ABOLITIONS, SAVINGS, TRANSITIONAL PROVISIONS, CONSEQUENTIAL AMEND MENT AND REPEALS (Hansard, 13 July 1977)

§ Mr. Mikardo
I beg to move Amendment No. 19, in page 4, line 36, leave out subsection (3) and insert— '(3) The offences of conspiring to corrupt public morals, conspiracy to outrage public decency, corruption of public morals, outraging public decency, are all hereby abolished.'. This matter was considerably discussed in Committee, although not precisely in these terms. The amendment that was discussed at that stage was sympathetically received by hon. Members on both sides of the Committee and carried considerable support. The amendment was then withdrawn, and doubtless that is why it has been selected for consideration today.
I noted that in an earlier debate on New Clause 3 the hon. and learned Member for Montgomery (Mr. Hooson), who speaks on the law in these matters and in any other matters with infinitely more authority than I can, argued, and seemed to carry the assent of the House, that it was inconsistent for the Government to move New Clause 3 and to resist the amendment.
We are here entering into matters that are largely of subjective opinion rather than of judgment. That has been said on more than one occasion. Mr. Roy Jenkins, when he was Home Secretary, as was quoted in Committee, told the House that indecency was a meaningless concept far too vague to be the test of criminal liability. It would almost seem that the present Home Secretary is seeking to do in this Bill what his predecessor would not have done. Moreover, what he is seeking to do appears to be contrary to the recommendations of the Law Commission.
677 There have been difficulties over the centuries in this branch of jurisprudence. Over and over again during the centuries the judges have made crimes of things that are not crimes by statute. The object of the amendment is to ensure that a crime is a crime only if the statute says that it is a crime. In that sense it is for the removal of doubt.
I suppose that I should make a long speech, and I could. I say that because we had evidence earlier this morning that the Government are prepared to make concessions that could be extremely damaging to those who make extremely long speeches, concessions that open the way to the return of Rachmanism.
If I do not succeed in convincing my hon. Friend's on the Government Front Bench by a speech in which there is more cogency and wit than volume, we shall have to give further consideration to how we conduct our proceedings on the remainder of the debate on the amendment and on the debates on the other amendments that are to come forward. I hope that it will not be necessary to weary the House in the way that some hon. Members on the Opposition Benches wearied the House earlier in order to get the Government to agree with me, but if need be it can be done.

§ Mr. John
The Government recognise that common law offences in respect of public morals and decency are unsatisfactory and ripe for abolition, but as the Law Commission said, they are ripe for abolition when statutory offences of a satisfactory nature are put in their place. That is why, for example, we put in a statutory provision to cover films during the period in which the Williams Committee is undertaking a fundamental review of the law and the statute law that the Law Commission did not look at completely.
I am entirely with my hon. Friend the Member for Bethnal Green and Bow (Mr. Mikardo) in wishing to get rid of the common law in this matter. But we wish to do so only when we are satisfied that the statutory basis that will replace it is as sound as we can make it. Frankly, there has been a great deal of criticism of the statutory provisions by many people. Therefore, we felt it right to set up a working party, a decision 678 which I believe commanded fairly widespread acceptance in the House.
I hope that my hon. Friend will allow the Williams Committee to proceed with its examination of the statute law upon the basis of an assurance that, when there are recommendations for a satisfactory statute law, it will be our intention to move to the position that he wants. If we pass the amendment in the absence of any statutory provision, I believe that we shall leave gaps in the law. That is evidenced by the fact that a number of the recommendations of the Law Commission are not included in the Bill.

§ Mr. Mikardo
In view of what my hon. Friend said, I beg to ask leave to withdraw the amendment.

§ Mr. Arthur Davidson
I beg to move Amendment No. 20, in page 5, line 13, leave out 'one year' and insert 'six months'.
The amendment to Clause 5 is, in effect, consequential on Amendment No. 65 to Clause 9, which deals with trespassing on the premises of foreign missions.
The amendment to Clause 9 makes two distinct changes, both of which are in accordance with undertakings given in Committee to my hon. Friend the Member for Barking (Miss Richardson). First, it removes the possibility of conviction on indictment with a maximum penalty of 12 months' imprisonment. The maximum penalty now will be six months' imprisonment on summary conviction. The Government consider that a higher penalty than that would be excessive for an offence that may be committed—my hon. Friend took great exception to this point—without any violence or threat of violence.
Secondly, the amendment makes it necessary to obtain the consent of the Attorney-General before a prosecution is brought for an offence under Clause 9. That, again, carries out an undertaking that I gave in Committee. I think that my hon. Friend will agree that the consent of the Attorney-General will go a long way to ensure that capricious or frivolous prosecutions are not brought.
In view of the possible international and public policy implications involved in the occupation of diplomatic premises, 679 this seems a sensible precaution. I hope that the amendment will have the approval of the House.

§ Mr. John
I beg to move Amendment No. 23, in page 5, line 29, at end insert— '(6A) Incitement and attempt to commit the offence of conspiracy (whether the conspiracy incited or attempted would be an offence at common law under section 1 above or any other enactment) shall cease to be offences.'. This amendment fulfils an undertaking given in Committee to the hon. and learned Member for Runcorn (Mr. Carlisle) who thought it desirable to make it clear beyond doubt that there should be no offence of attempting to conspire. We agreed at that time. That view commanded wide acceptance on both sides of the Committee. We make that clear beyond a peradventure by the amendment.