AMENDMENTS OF CRIMINAL PROCEDURE (SCOTLAND) ACT 1975". (Hansard, 13 July 1977)

§ Mr. Fairbairn
I am obliged to my right hon. and learned Friend. That makes the point. It is not a frivolous point. It is a very important point of draftsmanship and of principle. It is quite improper that an amendment to a Bill passed in 1976 should be back included in the schedule to a Bill passed in 1975 by an English Bill drafted in 1977. This is no way to legislate.
I note that, throughout our debates on this Bill, not only has the Scottish Law Officer competent to be here not been present but nor have the Scottish nationalists, who always make such a claim of their interest in the features of their own country. Not one of them has been here, and it is because of a lack of interest.
I urge seriously upon the Minister of State that this is extremely bad draftsmanship, that it is very bad practice, that it confuses the House and that it does not do justice to those who legislated a simple sexual offences Bill last year. It is a most improper procedure, and I hope that the Minister will explain how all this came to be done, why the Lord Advocate is not present, and why the law of Scotland is to be treated as a funny little bit of item trash in a Bill which does not deal with it.

§ Mr. John
Since the hon. and learned Member for Kinross and West Perthshire (Mr. Fairbairn) complained about the lack of explanation, perhaps at a later stage in my remarks I might be allowed to touch upon Amendment No. 150, which will give him the explanation that he seeks. But, first, it is right that I should deal with the new clauses.
My hon. Friend the Member for Pontypool (Mr. Abse) quoted some words of my noble Friend in the other place, and he will know that, when the matter was before the other place, soliciting by a man was in the category of offences triable only summarily. That meant a great diminution in the penalty, but it also meant that there was no right of trial. Over the subsequent period, it: was represented to us by many people that a right of trial was necessary because of the stigma which still attached to the crime and to conviction of the crime.
661 The problem was not one of the distribution of business. Of the 667 men tried for the offence in 1975, only 40 were tried in the Crown court. The remainder were tried in the magistrates' court. The choice before us was either to put it in the purely summary category, which meant lower penalties but no right to jury trial, or to put it in the "either way" category, which meant not only the right to trial but, for the most serious cases, a high maximum penalty. When we met those people who advocated this, those who supported making the offence triable either way indicated that this was a price which they were prepared to pay for having the right to jury trial. In making the offence triable either way we are meeting the main burden of complaint against the Bill which was that there was no right of trial by jury and that people felt that a stigma might be attached to them without that right.
3.30 a.m.
The Criminal Law Revision Committee is considering a general review of sexual offences. I believe that it might make recommendations that might affect what I have said. I prefer to await its report before acceding to what my hon. Friend the Member for Pontypool has said.
My hon. Friends the Members for Pontypool and for Ormskirk (Mr. Kilroy-Silk) raised the question of soliciting. At 30th June 1976 there were 201 prostitutes in prison or 0.4 per cent of the total prison population. My hon. Friend the Member for Ormskirk was right. This is where the Government have taken their stand. The working party to which my hon. Friend the Member for Pontypool referred said in its conclusion that imprisonment, we feel regretfully, is a necessary sanction. The working party said that before imprisonment could be imposed the defendant should have had four encounters with the law. It specified that they should be two cautions and two convictions. We must retain that sanction as a last resort. It is not used to the extent that my hon. Friend imagines, as the figures relating to the prison population show.
I turn to Amendment No. 150. This concerns the right that we have conceded in England and Wales of a jury trial for 662 soliciting by a man. It extends that provision to the law of Scotland so that there will be an equal right and a sense of justice.

§ Mr. Fairbairn
The Minister has got it wrong.

§ Mr. John
I hope that the hon. and learned Member for Kinross and West Perthshire will kindly allow me to finish. He has complained about the lack of any explanation but now he tries to intervene before I have begun. The hon. and learned Member says that I have got it wrong. I think that I am correct.
Deleting from the new schedule references to section 12 (1) (b) of the Sexual Offences (Scotland) Act 1976 has the desired effect of ensuring that the same mode of trial is secured for Scoltand. The hon and learned Member mentioned item 19. It refers to Schedule 1. The hon and learned Member has probably got that clear by now.
The hon. and learned Member was a member of the Committee and took part frequently in English debates. He took no exception to the absence of the Lord Advocate in Committee, despite the number of changes that were made to Scottish law. It is unfair to cavil at this stage at the absence of the Lord Advocate to deal with a matter which is within the purview of the Bill, is not out of step with other amendments and is designed to attach to the law of Scotland the same rights as are attached to the law of England and Wales. I hope that the House will approve the proposal.

Mr. Deputy Speaker
The hon. and learned Gentleman has exhausted his right to address the House on the new clause.

§ Mr. Fairbairn
On a point of order, Mr. Deputy Speaker. I did object in Committee to the absence of the Lord Advocate. What the Minister said was wrong.

Mr. Deputy Speaker
Whatever happened in a Committee is nothing to do with us here.

§ Mr. Abse
I listened with care to my hon. Friend the Minister of State, whose reply I found wholly unsatisfactory. He said that my right hon. Friend had agreed that the penalty of two years was too 663 high and should be reduced. It is true that this was part of a package, in which there was to be at the same time the end of trial by jury. It is extraordinary that my hon. Friend suggested that he had had representations in which he was told by some—whoever they may be that retaining the two years was a price they were prepared to pay in order to have the right to trial by jury. It is not they who are prepared to pay it. The price is paid by those who are imprisoned.
It is not possible credibly to come to the conclusion to which the original working party, the James Committee and the Home Office came, that three months is sufficient and then, when our gaols are packed, to say "The price you will pay for trial by jury is the opportunity to impose heavier sentences, which we really think are not necessary and which no other body has regarded as necessary." I find that unacceptable.
I did not expect any more from the right hon and learned Member for Wimbledon (Sir M. Havers) on the question of the women prostitutes. His squeamishness is apparent, as is the puritanical attitude of himself and those ladies who were accompanying him. Like most other hon. Members, I too, have inadvertently been accosted. It happened not long ago when my wife and daughter were walking behind me, coming out of a restaurant, and I had gone ahead to open my car door. I do not expect a wife and grownup daughter to have such a punitive attitude that they wish a woman to be imprisoned for approaching someone and, as in my case, being brushed aside. I think of a sad, tragic girl, bedraggled in the rain, and no doubt belonging to the category of drug addict or physically or mentally disabled. The attitude of the right hon. and learned Gentleman, who, having delivered a speech that was as short as it was inadequate, has left the Chamber, should not be given social sanction of the kind that he urged.
My hon. Friend the Minister said that not many women were involved. But the statistics show that over the past five years the number of women being convicted of street prostitution has increased considerably compared with the previous five-year period. That belies the contribution of the right hon. and learned Gentleman who seemed to think that the 664 permissive society would mean that there would not be so many such women.
The situation has altered, and if the right hon. and learned Gentleman will look at the statistics, he will find that a large number of these inadequate women are returning to the streets. By what the Minister says, there are not many, but if he takes the total of women prisoners he will find that in the last year for which I could get figures, more than 160 of these women were in prison—and that is an appreciable proportion, because they were the women who went directly to prison. The figure does not take account of those who went there indirectly for failure to pay fines imposed on them as prostitutes.
What are we to make of the fact that an appreciable proportion of women in prison are there for prostitution? Are we building a new Holloway to fill it with that sort of person? Why this constant ambivalence of men towards prostitutes? If they are not dramatising them in novels, they are antagonistic towards them because the only way of warding them off is by imprisoning them.
Objective assessments acknowledge that that is a useless way of dealing with women in great difficulty, being used by men, who then decide, with great pompousness, judging by the attitude of the hon. and learned Member speaking from the Opposition Front Bench, that one has to incarcerate them, even though the Home Office and everybody else, with the exception of the working party, as the Minister said, says that that should not be done.
The working party consisted mainly of senior police officers. While the views of the police are important, if the working party had been more representative and had included probation officers and social and after-care workers who have to carry the can after people have been sent to prison, it would not have wanted to continue the process of putting prostitutes in prison.
It is not in accordance with what I believe or have advocated nor with the way I opposed the street offences legislation which the right hon. and learned Gentleman opposite put before the House on many occasions. I opposed it then and I oppose its consequences now.
Although it is neither possible nor desirable to proceed to a Division, I am 665 not prepared to acquiesce in withdrawing the Clause.