House to ask itself, why stop there? Can one afford to say that there are three cases in which this danger clearly exists, that we shall exclude them and that then all is 2162 well? I suggest to the promoters of the Bill that that is putting on the blinkers and closing one's eyes. There are many other types of service which have a similar hierarchy. What about the police? Is there anything in the Bill which I have overlooked which touches the police? If not, what is the distinction between the police and the Forces or the Merchant Navy? Is there anything in the Bill which touches the prison service? Is not the same danger and difficulty present there?
The hon. and learned Member asked for guidance in his initial remarks, which I could not give him at the time. It is true that these new Clauses and Amendments are concerned with consent, but with consent in particular circumstances—duress, inducement by money, mental subnormality and so on. When the hon. and learned Member turns to the police force he is outside the scope of the new Clauses and Amendments. He must come back to the new Clauses and the Amendment.
§ Mr. Percival
I greatly appreciate the kindly way in which you put that to me, Mr. Deputy-Speaker. I hope, from the manner in which you put it, that you appreciate that I am trying to keep in order and making my point by illustrations. That is why I referred to those Services.
New Clause No. 4 refers to pressure brought byan employer or superior".In the police force or the prison service, a superior officer would not be an employer but he would be a superior.
I was on the broader point of how difficult the question of consent is all down the line. When I have made the point I shall suggest that this is why it is so necessary to have some provision such as new Clause No. 4. Everybody recognises that there is a danger of this influence existing in the four Services which are expressly excluded. It appears to me that the promoters have simply drawn the line there, put on the blinkers and overlooked the fact that there is a great deal more to it. In almost any walk of life that one cares to name there is a danger of one person being in a position of influence over another. In any kind of service which I have mentioned 2163 there are superiors rather than employers —and one might add the Fire Service, where there are superiors rather than employers.
Then one comes to employers, because ex hypothesi wherever there is an employer, in some respects he is in a superior position. I should like to see new Clause No. 4 a little wider. I should be out of order if I stated in detail why I take that view, but there certainly are other cases in which influence can be brought to bear. For example, somebody who is travelling on behalf of his employer wants a particularly good contract, and it is indicated to him that there is one way in which he may get it. That is another instance in which undue influence of one kind or another may be brought to bear. The question whether the consent which was given was in fact a consent is a difficult question. It is no good the House shutting its eyes to this and thinking that consent can be clearly defined and clearly recognised. It cannot. The question of what is consent and what is not is very blurred. I hope that the promoters of the Bill will give attention to this matter in connection with these Amendments and others which we shall reach later.
Sufficient attention has not been given to the question of what is consent. That is important from two points of view. The Bill starts in Clause 1(1) simply talking about homosexuality. It creates a general impression that this is not very nice but that in fact they are quite nice people messing about in private—and what does it matter? It is not until one reaches page 2 that one sees what the Bill is talking about. The promoters need to be shocked into a sense of reality. On page 2 hon. Members will find that we are talking about buggery and gross indecency. For the same reason as that which I gave when I spoke on another Amendment this morning, I will not in the House be more specific than that, because it involves talking in terms and in a way which I find too disgusting. I have an impression here, as I had on the last Amendment, that some promoters of the Bill are not facing fairly and squarely what they are talking about.
§ Mr. Deputy Speaker
Order. The hon. and learned Gentleman is getting into a general debate on the merits of the Bill, rather than the propositions contained in the new Clauses and Amendments. I hope that he will relate his arguments to the proposals before the House.
§ Mr. Percival
It is difficult to explain this fully without getting out of order. It is rather like doing a jigsaw puzzle. First one takes the pieces with straight edges and puts them together. Then one puts in the trees and houses, whereupon the picture begins to take shape. Eventually one puts in the sky—the hardest bit—to make the complete picture. Until one has reached that point it is not easily possible to see the interconnections of each part. I am doing my utmost to keep to the point before the House.
§ Mr. Doughty
My hon. and learned Friend is referring to… consent for the purposes of this Act.Unless we know the definition of that phrase, we cannot fully discuss new Clauses No. 3 and No. 4.
§ Mr. Percival
I am greatly obliged to my hon. and learned Friend and I was about to ask the House to remind me of the point I had reached in my speech.
§ Mr. Deputy Speaker
Order. I am sure the hon. and learned Gentleman is pleased to have the help of his hon. and learned Friend, but I am afraid that it would still not allow him to again raise the whole general principle of the Bill.
§ Mr. Percival
Why I asked "consent to what?" was because these provisions are intended to provide certain safeguards in relation to consent. Whether or not these safeguards are necessary depends on what it is that is going to be consented to. If it is simply somebody's consent to come out to a dance tomorrow night, then perhaps that does not matter too much. Even consent to have tea in my garden may not matter very much. But when it comes to consent to commit an offence of buggery, it does matter; and it is important for this House—even if hon. Members are a bit shocked about and I hope that they are—to face up to the details of just 2165 what we are discussing when we speak about consent.
Consent by whom? I ask this question because the promoters of the Bill, no doubt with the best intention, have made a mistake which my Amendment, No. 8, would go a good deal of the way to correct. Subsection (3) provides that consent given by a person who is severely subnormal as defined in the Mental Health Act, 1959, shall not be consent: I am sure that that is the view the promoters take. It is really obnoxious and revolting beyond description to contemplate one adult of sound mind indulging in any of these practices with someone of unsound mind. That is revolting beyond belief and the promoters will not dissent from this view. I take it that subsection (3) was inserted because they recognise that something must be done about it.
Have the promoters had a careful look at the Mental Health Act to see what is meant by "severely subnormal"? The 39th volume of Halsbury's Statutes contains four separate definitions of persons of unsound mind. The first is:In this Act 'mental disorder' means mental illness, arrested or incomplete development of mind, psychopathic disorder, and any other disorder or disability of mind; and 'mentally disordered' shall be construed accordingly.I wish that the promoters had simply referred to "anybody who is mentally disordered". That would have included the whole lot. The second is:In this Act 'severe subnormality'"—and that is what we are talking aboutmeans a state of arrested or incomplete development of mind which includes subnormality of intelligence and is of such a nature or degree that the patient is incapable of living an independent life or of guarding himself against serious exploitation, or will be so incapable when of an age to do so.This is a person who has very little wit indeed—a person who needs every protection that society can give him; and that is, no doubt, why the severely subnormal are specifically mentioned in the provision. But the definition to which I was referring does not stop there. The third category of subnormal is:In this Act 'subnormality' means a state of arrested or incomplete development of mind (not amounting to severe subnormality) which includes subnormality of intelligence and is of a nature or degree which requires or is susceptible to medical treatment or other special care or training of the patient.2166 In other words, that is very substantial mental subnormality indeed. The promoters were wrong in limiting what they were trying to do to the severely subnormal. I will not quote the other examples. The subsection should have included the subnormal and anyone suffering from a mental disorder, because it gives one inward revulsion to think of anyone with a mental disorder—whatever one may think of people of sound mind who indulge in these activities; we can differ about that—not being covered by the subsection. By substituting a new formula such as I have described, anyone suffering from a mental disorder would be protected.
In addition, I am worried about the words at the end of subsection (3):… but a person shall not be convicted, on account of the incapacity of such a man to consent, of an offence consisting of such an act if he proves that he did not know and had no reason to suspect that man to be suffering from severe subnormality".We no longer use such terms as "lunatics" and "halfwits". Although we now have a sympathetic approach to these matters, let us face the facts. As drafted, the provision is saying, "You can commit buggery on a halfwit and provided you did not take the trouble to rind out that he is a halfwit you will not be convicted".
§ Mr. Percival
This cannot be right. I gather from the way in which the hon. Member for Pontypool (Mr. Abse) is wagging his head that he is dissenting from my submission. I will listen with interest to what he has to say, particularly if he considers that my interpretation is wrong.
I have some experience of a similar defence. It is in respect of cases of unlawful sexual intercourse. I forget the ages, but it is a defence to prove that one did not know that the girl was under a certain age. However, if she is under 16 it does not matter whether or not one knew; and that is right. If she is older than that, then it is a defence to show that one did not know. I understand that the respective ages are 13 and 16. The ages do not matter for the example I am giving. It is the principle that matters.
There is a very good reason in that context for such a defence to be necessary 2167 because, without wishing to appear to be unfavourable to the opposite sex, I must say that in the experience of those who appear sometimes in our criminal courts it is well known that some young ladies are at least as active in the commission of the offence that is before the court as is the man, and that in order to secure their pleasure—this is not a one-way trade in giving pleasure—they dress themselves up, put paint on their faces, and the like, so that no one could reasonably believe that they were less than, say, 21, when their true age is 16. It is reasonable there to provide that sort of defence.
What reason can there be for that provision in this case? The man is severely subnormal. He does not go out of the way to prove that he has the appearance of being normal so that someone will commit the abominable offence on him. It seems altogether too far fetched to suppose that he would. Furthermore, it should be discoverable by a little care. With a girl aged 16 who looks 21 it may be very difficult to discover that fact, but if someone is severely subnormal—and this is why I read out the definition —are we to say that we could not, just by exercising a little care, find out whether this was a normal person, and should we not be fixed with that duty without any reservation whatever? If a man wants to commit the abominable offence, is it not right that it should be up to him, without any qualification or reservation, to make certain that the person on whom he intends to commit the offence is not suffering from any kind of mental disorder?
I am filling in another piece of the jigsaw, Mr. Deputy Speaker, and now I come back to where my hon. and learned Friend helped me out. It would not matter so much if we were talking about getting the consent of the severely subnormal to buy a 6d. raffle ticket, but when we look at this Bill we see that the person about whom we are talking seeks to commit on the severely subnormal person something unnatural, wholly disgusting and physically dangerous.
I say "physically dangerous", because those of us who have had the misfortune to hear these cases in court know that part of the evidence is very often of physical damage done—I cannot even 2168 complete my sentence, the House must guess the rest; let me say, the physical damage done in the act of committing buggery. Anyone who wants the benefit of this Bill, who wants to do that with someone, should have the full responsibility for making certain that the person with whom they do it is of fully sound mind. If they take any risk at all, it should be upon their own heads, and I urge this point of view on the House.
I accept that those who promote the Bill do so out of a feeling of charity, and in order to lessen the difficulties of some people who have weaknesses. Though I disagree with them, I accept that that is a human point of view, but I say to them, "Do apply your human point of view to both sides. Do think of the possible victim as well. You are postulating in subsection (3) that someone has committed buggery on a person of severe subnormality but in that case think of the person of severe abnormality and not just of the other person."
The other person has a remedy—he does not have to do the act. He can find out beforehand whether this is a person of sound mind but. ex hypothesi, that person cannot. By definition he is not fit to look after himself, and we in this House, in the name of the public, have to look after him and not the person on the other side. The purpose of this Amendment is to remove that special defence altogether, and I urge all hon. Members to think about this argument and to act upon it.
I know that I am taking a little time, Mr. Deputy Speaker, but when four or five major subjects are taken together one has no alternative; one either does nothing, or one makes one's point as best one can. I therefore turn to my Amendment No. 11 to subsection (6) of Clause 1. That subsection reads:It is hereby declared that where in any proceedings it is charged that a homosexual act is an offence the prosecutor shall have the burden of proving that the act was done otherwise than in private—I have read the first four lines of the sentence. Speaking fairly personally, I cannot see why one should put that burden on the prosecution. If people want to take advantage of the Bill why should they not share the burden? But I do not particularly mind that one—let them share 2169 the burden a little, perhaps, or let the prosecution prove it.
But then one reads:or otherwise than with the consent of the parties or that any of the parties had not attained the age of twenty-one years.That means that the prosecution has to prove that the act was not in private, it has to prove lack of consent, and it has to prove that on the date in question the parties had not reached the appropriate age. What are we trying to do—make quite certain there will never be a prosecution? If so, let us say so. But if they want this to be enforceable law I hope that the promoters will look at this point again.
Again, one sees how some of the straight line cases I put at the beginning help with the picture. I was talking earlier about the blurring that comes in when talking about consent, and this becomes very important when we are talking about lack of consent. Let the onus be on the persons accused to prove consent. They are the people who were there. They are the only ones who know. How can anyone know better than they whether there was consent or not?
There would not be a prosecution at all unless the police had some very good reason to believe that there was not consent. This is a safeguard. If the police were to bring a prosecution without having some very good reason to believe that there was a lack of consent, the case would be dismissed with costs against the police. The police would not act like that. The difficult question, if there are any prosecutions, will be whether or not there was a genuine consent, and in my view to put the onus on the prosecution to prove it is virtually to make it impossible to Mill a prosecution.
There is a second consideration and it is one that I ask the promoter of the Bill to bear in mind, because I am sure that if I am right in my interpretation he would be the last person to want to see this consequence. It appears to me that it is the blackmailers' charter. The victim gives his consent, and then he says to the other person, "We know that the police cannot do anything about this unless I say something to them. I shall tell them that I agreed to a bit of gross indecency but that I did not 2170 agree to buggery." That would enable a prosecution to be brought.
The conversation would go on, "And, friend, that must be worth something to you to avoid, must it not?" There would be all sorts of niceties like that. He might say, "I shall go to the police. Remember, you were my employer at the time. It will not be difficult for me to persuade the police that even if I did not say 'No', I did not say 'Yes'."
§ Mr. Doughty
A further difficulty arises with the question of age. In law, nobody knows his own age. Such evidence is entirely hearsay.
§ Mr. Percival
I am obliged to my hon. and learned Friend the Member for Surrey, East (Mr. Doughty), but I have not finished with the other argument yet.
In using the word "victim", I trust that I shall be forgiven if I call the person who is the object of the attention the victim and the other person the operator. I appreciate—this is what makes it so disgusting—that very often what I call the victim is not the victim but is the person who is being paid. He is not the victim at all. One would postulate that it was unlikely that he would say afterwards to the other person, "I shall say that I did not consent." He will make no bones about it. Since it will have been done in private, it will be one man's word against another's.
Where there is any question of a superior relationship—I use "superior" in the most general terms and not in immoral terms—and a relationship which gives a party an influence, however small, over the other, and if, for example, the person in the superior position has a weakness and cannot help it, we are allowing him to put himself into an impossible position.
Suppose that there is not really any question of the exercise of the influence and that the victim was perfectly willing because he thought that he was on to a good thing. He says to the other, "The police would like to know about this". The other says, "Oh, but you have consented". The victim might reply, "Do you think that the police will believe that, when they know that you have just offered me a rise of £10 a month? They 2171 can look in the books and see that it was paid the month after". The one man is absolutely at the mercy of the other. I believe that, quite unintentionally, if this provision remains, it will be a blackmailer's charter. The other thing which I have against it is that it will make prosecution almost impossible. I hope that the promoters of the Bill will give their attention to both these aspects. I shall listen with interest to the answer.
I appreciate that in difficult matters like this it is possible to get the wrong interpretation, but I do not believe that I have done so. Even if what I have said shocks some people—I hope that it does—I believe that what I have said is right. These are practical possibilities that I have adumbrated. They are practical possibilities which the House of Commons, as the custodian of the public interest, ought not to permit and should provide against before the Bill leaves this House.
I have not said anything about the general principle or whether any of these things should be allowed. That is another matter. Everything which I have said is on the hypothesis that it is right to liberalise. That is a word which I have heard used this morning. If I were to compile a dictionary, I should define "liberalise" thus:liberalise (verb), commonly used in conjunction with 'the law' to mean changing the law to bring it into line with the opinion of the speaker".I do not think that it means much more than that.
Likewise, I should describe "enlightened opinion" thus:enlightened (adjective), commonly used with the noun 'opinion' to describe the opinion of the speaker".
§ Mr. Percival
Yes, indeed, Mr. Deputy Speaker. All the deputies, too, are expressly excluded.
Even if one accepts that it is right to change the law, nothing which I have said bears on that. Everything which I have said arises from an assumption that the law is being changed. I have spoken about the dangers which arise if it is 2172 changed in this way without making other alterations. I ask the House to give consideration to these points before letting them pass.
§ 2.15 p.m.
§ Mr. Taverne
In the light of some of the comments that were made in the discussion on New Clause 3, I must remind the House that this is a Private Member's Bill. [HON. MEMBERS: "Oh."]I speak to draw attention to matters which it would be useful for the House to consider and to give the view of the Home Office concerning the effect of certain Amendments.
§ Sir C. Osborne
On a point of order. May I ask for your guidance, Mr. Deputy Speaker? As the hon. and learned Gentleman is claiming that it is a Private Member's Bill, I think that it would be in order for those on this side also to consider the privacy of the Bill.
§ Sir C. Osborne
I am asking for your guidance, Mr. Deputy Speaker. The Under-Secretary has reminded the House that this is a Private Member's Bill.
§ Sir C. Osborne
I am therefore asking, Mr. Deputy Speaker, that when it comes to my turn, if I catch your eye, I shall also be able to talk about the fact that this is a Private Member's Bill.
§ Mr. Deputy Speaker
I am not entirely clear what point of order the hon. Member is addressing to me, but I am sure that when he speaks he will have the same rights as the Under-Secretary.
§ Mr. Taverne
I was pointing out that my role was to draw attention to the effect of Amendments and to raise any matters which it would be useful for the House to consider. I will, therefore, refer to some of the matters which have been dealt with—
§ Mr. Sharples
Surely, the hon. and learned Gentleman cannot say that the 2173 Home Office abrogates all responsibility in a matter of this kind.
§ Mr. Taverne
I was pointing out, as the hon. Member will realise, that it was part of my function to draw attention to points which it is important for the House to consider. I shall not seek to emulate the hon. and learned Member for Southport (Mr. Percival) in the length of the matters which he has raised—
§ Mr. Deputy Speaker
It does not automatically mean that the Under-Secretary is winding up the debate. This would be a matter for the Chair when the time came.
§ Mr. Taverne
It is not my job to wind up the debate. New Clause 3 concerns male prostitutes. It is far the House to decide whether it feels that the question of male prostitutes should be put on the same basis as for female prostitutes. It may be helpful for the House to be reminded of what the Wolfenden Committee said about this. In paragraph 63 of its Report, the Wolfenden Committee said:we should expect that the question whether or not there has been consent' in a particular case would be decided by the same criteria as apply to heterosexual acts between adults. We should expect, for example, that a ' consent' which had been obtained by fraud or threats of violence would be no defence to a criminal charge".It went on to say:We are aware that the quality of the consent may vary; consent may amount to anything from an eager response to a grudging submission. We are aware, too, that money, gifts or hospitality are sometimes used to induce consent. But these considerations apply equally to heterosexual relationships, and we find in them no ground for differentiating, so far as the behaviour of adults is concerned, between homosexual and heterosexual relationships.New Clause 4 is concerned with employers' threats. As the hon. and learned Member for Southport (Mr. Percival) said, the question of consent is a broad concept. The House may take the view that it would be a mistake to single out for special mention particular 2174 cases and, in particular, hypothetical cases. It may be felt that to single out certain cases, such as threats by employers or superiors, would not be the right way to approach a general problem of the criminal law.
It is true that a threat made in the circumstances envisaged in the Clause would not in itself appear to constitute an existing criminal offence, but a man who made such a threat to support an attempt to get another to perform a homosexual act with him would appear to have committed the existing criminal offence of attempting to procure an act of gross indecency or buggery. Therefore, it appears that the creation of an additional offence on the lines proposed in the Clause is unnecessary.
If it could be proved that the act was done only because of the threat, a court would probably hold that there had been no valid consent and the employer or superior would be liable to conviction for the homosexual act.
Suppose that the employee refuses to commit the act. Under this Clause the employer would still be liable for having made the threat. We should then be creating a criminal offence which it would be very difficult indeed to enforce. I am sure that the House does not wish to see the proliferation of criminal offences which are in practice unenforceable. It would be very difficult indeed to get the proof of the threat, which, in the nature of things, would be unlikely to be made before witnesses.
The Clause might cover cases where the employer or superior threatened dismissal and carried out his threat. Even here, it is doubtful whether the provision could be enforced, because it is not easy in such circumstances to prove that the dismissal or threat of dismissal was due to a refusal to engage in homosexual practices. If someone could prove this, he would have his right in civil remedy in any event. Therefore, the first difficulty about new Clause 4 is that one would be creating an offence which it would be extremely difficult to enforce.
§ Mr. Percival
Did I hear the Under-Secretary say that a person on whom the abominable offence had been committed owing to a threat would have a civil remedy? What would it be?
§ Mr. Taverne
I did not say that.
2175 Amendment No. 8 is concerned with the question of offences committed with those suffering from severe subnormality. The hon. and learned Member for Southport said that knowledge was necessary in some cases with girls under 16 and that was reasonable, but that the case of severe subnormality was entirely different in the case of homosexuals. Again, it is for the House to decide whether it takes the view, as the Wolfenden Committee did, that in some respects the law relating to homosexuals should be put on the same footing as that relating to heterosexuals.
In fact, the position under Section 7 of the Sexual Offences Act, 1956, as amended by the Mental Health Act, 1959, would be similar to the position as it would be enacted in the Bill. The idea of committing heterosexual acts with people who are incapable of giving consent is one from which many people would shy away and regard with horror. It is an offence for a man to have sexual intercourse with a woman who is severely subnormal, but it is a defence if he does not know that this severe subnormality was present. The effect of the Bill would be to put the law as to homosexuals on the same basis as the law with regard to heterosexuals.
I do not entirely understand Amendment No. 9, which deals with severe mental abnormality. It would have the effect of restricting the special defence that one did not know to cases where the accused was himself suffering from such severe mental abnormality as to be able to prove that he did not know, and had no reason to suspect, the other man to be severely abnormal. It seems to postulate prosecution for an act performed with a severely subnormal man by a man who is himself so mentally subnormal that he can prove, by reason of that subnormality, that he did not know of, and had no reason to suspect, the severe subnormality of the other man.
§ Mr. Mawby
Perhaps I can help the Under-Secretary. This is an Amendment which I have lifted from the Committee stage, where it was not considered. It was originally tabled by my hon. Friend the Member for Chelmsford (Mr. St. JohnStevas). who is a supporter of the Bill. Perhaps the hon. and learned Gentleman would consult my hon. Friend to find out the basic reasoning of the Amendment.
§ Mr. Taverne
The Amendment, whoever put it forward, seems to make absolute nonsense. Indeed, the hon. and and learned Member for Southport said that a person who was severely subnormal would not in any event know what he was doing. Therefore, I do not think that the Amendment could be pursued with a great deal of profit.
I want to make some comments on the question of the burden of proof, which was referred to by the hon. and learned Member for Southport. It is a general principle of justice which is normally accepted that the burden of proving any criminal charge should lie on the prosecution. What the House must consider is whether we should put the law as to homosexual conduct on the same basis as that relating to heterosexual conduct. It is accepted, in cases of offences of having carnal relations with girls under 16 and under 13, that the prosecution must prove that the age of the girl was under 13 or under 16. As the Bill stands, it would put homosexual conduct on the same basis.
§ Mr. Percival
The hon. and learned Gentleman prays in aid the general law. What is happening in the Bill is that certain exceptions are to be made from the general law. This is the tenor of Clause 1. Is it not perfectly reasonable to say that people who want to bring themselves within that exception must do so?
§ Mr. Taverne
The basic question which was faced by the Wolfenden Committee and which is the substance of the Bill is whether homosexual conduct between consenting adult males should be put on the same basis as heterosexual conduct between consenting adults. If the Bill were amended in the way suggested in Amendment No. 11, the prosecution would have his right in civil remedy of homosexual conduct, whereas it does have to prove the age of the person concerned in cases of carnal knowledge of girls under 16 and under 13.
I am not quite sure that I follow the effect of Amendment No. 12, because Clause 1(6) deals with the burden of proof and declares that in proceedings for homosexual offences it is for the prosecution to prove certain things. All that Amendment No. 12 says is that the prosecution must prove that there was no 2177 consent because a purported consent was given under duress, which is in effect what is already provided for in the Clause. I understand the hon. Member for Totnes to be saying, by this Amendment, that in effect there must be a general provision about duress, including pressure put on people by their superiors.
I return to what was said earlier about employers' threats. The whole question of consent is one which also has to be considered in heterosexual cases. It has to be considered in questions of rape. The question of consent is very often considered by the courts. We can leave the courts to decide whether, in a particular case. consent did or did not exist.
The examples which were given of the casting couch were cases of a type which it is certainly rather difficult to prove. I have no idea whether this practice is widespread. It is said that the casting couch exists in the theatre with people with homosexual tendencies. It would prove very difficult to bring any prosecution. To provide for this by specific provisions in the law might be a difficult thing to do, and in the past the general issue of consent has always been left to the court as a whole to consider.
§ 2.30 p.m.
§ Mr. Doughty
Before I deal with these new Clauses, I should like to refer to certain points raised by the Under-Secretary. This may be a Private Member's Bill, but it is being discussed in Government time. We should remember that very clearly. Although this is a Friday, it is not a private Members' day. Therefore, the Government have got to take full responsibility for this Bill and for its passage if it should go through.
The Under-Secretary said that he rose only to draw attention to certain points raised by hon. Members. Would it not have been better if he had waited to see what those points were, since there are many other hon. Members who want to raise points? We are now in the position of having to say "Will the Under-Secretary please speak again and deal with this point?" It is not usual in these circumstances that those on the Government Front Bench should get up to reply after a very few Members have spoken and when it is obvious that a great many others still wish to speak.
2178 The Under-Secretary went on to say that the purpose of this legislation was to bring this type of practice into line with more normal practices referred to as heterosexual acts. It is nothing of the sort. The Bill deals with the exceptions to normal practices, which, unless the Bill is passed, constitute a very serious criminal type of offence. We should bear that fact closely in mind.
Nor is it right for the Under-Secretary to say that one can take the question of consent to the courts, It is not always easy for a judge in summing up to a jury to say exactly what consent means in law. He should have the assistance of legislation. Take the case, referred to in new Clauses 3 and 4, of a person who consents but does so by reason of financial gain or because he thinks he might receive advancement in his employment. As my hon. and learned Friend the Member for Southport (Mr. Percival) said, these questions of consent are very difficult. A judge may tell a jury, "This consent was freely given"—though it may have been given as a result of the promise of money or hope of promotion "Therefore, there can be no case for you to decide." It is the desire of those who have put down new Clauses 3 and 4 that that should not be allowed to happen. That is why consent is considerably extended by matters that have already been taken out of the Bill—if I may use that expression—as not amounting to excuses for this type of conduct. I refer to the Services, the Merchant Navy and so on.
Clause 3 deals particularly with male prostitutes and those who are overborne by payments of money and gifts. We can assume that many people who indulge in this act may be well off and in a position to give large sums of money to those whom they desire—to use an unpleasant word. Is that to be left in this Bill or is it to be taken out by the new Clause? The question of consent arises in every court. It arises in civil matters —whether consent was given when signing a document, for example. It is always a difficult matter to decide. It is dodging one's responsibilities to say "We will leave it to the court to decide as a question of fact".
When we are considering whether willingness has been obtained by the payment of money or of gifts, this is a matter on which every Member must speak from 2179 his own views, but I do not consider that that should be allowed to be used as a defence for consent. It is no excuse to say, "It is always very difficult to prove because all these acts take place in private between two people." Very often people write silly things. Very often they give cheques bearing their signatures. It is not always the fact that one has to rely on one person's word against another. I do not intend to refer to blackmail and the offer to change one's evidence in return for the payment of money or gifts, though this Bill reeks of blackmail. It is the blackmailer's charter. But to go into the detail of every case which lays itself open to the encouragement of blackmail would take up too much time of the House.
Turning to new Clause 4, as my hon. and learned Friend the Member for Southport said, nowadays we never use words which mean what they say. When we are dealing with a Bill which encourages one of the most unpleasant practices which exist, we are said to be liberalising the law. Nobody gets the sack; he is made redundant. Therefore, if we want to consider fully the question of somebody being made redundant or being offered promotion, or whatever the inducement or threat, from a superior to a young person—I mean somebody just over 21 years of age—who is perhaps anxious to get on in his job, to obtain advancement perhaps in the theatrical world or wherever it is, at the moment that consent is willingly given, in the sense that no force or intimidation are used. This could apply to somebody in a superior position—for example, a senior Minister in his relationship with a back bencher who was after promotion. I mean no disrespect to this House or to any hon. Member when I say that, of course, but it could apply in such a case.
At the moment that would be no offence under the Bill. That is the kind of thing which can take place. It is not provided for in the Bill. We say "Leave it to the courts". That is not fair to the courts, unless we give directions to the courts on what in the special and peculiar circumstances of this Bill can he said to amount to consent and what should not be said to amount to consent.
2180 I turn to one of the other Clauses dealing with the onus of proof. I do not agree with the Under-Secretary when he says, "It is always the duty of the prosecution to prove their case. Therefore, the burden should be on the prosecution throughout". This Bill takes out of the criminal law of this country certain acts which are specified in the Bill. If the defence is going to rely upon the matters raised in the Bill, then it should be for the defence to prove the matters upon which they are relying. It is not unknown to the law that there are several matters where the onus is shifted to the defence if they raise a particular matter. This should be included in the Bill.
Then there is the question of subnormality as defined in the Mental Health Act, 1959. It is, in fact, severe abnormality, according to that definition, which I shall not read again. Surely we are not to allow a person to put forward the excuse that he did not know that the other person was suffering from this extreme mental illness. That is one of the most repugnant aspects of this Bill. If the Amendment removes that provision, I shall gladly vote in favour of it.
I do not wish to repeat the objections which my hon. and learned Friend the Member for Southport raised. No doubt other hon. Members will raise further points. I ask that these two new Clauses be accepted. They are sound, as are the Amendments that are being discussed with them. All of them should be included in the Bill if it ever becomes an Act—and I would only add, even if I go out of order for a moment, Mr. Speaker, that I hope that it will not become an Act.
§ Sir C. Black
I am compelled again to express my sense of great disappointment at the contribution to the debate made by the hon. and learned Gentleman the Joint Under-Secretary of State, which left me quite unconvinced regarding the propositions that he was putting before the House. I do not say this in an unkind way, but it seems to me that the policies he advocates are more and more designed to make the ways of transgressors more and more easy and to make it more and more unlikely that wrongdoers can ever he dealt with by the law. That, I suggest, in the present climate of behaviour in the country is not a policy which the 2181 Home Office ought to be advocating in this House and pursuing.
My general attitude in regard to the Bill is fairly well known from former speeches I have made and votes I have cast and I am sure that I would be out of order to say anything about the general principles of the Bill at this moment. But I want to discuss what seem to me to be the matters that are implicit in the two new Clauses and the Amendments we are debating. I cannot hope to discuss this on the strictly legal considerations which have been canvassed at considerable length by hon. and learned Members skilled in the law and to whom we have listened with great interest. I want to deal with what seem to me to be two or three of the main principles that underly the matter.
The Bill is designed to deal with the cases of particular Acts performed in private by consenting adults and in these two new Clauses and the Amendments we are really dealing with the question of what is meant by the word "consenting"—what is the difference between a male who is consenting in a particular set of circumstances and a male who, in the legal sense, may be said not to be doing so.
I think that I would probably carry the House with me in saying that, to the great majority of people, homosexual acts are repulsive in any circumstances and at any time. But, if that be true, how very much more repulsive they are when one of the parties participates not of his own free will but as the result of the fact that he is being paid a sum of money or offered some inducement. To argue that in these circumstances such a person in a legal sense comes within the word "consenting" seems to me to be straining language in a way in which it should not be strained.
There is general agreement in the House and in the country about the wrongness of discrimination as applied to persons in connection with colour or race. We rightly abominate and detest discrimination in reference to such matters as housing and employment when it is directed against particular individuals, not because of any circumstances for which those individuals have a responsibility, but because they happen to be a certain colour or nationality. We all deplore that kind of discrimination.
2182 But is it not equally wrong that a man should be discriminated against in respect of employment because he prefers to maintain decent and clean moral standards and refuses to submit to the importunities and blandishments of an employer or prospective employer or a landlord or prospective landlord? That seems to me basically to be the issue we are discussing.
I think that it must be within the knowledge of all right bon and hon. Members that it is commonly rumoured—and certainly there is no reason to doubt the general correctness of the rumours—that employment in various walks of life, particularly in reference to the stage and entertainment world, cinema and television, can very often only be obtained as a result of willingness on the part of the individual to participate in the kinds of acts dealt with in this Bill. It is to deal with that situation that we are seeking that safeguards should be introduced into the Bill.
It is, of course, true that these two new Clauses and the Amendments are designed for the protection of persons of all ages. They are not based upon particular age limits. But it must be obvious that the people who particularly need this protection are the younger people, the less mature and less experienced people, rather than people of more mature and more advanced years. If there is one section of the community at present which is deserving of any reasonable protection that the House can give, both in respect of this matter and other moral behaviour, it is surely the younger people who are growing up.
I have the greatest sympathy with young people at present. I have been engaged in one way or another in youth work for a considerable part of my life. I do not take my stand with those who indulge in what I think is indiscriminate and unjustified condemnation of young people in general. The great majority of them have sound standards and good moral principles and are as sound as the younger people of former times.
But where they have my sympathy, and where they seem to me to be deserving of the protection of the House where possible, is in reference to the vastly greater temptations to which they are subject than were young people of 40 2183 or 50 years ago, when I was a young man. It is, in my judgment, a state of affairs of which this House should take cognisance and in which we should, as far as we can, safeguard the people who are the future leaders of our race.
It would be a person blind indeed to the signs of the times who did not recognise that there are powerful vested interests in this country whose one objective is quite clear and plain—the corruption of youth. Corruption is proceeding apace and the crime for which Socrates was wrongly accused and wrongly executed is a crime which is very widely practised in our community. The Under-Secretary made pleas about the dangers and uncertainties created by particular safeguards, and said that we should dismiss the Clauses and Amendments because of legal niceties, but the counsel is always that we should do nothing in the face of this situation and I unashamedly make my appeal that we depart from that form of negation and defeatism, and try to do something to make the country more decent for the people who want to lead decent lives.
§ Sir Frank Pearson
The whole House will be deeply grateful to my hon. and learned Friend the Member for Southport (Mr. Percival) for having dealt with the series of Amendments so competently and with such great legal skill. The subjects of consent and burden of proof which run through the group of Amendments are particularly matters which can best be dealt with by those with legal knowledge and experience. Nevertheless, I think that there is a duty on those of us who may not be legally competent to present to the House the view of possibly the ordinary man on a matter which I believe to be of central importance.
I am sorry that the Home Secretary is leaving, because I wished to deal for a moment with the case as his Under-Secretary put it a few moments ago. [An HON. MEMBER: "The hon. and learned Gentleman has gone too."] As the House will recognise, this shows the total lack of responsibility that the Home Office has for the Bill. I see that the Minister of State is here—
§ The Minister of State, Home Office (Miss Alice Bacon)
I have been here all the time.
§ Sir Frank Pearson
As the Under-Secretary shuffled off any Home Office responsibility for the Bill, I wonder if we can have an assurance from the right hon. Lady that should the proceedings this afternoon not see a termination of our deliberations—
§ Mr. Speaker
Order. The hon. Gentleman had better talk about the multitude of Amendments that he has an opportunity of talking about at the moment.
§ Sir Frank Pearson
I shall move on directly to the Amendment and leave it to the imagination of the House to understand the point I was trying to make.
I think it wrong that the Minister should intervene so early in our deliberations before he can be fully cognisant of all the points hon. Members will put to him. On the other hand, there is the advantage that those of us who wish to contribute later fully understand how thin the Government's case is, having heard it all before. In dealing with new Clause 4 and the group of Amendments, the Under-Secretary turned down the Clause mainly on two grounds, I understood. First, he said that it was totally wrong for us to pick out particular cases and try to legislate for them, and that to do so merely made bad law. If his theory is correct, I suggest that there has rarely been a Bill that particularised more than the one we are considering. Can anybody think of any other Government Measure where it is not an offence to go behind a bush in Regent's Park but it is an offence to go down the steps of Piccadilly Circus? If that is not particularising, I do not know what is. Therefore, the whole argument for turning down the new Clause on the ground that it particularises is totally without substance.
The hon. and learned Gentleman also said that it would be difficult—in fact almost impossible—to prove that a threat had been made by an employer. If he accepts that it is impossible to prove that a threat has been made by an employer, surely it is almost equally impossible to prove that consent has or has not been given? I can see no difference between proving the one or the other. I therefore suggest that the reasons for which the Clause has been turned down are very thin, and in no way justify the position 2185 taken up by the Home Office in this matter.
The hon. and learned Gentleman then turned to the question of burden of proof and the matter of consent. Here I understood that he had only one answer. He said, "Ah, but we are using all the provisions which deal with heterosexual offences and have made them apply to homosexual offences." That may be well; it may be convenient always to follow precedent. But we are dealing with a very different set of circumstances when we deal with homosexual offences. In the other matters the threat f blackmail is not present to the same extent. We are not dealing with an unnatural act or an unnatural offence, whereas in this case we are. Because we are dealing with an unnatural act and an unnatural offence, special provisions should apply to ensure that all those who may be subject to weakness are given particular support and protection.
I support what my hon. Friend the Member for Wimbledon (Sir C. Black) said. I should like to stress the need in our country today to make particular provision for the protection of youth. The House should pay the greatest attention to this.
I regret that not one voice has been raised from the other side during the whole debate to challenge the provisions of the Bill. Not one voice has been raised to lend weight to our requests that proper provision should be made to ensure that the weak and helpless are not made the subject of commercial and other undesirable practices.
I was greatly impressed by the arguments put forward by my hon. and learned Friend the, Member for Southport on the Clauses dealing with those who are mentally sick and mentally subnormal. I was amazed to find that, under this Bill, there are only certain gradations of the mentally ill who will receive protection. However, there are the weak-minded and the feeble-minded. There is no protection for them under the Bill. Let us not forget that, under the new Mental Health Act, there are many people released today from our mental homes and hospitals who are not fully capable of looking after themselves but who are put out into society and 2186 told that they must stand on their own feet. Those are the people whom the right hon. Lady should be at pains to protect, but I can see no provision in the Bill which will protect them.
I hope that the House will give the fullest support not only to the new Clause, which gives special protection against the unscrupulous employer, but also to the Amendments which seek to ensure that those who are feebly-minded get the complete protection of the law.
§ Mr. Abse
If there are those who feel that the short contribution which my hon. and learned Friend the Under-Secretary made when he intervened on the first occasion was inadequate, only the most churlish would suggest that he has not explained why it is that the series of Clauses and Amendments before us now are, in effect, impracticable even if they are desirable.
There is a difference between the Bill's supporters and those who support these Clauses and Amendments, and that difference is founded substantially on the fact that they are not satisfied with the principle adumbrated in the Wolfenden Report concerning consent, where it is made clear that the Committee expects the question of whether or not there has been consent in a particular case to be decided by the same criteria as apply to heterosexual acts between adults. As it is at present drafted, everything has been done in the Bill to implement that recommendation, and that is the great divide between those of us who support the Wolfenden proposals and those who are against us.
I do not believe that I could usefully comment further than has been done except, perhaps, in one particular. It is dealing with the question which is raised substantially in new Clause No. 3, that a homosexual act induced by the payment of money or a gift shall not be deemed to constitute consent.
In another place, the Lord Chancellor drew attention to an identical Amendment which was then being considered and emphasised that the passing of an Amendment of this kind would mean most certainly that the object of many of us who support the Bill could not be achieved. If this Clause were passed, it would mean that all that a blackmailer 2187 would have to do would be to say, "Unless you give me money, I shall tell the police that you paid me something or that you gave me hospitality." If that happened, one of the principal objects of the Bill, namely, the idea that we want to get rid of blackmailers once and for all, would be defeated. It is because of that that I regard this Clause and the other one which we are considering as provisions which would completely sabotage the main intention of the whole Bill.
If it be thought that one is speaking from theory here, I can assure the House that we are not. There is practical experience about which I think the House should know. In 1961, there was considerable concern in Denmark to deal with some of the problems of male prostitution, and the Danish Legislature was induced to pass a Measure which became known throughout Denmark as the "Ugly Bill". It was designed to make it an offence in the event of any money passing between two parties to a homosexual act. It was doing precisely what the hon. Member for Louth (Sir C. Osborne) seeks to do by his Clause.
Although assurances were given that it would be applied only in cases of what was regarded as male prostitution and would not extend to other types of relationships, nevertheless the degree of blackmail which followed from that Bill in 1961 was of such a severe character and so alarmed public opinion as a result of a series of cases that, after its operation for four years, the Minister concerned came before the Danish Legislature, and the Bill was repealed. In other words, what hon. Members seek to do has been attempted before, and it brought about the result which the Lord Chancellor correctly divined in another place would be the inevitable one.
It is for reasons such as these that I hope that the House will reject both the Amendments and the new Clauses.
§ Sir Frank Pearson
Before the hon. Gentleman sits down, will he please deal with the question of mental health?
§ Mr. Dance
We are all extremely grateful to my hon. Friend the Member 2188 for Totnes (Mr. Mawby) for putting these new Clauses and Amendments before us. I am sorry that we cannot say the same for the Under-Secretary of State, who, just as on the previous new Clause, gave no attention and no real answers to the very good points which my hon. Friends have put. We are extremely grateful, also, to my hon. and learned Friend the Member for Southport (Mr. Percival) for raising—it was in most of our minds—the difficult question of consent.
As has been said, there is the question of consent not brought about by brutality or threats of brutality but by various other means. For many years, people have known of the "casting couch" in the world of films and the stage. The male "casting couch" is known very much in the ballet. If new Clause No. 3 is not accepted, there will be blackmail in reverse, not a matter of demanding money from the individual unless he complies but of saying, "You will not get this job, or this promotion, unless you comply". This is a serious matter, which makes it essential to have these new Clauses and certain of the Amendments brought into the Bill.
Here is an example, of which I know, which happened some years ago in the South of France, with disastrous effect on the lives of two young men. There were two old homosexuals living in the South of France, in oriental magnificence in a beautiful villa. For several years, although they were a bit of a joke, they caused no particular harm. Then they began to get tired of one another, and they sought for someone younger, more juvenile and fresh. As a result, they imported two unfortunate youths down to the South of France from London.
These two youths led a life—this bears out exactly what my hon. Friend the Member for Totnes said—to which they were entirely unaccustomed, a life of great luxury the like of which they had never seen before. Time went on and, just as the two old "queers" had got bored with each other, they got bored with the two youths whom they had imported. So the youths had to go.
Those circumstances would be exactly covered by the proposals now before the House. The reference in new Clause No. 3 is to the payment of money or a gift. I maintain that the life which the two youths led in the South of France 2189 could be regarded as a gift. But that gift suddenly rebounded on them. What was the result? I know, because the case has been followed through, that they returned to London, to a drab life which they just could not tolerate because of the extravagance of the life which they had led the previous year, and so they became male prostitutes. From that they became drug addicts.
Do we want that sort of thing to go on? It will. It is going on now, and if the Bill is passed without these new Clauses and Amendments I fear that it will go on with far greater intensity than before. I therefore hope that the new Clauses and Amendments will be accepted.
§ Mr. Mawby
To this very important group of new Clauses and Amendments we have had the shortest possible reply, both from the Under-Secretary of State and the hon. Member for Pontypool (Mr. Abse). The Under-Secretary was at pains to tell the House that this is a Private Member's Bill. I am glad that he told us that, because I had the impression that it had ceased to be a Private Member's Bill and had been taken over by the Government.
§ Mr. Mawby
Does the hon. Gentleman want to intervene? I say this because the Government have adopted the Bill. They have given time on a day which is not a private Members' day, and have in their method of selection ignored a number of excellent Private Members' Bills which now have to take their place in the queue.
§ Mr. Speaker
Order. We have a lot to discuss on these new Clauses and Amendments. The hon. Member must keep to them.
§ Mr. Mawby
I apologise, Mr. Speaker and will say no more about it. In his reply the Under-Secretary relied a great deal upon the Wolfenden Report, as did the hon. Member for Pontypool. The Minister suggested that we ought to accept the Report. This is not the first and certainly will not be the last Report which has not been accepted in all its recommendations. We can think of the debate that occurred only yesterday to emphasise that point. I do not agree 2190 with the Wolfenden Report, and I know that many other hon. Members do not agree with it. It said that there was no ground for any difference being drawn between males and females in this respect. I do not agree. That is why new Clause No. 3 is necessary.
The second main point made by the Under-Secretary was that most of the requirements covered by the new Clauses and Amendments were unenforceable. That remains to be seen. Even if the problem of enforceability exists, I would much rather these provisions be written clearly into the Bill, so that everyone can know what we feel about these practices.
The only point made by the hon. Member for Pontypool was that certain legislation was passed in Denmark in 1961 which had led to a considerable amount of blackmail. We all have our own ideas about the basis for blackmail. That may have been the view taken after four years of operation of that Act, when it was repealed, but many of our own Acts of Parliament which have been in operation for a short time should be repealed, because they do not work. Nevertheless, it looks as thought the Danes took a different view, and they repealed the Bill.
The hon. Member did not say a word about the point made by my hon. Friend the Member for Clitheroe (Sir Frank Pearson) about the mentally subnormal and the various gradations in which one can move from severe subnormality right through the whole gamut. Yet the Bill deals purely and simply with the severely mentally subnormal and not with the feeble-minded. Therefore, our points have not been satisfactorily answered. I am not trying to prevent any of my hon. Friends from putting further points, but, because of the very sparse and unsatisfactory answers which we have had, I suggest to them that we should divide when the times comes.
§ Sir C. Osborne
On a point of order. I seek your guidance, Mr. Speaker. Both 2191 these new Clauses are in my name and I put them down after careful consideration and advice from the Clerks of the House. Is it not a gross infringement of the rights of Private Members—?
|Division No. 388.]||AYES||[3.16 p.m.|
|Abse, Leo||Hart, Mrs. Judith||Panned, Rt. Hn. Charles|
|Albu, Austen||Hattersley, Roy||Parker, John (Dagenham)|
|Allen, Scholefield||Heifer, Eric S.||Pavitt, Laurence|
|Atkinson, Norman (Tottenham)||Hooley, Frank||Perry, Ernest G. (Battersea, S.)|
|Bacon, Rt. Hn. Alice||Horner, John||Prentice, Rt. Hn. R. E.|
|Barnes, Michael||Houghton, Rt. Hn. Douglas||Probert, Arthur|
|Bidwell, Sydney||Howie, w.||Rawlinson, Rt. Hn. Sir Peter|
|Blenkinsop, Arthur||Huckfield, L.||Rees, Merlyn|
|Booth, Albert||Hughes, Emrys (Ayrshire, S.)||Reynolds, G. W.|
|Boston, Terence||Hunt, John||Richard, Ivor|
|Bradley, Tom||Jackson, Peter M. (High Peak)||Ridley, Hn. Nicholas|
|Bruce-Gardyne, J.||Jeger,Mrs.Lena(H'b'n&St.P'cras,S.)||Robinson, W. O. J. (Walth'stow,E.)|
|Cant, R. B.||Jenkin, Patrick (Woodford)||Roebuck, Roy|
|Castle, Rt. Hn. Barbara||Jenkins, Hugh (Putney)||Rogers, George (Kensington, N.)|
|Channon, H. P. G.||Jenkins, Rt. Hn. Roy (Stechford)||Rowland, Christopher (Meriden)|
|Chapman, Donald||Judd, Frank||St. John-Stevas, Norman|
|Coe, Denis||Kerr, Dr. David (W'worth, Central)||Shaw, Arnold (Ilford, S.)|
|Crosland, Rt. Hn. Anthony||Kerr, Russell (Feltham)||Short, Mrs. Renee(W'hampton,N.E.)|
|Davies, Or. Ernest (Stratford)||Lee, John (Reading)||Silkin, Rt. Hn. John (Deptford)|
|Delargy, Hugh||Lestor, Miss Joan||Silverman, Sydney (Nelson)|
|Dell, Edmund||Lipton, Marcus||Snow, Julian|
|Dickens, James||Luard, Evan||Stewart, Rt. Hn. Michael|
|Driberg, Tom||Lyon, Alexander W. (York)||Strauss, Rt. Hn. G. R.|
|Dunnett, Jack||Lyons, Edward (Bradford, E.)||Taverne, Dick|
|Edwards, Robert (Bilston)||MacColl, James||Teeling, Sir William|
|Ellis, John||Macdonald, A. H.||Thomson, Rt. Hn. George|
|English, Michael||Mackie, John||Vaughan-Morgan, Rt. Hn. Sir John|
|Ennals, David||Mackintosh, John P.||Wainwright, Richard (Colne Valley)|
|Fitch, Alan (Wigan)||McNamara, J. Kevin||Wallace, George|
|Fletcher, Raymond (Ilkeston)||Mallalieu, E. L. (Brigg)||Walters, Dennis|
|Fletcher-Cooke, Charles||Marsh, Rt. Hn. Richard||Weitzman, David|
|Foley, Maurice||Maxwell-Hyslop, R. J.||Whitaker, Ben|
|Foot, Michael (Ebbw Vale)||Mayhew, Christopher||Williams, Alan Lee (Hornchurch)|
|Forrester, John||Mendelson, J. J.||Williams, Mrs. Shirley (Hitchin)|
|Fraser, John (Norwood)||Mikardo, Ian||Winnick, David|
|Freeson, Reginald||Montgomery, Fergus||Wood, Rt. Hn. Richard|
|Ginsburg, David||Moonman, Eric||Yates, Victor|
|Gray, Dr. Hugh (Yarmouth)||Mulley, Rt. Hn. Frederick|
|Greenwood, Rt. Hn. Anthony||Newens, Stan||TELLERS FOR THE AYES:|
|Grieve, Percy||Ogden, Eric||Mr. Eric G. Varley and|
|Hale, Leslie (Oldham, W.)||Orbach, Maurice||Mr. E. Rowlands.|
|Hamling, William||Owen, Dr. David (Plymouth, S'tn)|
|Bell, Ronald||Drayson, G. B.||Osborne, Sir Cyril (Louth)|
|Biggs-Davison, John||Harvie Anderson, Miss||Pearson, Sir Frank (Clitheroe)|
|Black, Sir Cyril||Irvine, Bryant Godman (Rye)||Percival, Ian|
|Boyd-Carpenter, Rt. Hn. John||Jennings, J. C. (Burton)||Sinclair, Sir George|
|Cary, Sir Robert||Lewis, Arthur (W. Ham, N.)||Tomney, Frank|
|Dance, James||Mahon, Peter (Preston, S.)|
|Doughty, Charles||Mitchell, David (Basingstoke)||TELLERS FOR THE NOES:|
|Mr. Ray Mawby and Mr. John Farr.|
§ Mr. Speaker
I have been asked whether I would permit a Division on new Clause No. 4 after we have dealt with new Clause No 3. That will be permitted.
§ Question has been put to the House, That the Question be now put. It is for the Chair to accept or reject it.
§ Question put, That the Question be now put:—
§ The House divided: Ayes 121, Noes 19.
§ Question put accordingly, That the Clause be read a Second time:—
§ The House divided: Ayes 19, Noes 124.
|Mitchell, David (Basingstoke)||Percival, Ian||TELLERS FOR THE AYES:|
|Orr-Ewing, Sir Ian||Sinclair, Sir George||Mr. John Farr and|
|Osborne, Sir Cyril (Louth)||Tomney, Frank||Mr. James Dance.|
|Pearson, Sir Frank (Clitheroe)|
|Abse, Leo||Hamling, William||Parker, John (Dagenham)|
|Albu, Austen||Hart, Mrs. Judith||Pavitt, Laurence|
|Allen, Scholefield||Hattersley, Roy||Perry, Ernest G. (Battersea, S.)|
|Atkinson, Norman (Tottenham)||Heffer, Eric S.||Prentice, Rt. Hn. n. E.|
|Bacon, Rt. Hn. Alice||Hooley, Frank||Probert, Arthur|
|Barnes, Michael||Horner, John||Rawlinson, Rt. Hn. Sir Peter|
|Bell, Ronald||Houghton, Rt. Hn. Douglas||Rees, Merlyn|
|Bidwell, Sydney||Howie, W.||Reynolds, G. W.|
|Blenkinsop, Arthur||Huckfield, L.||Richard, Ivor|
|Booth, Albert||Hughes, Emrys (Ayrshire, S.)||Ridley, Hn. Nicholas|
|Boston, Terence||Hunt, John||Robinson, W. O. J. (Walth'stow.E.)|
|Bradley, Tom||Jackson, Peter M. (High Peak)||Roebuck, Roy|
|Bruce-Gardyne, J.||Jeger.Mrs.Lena(H'b'n&St.P'cras, S.)||Rogers, George (Kensington, N.)|
|Cant, R. B.||Jenkins, Hugh (Putney)||Rowland, Christopher (Meriden)|
|Castle, Rt. Hn. Barbara||Jenkins, Rt. Hn. Roy (Stechford)||St. John-Stevas, Norman|
|Channon, H. P. G.||Judd, Frank||Sharples, Richard|
|Chapman, Donald||Kerr, Dr. David (W'worth, Central)||Shaw, Arnold (Ilford, S.)|
|Coe, Denis||Kerr, Russell (Feltham)||Short, Mrs. Renée(W'hampton,N.E.)|
|Crosland, Rt. Hn. Anthony||Lee, John (Reading)||Silkin, Rt. Hn. John (Deptford)|
|Davies, Dr. Ernest (Stretford)||Lestor, Miss Joan||Silverman, Sydney (Nelson)|
|Delargy, Hugh||Lip ton, Marcus||Snow, Julian|
|Dell, Edmund||Luard, Evan||Stewart, Rt. Hn. Michael|
|Dickens, James||Lyon, Alexander W. (York)||Strauss, Rt. Hn. G. R.|
|Driberg, Tom||Lyons, Edward (Bradford, E.)||Taverne, Dick|
|Dunnett, Jack||MacColl, James||Teeling, Sir William|
|Edwards, Robert (Bitston)||Macdonald, A. H.||Thomson, Rt. Hn. George|
|Ellis, John||Mackie, John||Vaughan-Morgan, Rt. Hn. Sir John|
|English, Michael||Mackintosh, John P.||Wainwright, Richard (Colne Valley)|
|Ennals, David||McNamara, J. Kevin||Walker-Smith, Rt. Hn. Sir Derek|
|Fitch, Alan (Wigan)||Mallalieu, E. L. (Brigg)||Wallace, George|
|Fletcher, Raymond (Ilkeston)||Marsh, Rt. Hn. Richard||Walters, Dennis|
|Fletcher-Cooke, Charles||Maxwell-Hyslop, R. J.||Weitzman, David|
|Foley, Maurice||Mayhew, Christopher||Whitaker, Ben|
|Foot, Michael (Ebbw Vale)||Mendelson, J. J.||Williams, Alan Lee (Hornchurch)|
|Forrester, John||Mikardo, Ian||Williams, Mrs. Shirley (Hitchin)|
|Fraser,Rt.Hn.Hugh(St'fford & Stone)||Montgomery, Fergus||Winnick, David|
|Fraser, John (Norwood)||Moonman, Eric||Wood, Rt. Hn. Richard|
|Freeson, Reginald||Mulley, Rt. Hn. Frederick||Yates, Victor|
|Ginsburg, David||Newens, Stan|
|Gray, Dr. Hugh (Yarmouth)||Ogden, Eric||TELLERS FOR THE NOES:|
|Greenwood, Rt. Hn. Anthony||Orbach, Maurice||Mr. E. Rowlands and|
|Grieve, Percy||Owen, Dr. David (Plymouth, S'tn)||Mr. Eric G. Varley.|
|Hale, Leslie (Oldham, W.)||Pannell, Rt. Hn. Charles|