§ Order for Second Reading read.
§ 8.49 p.m.
§ The Lord Advocate (Mr. Ronald King Murray)
I beg to move, That the Bill be now read a Second time.
The Bill consolidates in relation to Scotland the Criminal Law (Amendment) Acts 1885 to 1928 in their entirety, the Immoral Traffic (Scotland) Act 1902 and other closely related enactments. The Bill does not seek to consolidate certain provisions to be found in the Burgh Police (Scotland) Acts relating to sexual offences, or similar provisions contained in local enactments, since those provisions do not apply throughout Scotland, or the Incest Act 1567 as that field of law does not readily lend itself to consolidation.
The Bill has been referred to the Joint Committee on Consolidation &c Bills in the usual way, and that Committee has reported that it considers that the Bill, as amended by it, is pure consolidation and represents the existing law. I would underline that finding, for it means that it would be wrong for anybody to take the view that restatement of the law in this or any other consolidation Bill in any way upgrades, modernises or gives added force to the old statutory provisions which are consolidated. The Committee also reported that there was no point in the Bill to which the attention of Parliament should be drawn.
In the ordinary course of events, that would be conclusive in a consolidation Bill. However, this Bill has been criticised in certain quarters for re-enacting in Clause 7 the provisions of Section 11 of the Criminal Law Amendment Act 1885 relating to gross indecency between males. These critics make no secret of their desire to reform the law of Scotland in that regard. They object to Clause 7 because, instead of reforming the law, it restates it unchanged. In my opinion this criticism is misplaced. The Bill is not intended for any purpose other than consolidation. Enthusiasts for any particular reforms will rapidly destroy the consolidation procedure if they abuse or bend it to promote their own special reforms.
137 As the Bill seeks to consolidate the whole of the Criminal Law Amendment Acts in regard to Scotland, it would be wrong to omit from the consolidation this single provision, Clause 7. Not only would it be wrong from the point of view of the principle of consolidation but it would be misleading to the public. People turning to this measure would expect to find all the Criminal Law Amendment Act offences in it. If they did not find one—gross indecency between males—they might be misled into thinking that that offence had been entirely eliminated which would be incorrect.
The Scottish Law Commission is responsible for consolidation proposals. This consolidation was included by the Commission in its second programme of consolidation and statute law revision in 1973. In the Commission's view the Bill represents a desirable and useful consolidation. The omission of Clause 7 would, in the Commission's view, result in an incomplete and unsatisfactory consolidation. The Commission considers that the desire to reform the law should not be allowed to affect the content of a consolidation Bill such as this. In giving that view, the Commission makes it clear that it expresses no opinion on the merits or demerits of homosexual law reform. I would respectfully agree.
A main social purpose of the Acts here consolidated—the Criminal Law Amendment Acts—is to give adequate protection against abuses of a sexual nature which may be imposed upon young people, both male and female. An element of that enters into the other Act that I mentioned at the outset. It would be undesirable in terms of this social purpose to have the enactments relating to young females consolidated in the Bill whilst an important protection for young males was left to stand alone in the 1885 Act.
The point of consolidation is to bring together in one Act the statute law as it is, not as some people would like it to be. Consolidation does not prejudice reform. I would underline that to my hon. Friend the Member for Edinburgh, Central (Mr. Cook). Indeed, it may be a prelude to it in that it may highlight areas of the law which may be thought to need review. But in an area such as 138 that covered by the Bill, and by Clause 7 in particular, there is bound to be controversy in any reform that is proposed and deep moral feelings for and against. Controversy of that kind is alien to the consolidation process. The proper vehicle for it is not a consolidation Bill but a Private Member's Bill. Indeed, that was the channel used to achieve reform in England in 1967.
Perhaps hon. Members will accept that, but some will say that the enactment of the present Bill might be taken as an illiberal act, as a hardening of the law against homosexual behaviour. I can give a categorical assurance that there is no legal basis for that view. Equally, it does not imply any change in prosecution policy. Crown Office policy under successive Lord Advocates for many decades—I stress "many decades"; it is not a recent development—has been and remains that there should in general be no prosecutions for homosexual acts carried out in private between consenting adults. Before qualifying for such consideration, both parties must be over 21, each must have clearly and freely consented, and the place must be private in the sense that the public have no right of access to it and what is done there cannot be observed by the public.
In conclusion, I stress the dangers, however laudable the motives may be, of using consolidation Bills to raise points on the merits or demerits of the law as it is. The essence of the consolidation procedure is that Parliament voluntarily forgoes discussion on the merits of the law to be consolidated and refers consolidation Bills to a Joint Committee of both Houses of Parliament, which goes through each Bill line by line primarily to ensure that it does not alter the pre-existing law as it was enacted.
If the Joint Committee has done its job properly, there ought to be very little call for amendment of the Bill, and, of course, it is contrary to the whole spirit of consolidation that there should be amendments directed, however subtly or deviously they are framed, to the merits or demerits of the law to be consolidated. If Parliament allowed itself to be seduced by such temptations front its self-denying ordinance, the advantages of the consolidation Bill procedure would rapidly evaporate.
139 I hope that the House will consider that matter with the seriousness it deserves, and that this consolidation Bill can be given a Second Reading tonight—and in due course its other stages—without the introduction of a note of controversy alien to the consolidation procedure.
§ Mr. Robert Hughes (Aberdeen, North)
I apologise to my right hon. and learned Friend for missing the first 30 seconds or so of his speech. Why is it necessary to have consolidation of the law into this comprehensive form?
§ The Lord Advocate
Perhaps my hon. Friend will do me the honour of reading the report of my speech in Hansard tomorrow. I referred to the Scottish Law Commission, which dealt with the matter comprehensively in its second programme on the consolidation of Scottish statute law.
§ 8.58 p.m.
§ Mr. Malcolm Rifkind (Edinburgh, Pentlands)
As the Lord Advocate said, this is a consolidation measure, and, clearly, it will be of some use to those whose job it is to practise the law and to advise the public on its implications. So far as I am aware, however, there has been no substantial demand in the legal profession for a consolidation measure of this kind.
I do not deny that the Bill will be of some limited benefit to lawyers, but I must say, as a preliminary comment, that if the Government found they had sufficient parliamentary time for consideration of this Bill, there are hon. Members on both sides, I am sure, who would have preferred them to use that time for legislation to modernise the Scottish law on sexual offences instead of merely consolidating it. Clearly, whatever one's view about what those offences should be, modernisation is necessary and is desired. One need only look at the present Bill to see that it includes within its provisions everything from the white slave traffic—that is Clause 1—to a whole series of sexual offences and various other matters.
I wish to direct attention to Clause 7, to which the Lord Advocate made special reference. I speak for myself here, since this is not a matter on which views are 140 held by political parties as such, but I consider that Clause 7 should not be included in this consolidation Bill, and in saying that I make no comment on the merits or otherwise of the law as it presently stands. Clause 7 repeats the provisions of Section 11 of the Criminal Law Amendment Act 1885. Among other things, that section provides that homosexual activity in private between consenting adults is a criminal offence, and it refers to various other matters relating to homosexual activity. Irrespective of past, present or future policies of Lord Advocates it has been, is and will remain a criminal offence in Scotland for homosexuals to conduct their activities, even though they may be adult and consenting and though their activities take place in private.
§ Mr. Rifkind
My hon. Friend may be right, but the question is whether it is appropriate for the Government to ask Parliament to approve in a consolidation measure provisions which the Government have no intention of enforcing. It would be different if, as my hon. Friend the Member for Edinburgh, South (Mr. Hutchison) might prefer, the law were enforced. The Government would then be entitled to ask the House to include such provision in a consolidation measure.
But we have the remarkable situation in which the Lord Advocate has told me in a Written Answer that he has not changed the policy adopted by previous Lord Advocates of not prosecuting cases of homosexual activities between consenting adults in private. In his reply the right hon. and learned Gentleman stipulated the special circumstances which applied when a Lord Advocate decided not to prosecute. If the House approves this consolidation measure, we shall have on the statute book activities which will continue to be a criminal offence although the Lord Advocate has categorically stated that he has no intention of treating them as a criminal offence. This is unprecedented.
This provision should not be included in a consolidation measure. The Bill, as a whole, deals with heterosexual offences This is the only part which does not deal with such offences and that, apart from any other argument, is a strong reason 141 for not including it in a consolidation Bill.
The Lord Advocate has said that removing this controversial aspect would endanger the whole consolidation process. This is a spurious argument. The right hon. and learned Gentleman has admitted that the Bill does not consolidate the law on all sexual offences in Scotland. If it were a comprehensive Bill covering all sexual offences, it could be argued that it was illogical and unsound to exempt some activities from its provisions. However, the Lord Advocate told me in a Written Answer last week:The main statutory provisions concerning offences in Scotland with a sexual connotation which are not included in the Bill are the Burgh Police (Scotland) Act 1892, Sections 380, 381, 401 and 403; the Vagrancy Act 1824, Section 4, as applied to Scotland by the Prevention of Crime Act 1871, Section 15; and the Incest Act 1567. Local Acts are also excluded from the Bill."—[Official Report, 18th October 1976; Vol. 917, c. 265.]We thus have a consolidation Bill which merely consolidates the law on certain sexual offences. There would be nothing unsound in eliminating certain provisions from the Bill. That would not threaten its purpose.
The whole purpose of a consolidation Bill is not to make any difference to the public, but to benefit only those who have to make constant reference to legislation. Surely it would be logical to include in the Bill those offences which are still treated as offences. They are the only ones with which legal practitioners are concerned.
A consolidation Bill is of no benefit or hindrance to the community as a whole. Its benefit, if it has one, is to lawyers—people who must regularly refer to legislation and to whom it is more convenient to have a single measure rather than a dozen measures to which to refer.
If an activity is no longer treated as a criminal offence, irrespective of still technically being a criminal offence, it is of no benefit to lawyers or to anyone else to have it included in a consolidation measure. It is an interesting anachronism which rests on the statute book and can quietly be ignored if the Lord Advocate so wishes.
§ The Lord Advocate
The hon. Gentleman is focusing the little advantage 142 that there might be in having this consolidation measure on the basis that there are other sexual offences outside its ambit. What possible benefit would there be in dropping Clause 7?
§ Mr. Rifkind
I am happy to answer that question, because I was coming to that point. I accept that we cannot seek to amend the Bill to change the law. The law must remain as it was before the consolidation Bill was introduced. Therefore, the Lord Advocate is right to put that question to me. The right hon. and learned Gentleman, who appears to concede that there does not appear to be much benefit in including Clause 7, asks what is the advantage of leaving it out. The Lord Advocate indicated how, for many years, it has been the practice of successive Lord Advocates not to prosecute homosexual activities between consenting adults in private.
Clearly this is still a sensitive subject. Many people, including my hon. Friend the Member for Edinburgh, South, believe that it ought to be a criminal offence and be treated as such. Others believe not only that it should not be treated as a criminal offence, but that it should be removed from the statute book, as in England and Wales.
It is one thing to overlook or not to insist on a provision in an Act of Parliament which is almost 100 years old, but it is quite a different matter for both Parliament and the public to ask Parliament in 1976 to include in a statute a provision which the Minister categorically stated he had no intention of enforcing in circumstances which he described. It is unsound. It does Parliament and the public a disservice, because we have the continuation of uncertainty. It would be preferable, if the law cannot be changed at the moment, to leave this as a section of a 100-year-old Act than to ask Parliament to indulge in gobbledegook.
It is an insult to Parliament to ask it to approve legislation which will be treated not as legislation but as if it had never existed on the statute book. It is doing Parliament a disservice, it is not doing practitioners of the law any good service, and it is causing grave concern among those sections of the population who fear that they might be affected by it.
143 As a lawyer, I understand—no doubt others in the House also understand—that a consolidation measure does not change the law. But when members of the public, especially those who might be subjected to prosecution, see that Parliament appears to be restating its belief that homosexual activities between consenting adults in private is a criminal offence, it is not unreasonable for those who are not lawyers or parliamentarians to assume that Parliament has decided that this should not only continue to be a criminal offence, but, like all other criminal offences, be treated as such. That is the problem.
I accept that the Lord Advocate's statement, that there is no change in policy, is completely sincere. But that is not sufficient. With respect, his tenure of office will be temporary—however long temporary might be—and he cannot bind, nor seek to bind, his successors.
§ The Lord Advocate
Surely the hon. Gentleman accepts that the Lord Advocate in Scotland has discretion whether to prosecute. I imagine that he would not wish to dismiss that discretion. Surely he would not want the prosecutor to prosecute every charge brought under every statute which made something criminal. In that situation, does he accept that it is desirable, if he wants the certainty that he claims, to change the substantive law?
§ Mr. Rifkind
I accept that it is desirable to change the substantive law. But the Lord Advocate is not seeking to do that, and there is no opportunity for the House to do what he suggests.
I entirely accept that it is desirable that the Lord Advocate or the procurator fiscal should have discretion to decide whether in a particular case brought to his attention a charge should be made, but that is not what we are talking about here. In this matter we have something unique in the law of Scotland. In advance of the circumstances being brought to the attention of the Lord Advocate he has stated a general policy. He does not say that he will consider each case as it is presented to him and in some cases might decide not to prosecute. To be fair, he is trying to reassure the public by saying that cases of homosexual activities 144 between consenting adults in private will not be prosecuted—
§ Mr. Rifkind
The Lord Advocate said:I have not changed the policy adopted by previous Lord Advocates not to prosecute cases of homosexual activities between consenting adults in private.… Before qualifying for such consideration, both parties must be over 21, each must have clearly and freely consented, and the place must be private in the sense that the public have no right of access to it and that what is done there cannot be observed by the public."—[Official Report, 18th October 1976; Vol. 917, c. 264.]The Lord Advocate has presumably given a binding assurance that he will not prosecute cases of homosexual activities between consenting adults in private in any situation brought to his notice where these criteria apply. I accept that the Lord Advocate's predecessors gave exactly the same assurance, but it must be unique for a prosecuting authority to say that, irrespective of the facts, as long as the participants conform to these criteria, no prosecution will follow, although the activity is and remains a criminal offence.
The Lord Advocate must accept that in the public eye—the public not being knowledgeable of the technicalities of these matters—Parliament in 1976 appears again to reaffirm that this is criminal behaviour, and the public naturally expect it to be treated as such. I hope that the Lord Advocate will give this matter reconsideration and that he will listen to the arguments put forward from both sides of the House.
This is not a party matter. No doubt some of my hon. Friends disagree with my point of view and some of the Lord Advocate's hon. Friends disagree with his. This is a matter which has caused significant public concern. There is no benefit, other than of the most minimal type, to anyone from the inclusion of the provision in the consolidation measure. There has been no pressure from any practitioner of the law for the change to be made. No harm would be done by leaving this measure as part of a 100-year-old Act rather than for us to appear to approve it in this 1976 Bill. On that basis, I hope that the Lord Advocate will reconsider his position.
§ 9.13 p.m.
§ Mr. Robb F. Cook (Edinburgh, Central)
I intend to make only a brief intervention, as this is a matter to which we shall have the opportunity to return next week. It would be wrong to let this Second Reading debate pass by without impressing on the Lord Advocate that the anxiety expressed so persuasively by the hon. Member for Edinburgh, Pent-lands (Mr. Rifkind) is shared by at least some Government supporters.
There are two aspects to the problem we face in Clause 7. The first is the situation of those who are liable to prosecution under the terms of Clause 7. No one has been prosecuted for homosexual acts in private in recent years—for some decades now, as the Lord Advocate said—quite properly so. Apart from any change there may have been in the social climate over the past decade and a half, it would be intolerable if an act which took place in private and affected only the private life of those taking part were to be subject to criminal action in Scotland after it had ceased to be a criminal act in the greater part of the United Kingdom. So long as we remain one country, it would be intolerable if what is a perfectly legal private act in the greater part of the country should be subject to criminal proceedings in the lesser part.
My right hon. and learned Friend the Lord Advocate repeated his assurance that so long as he is Lord Advocate the Crown will not prosecute for homosexual acts between consenting adults in private. I invite him to reflect on the purpose of that assurance. Surely, a large part of that assurance was intended to relieve the anxiety felt by those who find themselves liable to prosecution under a statute which the Crown is not prepared to implement. If that is at least part of the purpose of the assurance, I can tell him that it has been largely undone by the introduction of this measure and the inclusion of Clause 7. It has created a great deal of alarm among those liable to prosecution under that clause.
The hon. Member for Edinburgh, Pentlands, the Lord Advocate and I know that the introduction of this consolidation measure does not change the law. But quite frankly I doubt whether 1 per cent. of the population, apart from professional 146 politicians or professional lawyers, understand what consolidation law is all about. Indeed, having spent the greater part of last week talking to Members of Parliament about the Bill I can tell the Lord Advocate that I believe that only 1 per cent. of Members of Parliament understand consolidation law. I am not necessarily including myself in that 1 per cent. It is therefore not surprising that the introduction of this measure has caused a great deal of alarm—perhaps needless alarm—on the part of those liable to prosecution under Clause 7. It is not surprising that even among those with a greater understanding of legal matters, and with a knowledge of what consolidation law is about, it has created alarm, I believe with some foundation, that the ordinary policeman on the beat may not appreciate that when Parliament passes an Act in 1976 it does not intend him to implement that Act.
That brings me to the second aspect of the situation which concerns me. This relates to the position of the Lord Advocate and of this House. It seems to me hardly calculated to encourage respect for the office of the Lord Advocate to come to the House of Commons and lay before it a measure, and invite us to pass that measure, while at the same time telling us that he does not intend to prosecute under one particular clause in that measure. It is hardly calculated to encourage general respect for this House, or the legislation we pass, if we are asked to pass laws which at the same time we are explicitly told will not be implemented. To the ordinary man in the street this will look like a choice piece of evidence that Parliament lives on the other side of the looking-glass.
Even on the most objective view it is a curious precedent that as a Parliament sitting in session, we as Back Benchers are being invited to pass a law which the member of the Executive responsible for that law tells us he does not propose to implement. In practice, I welcome the assurance that the Lord Advocate is not prepared to implement it but as a Back Bencher I find it a worrying precedent that we are in a situation in which the Government are presenting us with a Bill, and asking us to endorse it, and we are told that whether we do or not the Government do not intend to prosecute or carry out the Bill.
147 For all those reasons it is highly regrettable that this measure was brought forward with Clause 7 included. I do not myself share the view of the Lord Advocate that had the Government omitted Clause 7 it would have been seen as prejudging the issue of reform. After all, if Clause 7 had not been included, the matter would still have remained the law of the land under the 1885 Act. There would have been no change in the law and at least Parliament would not have been put in the position of appearing to endorse the view that homosexual acts in private between consenting adults should be a criminal act.
Having looked through the Bill in general I cannot see what the case is for this Bill having priority as a consolidation measure. It was said that the Scottish Law Commission had requested consolidation in this matter, but it is difficult to see what relevance much of the mumbo jumbo in the Bill has to modern life at the end of the 20th century, or why it should require priority in consolidation. For instance, Clause 11 provides the courts with the powers to divest the authority of a master or mistress with a maidservant under 16 if it discovers that master or mistress to be immoral. Quite apart from the use of the terms "master" and "mistress" in 1976, if there is a master or mistress employing a maidservant under the age of 16, there are already ample laws to prosecute under the Employment and Education Acts without making it subject to a sexual offences Bill.
Again, Clause 1 is quite explicitly concerned with stopping the white slave trade. There may well still be some vestigial remnants of white slave traffic in Scotland. It may be that we should not throw aside the protection offered in nineteenth century statutes, but I very much doubt that it is of such pressing importance that it requires consolidation for everyday use in the courts.
I attempted to discover how relevant some of these clauses were by putting down a Parliamentary Question to the Secretary of State to ask how many prosecutions there had been under certain of these clauses. I am sorry to say that most of the information does not appear to be available. For example, I was told that there are no statistics available about the number of prosecutions 148 under Clause 2(2) which provides that:A man who induces a married woman to permit him to have sexual intercourse with her by impersonating her husband shall be deemed to be guilty of rape.I am not surprised that there are no statistics available for prosecutions under this clause, because I suspect that there have been gey few in the past 30 years. I suspect also that there are more pressing anxieties in the minds of the women of Scotland than the likelihood that the man next door might impersonate their husband in order fraudulently to obtain sexual intercourse. There are more pressing problems requiring legislation than the re-enactment of this Victorian sex fantasy.
However, the Scottish Law Commission has apparently said that it would be useful to have this legislation consolidated and I cannot argue with that. For all I know, cases of this nature are going through the courts every second day. My right hon. and learned Friend brings forward the Bill at the request of the Scottish Law Commission. Well and good—but at the very least we cannot allow Parliament to affirm the view in 1976 that private acts of homosexual activity between consenting adults should be criminal acts. I shall therefore be supporting the hon. Member for Edinburgh, Pentlands in Committee in his attempt to delete this clause, and I hope that we shall have support from all quarters of the House.
§ 9.21 p.m.
§ Mr. Michael Clark Hutchison (Edinburgh, South)
I should like to congratulate the Lord Advocate on bringing in the Bill and I hope that he will not give way over the 1885 Act. I am not one who wishes to pursue homosexuals but we should retain the power to deal with very disagreeable cases. I am in favour of having this provision in the Scottish criminal law and I think that the English made a great mistake when they abolished it. It is said that these things are done in private or that no one can see. What will we do about wife beating, which is also in private and which nobody sees? It is also said that the provision was enacted in 1885 and therefore is old. Does that matter? I am in favour of the Act of Union, which was a great deal older.
§ 9.22 p.m.
§ Mr. Leo Abse (Pontypool)
Having heard such vigorous condemnation of the Bill for which I was responsible, I cannot remain silent. I presume therefore to intervene in a debate relating to Scotland.
But the debate relates to all humanity. It relates to my people who will go to Scotland, whether they come from my constituency, from Wales, from England or anywhere else. Since, fortunately, Scotland is still a part of the United Kingdom, I cannot allow a reaffirmation of a law replete with humbug and hypocrisy in 1976.
A consolidation measure means what it says—that it wishes to consolidate the law, to reinforce it, to buttress it, to cement it—
§ The Lord Advocate indicated dissent.
§ Mr. Abse
The Lord Advocate should look at the Oxford English Dictionary before he shakes his head and see that the word does mean to cement. I do not have the modesty of my hon. Friend the Member for Edinburgh, Central (Mr. Cook) who said that he did not understand consolidation measures. Heaven help me, I have served on consolidation Committees. I repeat: such legislation is intended to reafirm the law, to consolidate it in the dictionary sense of buttressing and cementing it.
§ Mr. Robert Hughes
Since I was not in the House a decade ago when my hon. Friend introduced the Bill for which he is responsible, may I ask him why he did not include Scotland in the Bill?
§ Mr. Abse
It was not easy a decade ago to persuade everybody in the House of the rationale which is now generally accepted throughout Britain. Consequently, as a parliamentarian, I had no wish to provoke more trouble than I already had on my hands. That was the first reason, but it was not the only one. The other was that there is a wide difference between the law of Scotland and that relating to England and Wales. If that had not been the case, I should have been prepared even then to take on the backwoodsmen of Scotland, of whom I see there remain quite a number.
The reason was that there was an evidential rule in Scotland which indicated 150 —as I recall it at a moment's notice—that in the case of confessions, it needed corroboration before a case could be adjudicated with a guilty finding being brought in. A homosexual offence was a very difficult offence to prove already in England and Wales without having the confessions which, at that time, were obtained from those who fell into the hands of the law charged with this offence.
It was clear over a decade ago that in Scotland, because of the nature of the law, what was occurring in England and Wales was not being enforced there. I was agreeably surprised because I know of the progressiveness which is characteristic of Scottish legal affairs. I was pleased to see that a decade ago Scotland was well in advance of the law in England and Wales, and that in Northern Ireland, and was rarely having prosecutions for this offence.
It is bound, therefore, to be most dismaying to me chat whereas a decade ago Scotland was so much in advance, today, after a decade in which England and Wales have long ceased to have a law so barbaric and primitive as was formerly the law in this country, those whose destiny it is to be homosexual, whose fate it is to be denied the boons and blessings of family life, who are already estranged from the community and isolated, all those people—perhaps 1 million men in Britain—are to be made permanent outsiders. We altered that. I find it dismaying that the Lord Advocate comes along with a proposition that an 1885 Act should be so consolidated that those who commit offences of gross indecenecy will, despite what he may say, be stigmatised as criminals.
I understand the sensitivity of those homosexuals who are already denied so many blessings that come to those of us who have our children and families. I understand how alienated they can be. I understand, too, the great difficulties of trying to get a cohesive society. What-every may be the sexual patterns or behaviours of some, if we are to have a cohesive society, a society free of humbug and cant—of which we are having a pretty poor exhibition tonight—we must have a law that enables these estranged men not to be treated by the law as criminals, pariahs, but to be integrated in our society.
151 The Lord Advocate now makes his presumption from what he says is his position of neutrality. I do not think much of that position. At the time I was putting forward the 1967 Bill, the Home Secretary came off the neutral perch. The Attorney-General went into the Lobby, and the Home Secretary actively helped me. The overwhelming majority of the then Government showed that they were prepared to be identified with a social reform, a reform that was followed throughout Europe in the years that followed.
However, the Lord Advocate comes along with this curious neutral approach. Who is he? He is only a Lord Advocate. He says that he has decided not to prosecute. It is not this Parliament; not the legislature. At the Lord Advocate's whim, he is going to lay down, as has rightly been said, a general blanket ruling, and he says that in his discretion prosecution will not take place.
What is the utter hypocrisy and humbug that could bring the House of Commons to consolidate Acts and then give a firm assurance that they will not be implemented? What will the general public think about that? What sort of law is unenforceable law? The Lord Advocate is a splendid lawyer and a jurist of distinction. He knows that there is nothing worse than having unenforceable law, whether it is unenforceable because it is impracticable to enforce it or because the highest legal officers of the land are saying that they intend never to implement what is being carried through the House.
I believe that those who have made representations, those who are homosexual, and who say "Why should we be burdened with this barbaric Act?", are right to ask us why we should corroborate and reaffirm provisions of this kind.
I found the Lord Advocate's arguments on this occasion entirely lacking in logic and in humanity. He intervened with the question, "What good will it do if we throw Clause 7 out of the Bill?" I shall tell him. It will mean that people in Britain will realise that in Scotland there is at least a tentative step to bring in a more civilised law on sexuality. People are not prepared to put up with 152 something that has been repudiated by most of the civilised world.
The omission of this provision would not bring Scotland into disrepute, but would have the opposite effect. There is nothing distinctly Welsh, English or having the brand of any other nationality to the condition of homosexuality, and if we take action on these lines it will mean that the people of Britain will feel that they have a Parliament that understands. We cannot alter the formative influences which put people into this mould. Therefore, we must show that we do not lack sensitivity, compassion or humanity.
It has been said that this matter could be dealt with at another stage of the Bill. I hope that Scottish Members will see that action is taken at another stage. However, I hope that the Lord Advocate, rather than allowing the matter to be driven to a vote, will reconsider the matter.
I do not think that he will do himself personally or Parliament in general any good if it is seen that action has to be wrenched from him, instead of his deciding of his own volition that he is no longer prepared to continue this charade. Let him not act as previous Lord Advocates in other Governments have acted by not having the guts or the courage to ensure that barbaric provisions of this nature are not re-enacted. Let him not perpetuate this fake situation any longer. I was grateful for what was said by my hon. Friend the Member for Edinburgh, Central. I will continue to give his views all the support which I can mobilise on the next occasion that this matter comes before the House.
§ 9.34 p.m.
§ Mr. James Dempsey (Coatbridge and Airdrie)
I paid close attention to the Lord Advocate's remarks on this con solidation measure, but I should be grateful if he would give me some further guidance.
I gained the clear impression from what he said that this was a measure that sought to consolidate a number of Acts of Parliament. I gathered that even ambiguities could not be excluded from the consolidation process. That situation surprises me. I thought that if a consolidation measure was unclear it could be clarified and that, for example, bad grammar could be corrected.
153 However, the Lord Advocate gave the impression that the Goverment were being inflexible in re-enacting the previous Acts of Parliament which this Bill is about to consolidate. Does that apply to provisions which lay persons such as myself find difficult to understand?
Clause 4 says that any person who has an unlawful sexual association with a female aged between 13 and 16 is committing an offence. It goes on to say that it would be a defence if that person could prove that he had reasonable cause to believe that it was his wife with whom he was committing the act. I do not think that that makes any sense at all. I am not a legal man and I have no associations with the legal profession. Surely, if we are consolidating something, we should correct these wrong impressions.
I paid close attention to the speech of my hon. Friend the Member for Edinburgh, Central (Mr. Cook), who asked questions about Clause 2 and the man who fraudulently impersonated a husband and had a sexual relationship. I was thinking that he might stand a better chance of getting something—
§ Mr. Speaker
Order. This is very interesting but we cannot go into the details of the measures. We can discuss only the question of consolidation.
§ Mr. Dempsey
In Clause 14 we see that if an individual who has the care and custody of a young girl aged from 4 upwards allows her to frequent an immoral place—some den of iniquity—upon conviction he may be fined only £25. Is it not possible in this consolidation process to bring penalties into line with present-day values?
§ Mr. Speaker
Order. I am sorry to interrupt the hon. Gentleman again, but we cannot deal with the contents of the various Acts. We can discuss only whether they should be consolidated.
§ Mr. Dempsey
I thank you for that ruling, Mr. Speaker. I wish that you had been in the Chamber a bit earlier when we discussed homosexuality from A to Z. However, you are always kind and courteous to me and I accept your guidance. I merely ask the Lord Advocate 154 whether provision cannot be made to increase these penalties to take account of present-day values.
§ 9.33 p.m.
§ Mr. Norman Buchan (Renfrewshire, West)
I support the compelling argument put forward by my hon. Friend the Member for Coatbridge and Airdrie (Mr. Dempsey). The Lord Advocate has told us that this Bill is not consolidating the law on all sexual offences. Therefore it is plain that a judgment has been made as to which offences should be included. The activity we are discussing in Clause 7 is the only offence not related to heterosexual offences. There is, therefore, since we have avoided other examples of this kind, a reason for leaving this one out, too.
A number of the other clauses deal with offences involving an under-age person. The homosexuality clause does not deal with this. It is a different type of clause altogether. For these reasons it seems that there is a good case for the Lord Advocate to say that, since not all sexual offences are being brought under this umbrella, homosexuality ought also to be left out.
Secondly, it cannot be too strongly emphasised that not all the people of Scotland are lawyers. If the Government introduce a consolidation measure in such terms as these, it is subject to all the penalties of attitude which the hon. Member for Edinburgh, Pentlands (Mr. Rifkind) and my hon. Friend the Member for Edinburgh, Central (Mr. Cook) have described.
Thirdly, my right hon. and learned Friend asked us to look at this question in the light of the parliamentary situation—that is to say, of consolidation. He is now in the position of taking the voices of the House. Would it not be better for him to listen to those voices, raised from very varied quarters in the House, and to withdraw this provision in face of the basic arguments put to him? If he cannot do that because of the relationship between him and the Law Commission in the context of consolidation measures, can he not return to the Law Commission and ask it whether it would agree that it would be to the betterment of everyone if this provision were withdrawn?
§ 9.41 p.m.
§ The Lord Advocate
By leave of the House, Mr. Speaker, perhaps I may make a brief reply. I hope that I have not in this brief debate been guilty of any hypocrisy. I hope that I made my position clear and that I shall not be convicted of lack of humanity in this matter.
I shall sympathetically consider all the points that have been made, but the most significant, as I said earlier, is that consolidation does not prejudice reform but may, indeed, be a prelude to reform in that it may highlight areas of law which may be thought to need review. It is obvious that some of my hon. Friends feel strongly about this, but I am in the strait-jacket of consolidation procedure, and, sympathetic though I may be to some of these points on a personal basis, it is not in a consolidation Bill that these objectives stand to be sought and pursued.
§ Question put and agreed to.
§ Bill accordingly read a Second time.
§ Bill committed to a Committee of the whole House.—[Mr. James Hamilton.]
§ Committee tomorrow.