§ '(1) Subject to the provisions of this section, a homosexual act in private shall not be an offence provided that the parties consent thereto and have attained the age of twenty-one years.
§ (2) A male person who is suffering from mental deficiency which is of such a nature or degree that he is incapable of living an independent life or of guarding himself against serious exploitation cannot in law give any consent which, by virtue of subsection (1) above, would prevent a homosexual act from being an offence, but a person shall not be convicted on account of the incapacity of such a male person 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 male person to be suffering from such mental deficiency.
§ (3) Section 97 of the Mental Health (Scotland) Act 1960 (prohibition on men on the staff of a hospital, or otherwise having responsibility for mental patients, having sexual intercourse with women patients) shall have effect as if any reference therein to having unlawful sexual intercourse with a woman included a reference to committing a homosexual act
§ (5) In this section, "a homosexual act" means sodomy or an act of gross indecency by one male person with another male person.
§ (6) Subject to the provisions of subsection (2) above, it shall be an offence to commit or to be party to the commission of, or to procure or attempt to procure the commission of a homosexual act—
- (a) in public,
- (b) without the consent of any party to the act;
- (c) with a person under the age of twenty-one years; or
- (d) where the act is committed on board a United Kingdom merchant ship wherever it may be, by a male person who is a member of the crew of that ship with another male
284 person who is a member of the crew of that ship or any other United Kingdom merchant ship.
§ (7) In this section, "member of the crew" in relation to a ship, includes the master of the ship; "United Kingdom merchant ship" means a ship registered in the United Kingdom habitually used or used at the time of the alleged offence for the purposes of carrying passengers or goods for reward.
§ (8) It shall be an offence to procure or attempt to procure the commission of a homosexual act between two other male persons.
§ (9) From the commencement of this section a person who commits or is party to the commission of an offence under subsection (6) of subsection (8) above shall be liable on conviction on indictment to imprisonment for a term not exceeding two years or to a fine or to both and on summary conviction to imprisonment for a term not exceeding 3 months, or to a fine not exceeding the prescribed sum (within the meaning of section 289B of the 1975 Act).
§ (10) It shall be a defence to a charge of committing a homosexual act under subsection (6) (c) above that the person so charged being under the age of 24 years who had not previously been charged with like offence, had reasonable cause to believe that the other person was of or above the age of twenty-one years.
§ (11) A person who knowingly lives wholly or in part on the earnings of another from male prostitution or who solicits or importunes any male person for th purpose of procuring the commission of a homosexual act within the meaning of subsection (5) above shall be liable:
- (a) on summary conviction to imprisonment for a term not exceeding six months, or
- (b) on conviction on indictment to imprisonment for a term not exceeding two years.
§ (12) Premises shall be treated for the purposes of sections 13 and 14 of the Sexual Offences (Scotland) Act 1976 as a brothel if people resort to it for the purpose of homosexual acts within the meaning of subsection (5) above in circumstances in which resort thereto for heterosexual practices would have led to its being treated as a brothel for the purposes of those sections.
§ (13) No proceedings for an offence to which this subsection applies shall be commenced after the expiration of twelve months from the date on which that offence was committed. This subsection applies to:
- (a) the offences mentioned in subsections (6) and (8) above; and
- (b) any offence under subsection (11) above which consists of soliciting or importuning any male person for the purpose of procuring the commission of a homosexual act.'.—[Mr. Cook.]
§ Brought up, and read the First time.285
§ Mr. Deputy Speaker (Mr. Richard Crawshaw)
With this we may take amendment No. 131, in schedule 8, page 101, line 44, column 3, at beginning insert 'Section 7.'.
§ Mr. Cook
The effect of the new clause and the associated amendment will be to remove from the Sexual Offences (Scotland) Act 1976 the section that makes homosexual acts a criminal offence in Scotland. The objective of the clause is to end the absurd situation where what is accepted behaviour in one part of the United Kingdom remains a criminal offence in another part of the United Kingdom. The new clause is based on the Bill that was introduced by Lord Boothby in another place in 1977. In the course of its Committee stage that Bill became the object of a number of amendments that were moved by the then Labour Government and that were intended to tidy up the drafting of the Bill The Bill also received a substantial endorsement from their Lordships on Second Reading.
We can be reasonably confident that the drafting of the new clause is competent, because it received the attention of Government draftsmen at that time. I assure the House that this new clause is already acceptable to their Lordships, and if the House endorses it today we shall not witness a repetition of yesterday's unfortunate scene, when their Lordships rejected an amendment passed by this House and the roof promptly caved in on them.
The terms of the new clause are modest. I believe that if they prove controversial it will be because they do not go far enough, rather than because of what they attempt to do. I refer particularly to one detail of the new clause about which I have some reservations. In the new clause we have adopted the age of 21 as the age of consent. I have doubts whether 21 is an appropriate age of consent in this day and age.
In its report 25 years ago, the Wolfenden committee chose the age of 21 because it was the age of legal majority. Since then, the House, in its wisdom, has adopted the age of 18 as the age of legal majority, and on the same criterion it would seem appropriate to reconsider the age of consent in the new clause on the 286 same basis. However, I recognise that that would be a controversial move, and therefore I confine the new clause to the age of consent of 21, because I am anxious to present the House with a clause that will receive support.
The clause bears the names of hon. Members from all three major parties. I regret that the only party represented among Scottish Members of Parliament from which there has been no support for the clause is the Scottish National Party. I am pleased to see both representatives of that party in their place, and I hope to convert them in the remainder of my remarks.
We have tabled the clause because we firmly believe that what happens within the privacy of bedrooms is no concern of ours as Members of Parliament, perhaps mercifully. A minority of men, but a significant minority, is attracted only to other men. It is oppressive and impractical of Parliament to say to that large body of citizens that they must choose between lifelong continence or committing a criminal offence. That choice is unsatisfactory. It obliges many otherwise law-abiding citizens in all parts of the community to choose to commit a criminal offence.
The propositions are not particularly controversial. As far back as 1968 the General Assembly of the Church of Scotland went on record demanding the same change in the law. It is instructive to recall why the General Assembly called for the change. It recognised that so long as homosexual acts were a criminal offence homosexual men would inevitably be inhibited from coming forward and seeking the pastoral care of the Church.
I understand that the Minister may seek to rebut the new clause on the ground that since there are no prosecutions under the section that I am seeking to delete, no damage is done. However, the fact that no prosecutions are taking place does not mean that no damage arises from the fact that homosexuality is a criminal offence in Scotland. Hon. Members will be familiar with the recent case of the gardener-handyman who was dismissed by his employer on the specific ground that he was a homosexual. His subsequent appeal to an employment tribunal was dismissed on the ground that the decision of the employer was a reasonable one.
287 I do not propose to trench on the merits of that case, because it is subject to further appeal and is therefore sub judice, but two general truths emerge. First, no hon. Member could argue that the tribunal was not influenced, perhaps unconsciously, by the knowledge that homosexual acts in Scotland are criminal offences. It has reflected in its judgment the prejudice that is sustained by the present state of the law. Secondly, since that judgment there has been a campaign to end discrimination against homosexuals in employment and other fields. A month ago many hon. Members attended a meeting in this House addressed by the leaders of that campaign. It is illogical and impractical to mount a campaign against discrimination against homosexuals, in employment laws or whatever, so long as it is proscribed in our criminal statutes. We therefore tabled the new clause.
I hope that the clause will not be rebutted on the basis of the curious and dangerous constitutional argument that because the Government have decided by executive action that they will not implement the law there is therefore no urgency to change it. We debated the issue when the consolidated Sexual Offences Bill was before the House in 1976. The present Under-Secretary of State for Scotland made vigorous attacks on that argument. He said:The basis of my opposition to the clause is that it is totally wrong as a matter of basic constitutional principle that Parliament should be asked to approve a consolidation measure of an activity's continuing to be a criminal offence while at the same time the Lord Advocate informs the House that the Crown has not the slightest intention of treating such activity as a criminal offence … Parliament should not be asked to make a fool of itself or to stand on its head."— [Official Report, 3 November 1976; Vol. 918, c. 1571-2.]I am against Parliament being asked to stand on its head or any hon. Members being asked to stand on theirs. I therefore hope that if the hon. Gentleman is replying to the debate he will not stand on his head and reverse the arguments that he put forward when the House last debated the matter. I trust that he will not rebut the new clause on the basis of the arguments that he rejected in 1976.
§ It is ironic that we should debate the new clause on a day when the papers report in a critical vein the arrest by Soviet policemen of Western journalists who were covering a demonstration in favour of human rights for Russian homosexuals. The House is given to developing a strong line in criticising the neglect of human rights in the Soviet Union. Those criticisms are well deserved. However, in this instance the state of our law is no better than that in the Soviet Union. It would be more constructive to put our own house in order first. I therefore hope that the House will seize the opportunity to expunge from the statute book what has long remained an anomaly in Scottish law.
§ Mr. Martin Stevens (Fulham)
I am happy to catch your eye, Mr. Deputy Speaker, under any name that you care to select.
I support the new clause. It is a relief to be able to discuss such matters without the prurient winks and nudges that accompanied discussions of homosexuality, or even wearing suede shoes, when I was a boy. I hope that this modest little clause can be discussed not on the basis of whether, as individuals, we are pro, anti or indifferent to that sexual manifestation. Like many who have spent their lives in the Metropolis, I do not consider it to be of great interest what my friends do, provided that they do not make a nuisance of themselves. Many hon. Friends feel differently, and view such practices with horror and execration. However, what we are seeking to persuade the House to do should not be influenced by such personal feelings.
It is unacceptable to have one law for the rich and another for the poor; one law for the English and another for the Scottish. We are not debating the fact that one has to change one's sleeping car in Belfast. I accept that the Scottish legal system is different from ours, but this is more an argument about civil rights than about the traditions of a legal system. In any case, the legal system to which Scotland adheres is far 289 closer to the Code Napoleon than ours. That code accepted homosexual conduct in private between consenting people of all ages much sooner than ours. It is absurd that there has never been any legal inhibition on women behaving as they wish. Before the Sexual Offences Act 1967, people could say that they did not care what women did but that we must stop men from doing the same. At that time I used to say "I do not care what you do. You can make it a crime for women, or not a crime for men, but you cannot indefinitely carry on with this difference in responsibility between the two sexes." Today, 14 years later, when the rights and duties of men and women are even closer than they were then, I should have thought that the argument in favour of the clause was even stronger.
My purpose is twofold. First, I support the hon. Gentleman and assert that this is a non-party matter. Secondly, when we divide on the issue, I hope that hon. Members will not make their decision on the basis of their personal feelings or philsophy of life associated with homosexuality, the suffering and deprivation from which it may be said that some people suffer, or the unfairness involved. There will be other opportunities to discuss the ethics and morality of the subject. I hope that hon. Members will make up their minds simply on the basis that it is not equitable to permit a form of congenital conduct which may be legally permitted in certain clearly defined circumstances in England and yet, whether or not the Solicitor-General for Scotland acts, to make that same conduct a serious and disgraceful crime in Scotland. It is fair and reasonable, whatever our personal feelings, to accept the provisions of the clause.
§ Mr. David Steel (Roxburgh, Selkirk and Peebles)
I attached my name to this all-party clause, although with some reluctance on one point, to which I shall come in a moment. None the less, I hope that the House will pass it.
I remember our debates in the 1964-66 Parliament, when I came into the House, and again in the early stages of the 1966 Parliament, when the present statute for England and Wales was 290 passed, in which the position of Scotland was thoroughly debated. The atmosphere today has changed completely from the atmosphere then. I remember a conversation with the then sponsor of the Bill in 1965, Mr. Humphry Berkeley, in which I asked him why he proposed to cover only England and Wales. He was open about it. He said that the Bill was discussed on a Friday and that if he included Scotland in it most of the Scottish Members would stay to vote against it. Probably that was wise and sound judgment on his part. However, I am not sure that that is necessarily the case today.
As the hon. Member for Edinburgh, Central (Mr. Cook) said, for a start, the Church of Scotland, in common with many of the other Churches, certainly the Methodist Church and the Church of England, has since considerably changed its view on the moral issue behind the new clause. However, we should be aware that it was not a fine point of law which led Scotland to be excluded from the 1966 legislation in the first place.
I recall some of the rather ribald debates that we had on the Report stage of the 1965 Bill, when hon. Members moved amendments about sleeping cars and what happened when passengers reached Berwick. There was a great deal of hilarity on the subject. In the last election I came to the view that this was no longer a laughing matter. I came to it very sharply.
One of my constituency boundaries is the border between England and Scotland. In the election, in the unlikely atmosphere of the High Street of one of the towns of my constituency, where this is not normally an everyday topic of conversation, a young man accosted me in the course of a walkabout and said that he and his friend were homosexual and lived partly in my constituency and partly in England. He wanted to know what I was prepared to do about the state of the law in Scotland, as although their conduct was legal in England it was not so in Scotland. I said that I was sympathetic to the case for bringing the law into line.
At the same time, I repeated parrot-fashion the explanation given by successive holders of the office of Secretary of State and the Law Officers in Scotland, 291 that it was the administrative or executive policy not to prosecute for homosexual offences—which are still offences in Scots law—if they took place between consenting adults in private, and that therefore they had no grounds for anxiety. They gave me a compelling answer, that none the less this remained on the statute book. As the hon. Member for Edinburgh, Central indicated, this may well colour attitudes, for example, of society and employment tribunals, as in the case to which he referred. In addition, Law Officers and, for that matter, Secretaries of State for Scotland, come and go. It is not enough to rest the law, on a matter which affects individuals in this way, on the diktat of any one temporary holder of these offices.
§ Mr. Douglas Hogg (Grantham)
Does the right hon. Gentleman agree that the officer for the time being cannot bind his successors on a matter of policy of this kind and that we might well find that his successors take a different view and prosecute?
§ Mr. Steel
That is my point.
The two subjects are in no way aligned, except that they both involve moral as well as legal judgments. When I was piloting through the House my Private Member's Bill on abortion, I remember discussing with a Scottish gynaecologist the question whether the law should apply to Scotland. It had been the policy of the Lord Advocate and Solicitor-General for Scotland of the day not to prosecute in Scotland for abortions where they were carried out for medical reasons. The gynaecologist said firmly that we should create a positive statute law in Scotland. In his younger days he recalled a Lord Advocate, who had a particular view on abortion, writing—I cannot remember whether it was a specific letter to the gynaecologist or a circular, but that does not matter—to him, saying "The practice in which you are indulging is against the law and I must warn you to take account of this in your future practice." The next time that he had an abortion before him the gynaecologist telephoned the Crown Office and said "I have a patient waiting to come into the theatre and I wish to know whether I may proceed with the abortion." The reply given by the Crown Office was "That must remain a matter of judgment for you", to which he replied "Precisely". He said that it was 292 not good enough to leave the law to the individual whim of the Law Officers and that we should be declaratory. That is a good principle regardless of one's individual views on abortion, homosexuality or anything else. It is not satisfactory to leave the law in its present state.
I am sorry that the Solicitor-General for Scotland is not with us this afternoon. He answered a question from an Opposition Member 10 days ago in which he reiterated his policy. If I remember aright, he said that it was the policy of the Scottish Office and the Crown Office that prosecutions would not take place for homosexual conduct between consenting adults in private.
That immediately raises the question "What is an adult in Scots law?" I hope that whoever replies will answer that question. This is where I have my slight query about the new clause. I am not sure that in introducing the age of 21, which is the English law, we are not making the law more restrictive in Scotland. I should like to know how "adult" is defined. Is it defined as in the general law of Scotland, or is it taken as in the English law on this subject? The age of 21 is extremely difficult to defend, especially in Scotland, as we have a different law on marriage. If we are to say, as we do in the law of Scotland, that a man of 16 is considered responsible enough to marry and bring up a family without parental consent, it is even more ludicrous to say that we deem a man of 20 to be not capable of deciding with whom he wishes to go to bed.
There is a further inconsistency in the Government's position. As I understand it, the Scottish Office has just announced a small but welcome grant of public money for the work of a Scottish homosexual rights group. It would seem rather odd if the Government are giving a public grant to a body which is doing counselling work on a subject which remains criminal. That is an inconsistency that should be ironed out.
This is a modest new clause and on balance I support it, but I hope that we shall return to this subject in a more general way in future.
§ Mr. John Wheeler (Paddington)
I also support the new clause. It is extraordinary that in the last quarter of this century we should be debating this issue 293 with regard to Scotland. It seems only right and fair that the law which applies in England and Wales should apply also in Scotland. May hon. Members may ask why that should be so. I answer that by saying that this House is frequently concerned with human rights.
We frequently criticise other Governments for the way in which they treat their minorities. Surely it is right that in the United Kingdom the same laws relating to personal conduct should apply to everybody. The time is long overdue when the rights enjoyed by the homosexual minority in England and Wales should also be enjoyed in Scotland.
I need say little in support of what was said by the hon. Member for Edinburgh, Central (Mr. Cook). He is absolutely right. The new clause is simple and straightforward. It does not seek radically to change the situation. It seeks to apply the law in England and Wales to the kingdom of Scotland. I agree with the hon. Member that we might ask why the age of consent is not brought more into line with the age at which heterosexual behaviour is acceptable but that issue awaits a more general review of the law on sexual offences.
In the meantime, it is merely a matter of fairness and justice that this new clause should be accepted in relation to the law in Scotland.
§ Mr. Gregor Mackenzie (Rutherglen)
I may surprise some of my hon. Friends, and indeed some Conservative Members, by saying two things: first, I intend to support the new clause, eloquently moved by my hon. Friend the Member for Edinburgh, Central (Mr. Cook); secondly, I intend to make a short speech. It will probably be the shortest speech I have made in this place. That is for a good and simple reason. I sought advice and guidance on this matter from the only member of my family who knows anything about the law. He wrote six quarto sheets for me and I am bound to say that I had the greatest difficulty in making anything of them. That was not because of the handwriting. It was because I did not always understand the terms that were used.
I support the new clause because, like the Secretary of State and others, I am a firm believer in law and order. I believe 294 that if someone does not obey the law he should be brought to trial and punished. I cannot for the life of me understand how a Minister of the Crown can say that he will introduce a law and keep it on the statute book, with all the backing of the law of Scotland, but that no one will be prosecuted under it. If the law is the law, it should not be left to the discretion of the Lord Advocate, or whoever is responsible, to institute prosecutions of this kind.
In this quarter of the twentieth century many of us have moved a great deal further in this matter than I would have moved even 10 years ago. The reason for my present view is that I believe that if this law is to have respect it must be enforced. If it is not respected, it should be taken off the statute book. I believe in law enforcement. If the law is not enforced, it should be taken off the statute book. That is the advice that I strongly urge upon the Secretary of State and his colleagues.
§ Mr. Douglas Hogg
I support the right hon. Member for Rutherglen (Mr. MacKenzie) on this subject. It is objectionable in principle that the enforcement of prosecution for a criminal offence should be dependent upon the decision of a law officer for the time being. The enforcement of prosecutions for criminal offences should not be dependent upon the wishes of any individual. That is a matter for Parliament and no one else.
Following what was said by the right hon. Member for Roxburgh, Selkirk and Peebles (Mr. Steel), I believe that it is important that we should not allow criminal offences to be determined by individual law officers who hold office for the time being, not least because they cannot bind their successors. It is wrong that an offence is enforceable during the term of office of one law officer and not enforceable during the term of his successor. Those things are objectionable in principle.
Turning to the broader aspect of this measure, I entirely support the new clause. I have contrasted it carefully with the provisions of the Sexual Offences Act 1967. In all material respects it is the same. The House has, in relation to England and Wales, accepted that it is right that in private homosexual activities 295 between consenting adults should be lawful. That argument has already been accepted in England and Wales. Therefore, the argument prevails unless someone can bring forward a good reason to show why Scotland and Northern Ireland should be treated differently.
Of course, I appreciate that there are major differences between the legal systems of Scotland and England. However, I believe that on fundamental human rights—this is a human right of a kind—there should be parity. I can see no reason why people should have a lesser right in Scotland than they have in England and Wales. That being so I support the new clause and, if I might add, I hope that we shall introduce a measure that will apply to Northern Ireland in due course.
§ Mr. Alexander W. Lyon (York)
I may be speaking somewhat out of turn when I say it, but so far nobody has suggested that he is in favour of prosecuting consenting adults who commit homosexual acts in private in Scotland. There is, therefore, no division of opinion about the merits of the new clause. It may be that a different view will be reflected later.
That being the case, there is only the argument which my hon. Friend the Member for Edinburgh, Central (Mr. Cook) suggested the Government will put forward for rejecting the new clause. The Government's argument is that the law is not prosecuted at the moment in Scotland as a matter of executive act, and therefore it is unnecessary to change the law.
That is an untenable position as a continuing expression of the enforcement of law. It is not simply that there might be a change of Lord Advocate and, therefore, a change in principle of the outlook of the Lord Advocate. As I understand the position in Scotland, the Lord Advocate's advice need not be followed by the procurators fiscal, and sometimes they do not follow his advice. Indeed, the fiscals were carrying out this policy before the Lord Advocate first made the suggestion in the instructions that were sent out. It is therefore possible for a fiscal to take a different view even within the guidance laid down by the Lord Advocate.
296 It is wrong that the law should be administered differently in different parts of the country when we are discussing important personal conduct of this kind. I am talking not about the difference betwen England and Scotland but about different parts of Scotland. I accept the argument put forward by the Scottish National Party that Scotland has a law of its own and is entitled to take a different view about criminal penalties for particular conduct—that is, of course, the legal position—but I am a little reluctant to suggest that when we talk about personal human conduct of this kind, which bridges national boundaries, would be helpful—though I do not say that it would be right—if people who were moving between the two countries on a regular basis did not find themselves in breach of the law on one side of the border and outside the law on the other side. I accept that that might happen in certain circumstances. Obviously, it happens in marriage and divorce. It would be better if it did not. But I accept that the Scots are entitled to take their own view about this matter.
Where I disagree with the Scottish National Party—I am coming on to what may be sensitive ground—is whether even in Scotland there is a consensus for a criminal law against homosexual acts in private. I should think that opinion in Scotland is similar to that in England, which is overwhelmingly against making this kind of conduct a criminal offence.
If that be the case, what is left to the Secretary of State for Scotland? He does not believe in the merits of this argument. He rests upon this quibble whether we need to have a law that is not enforced. If that is the position, why can he not agree with the expressed wish of most hon. Members who have spoken in the debate, namely, that the law of Scotland and England in this respect ought to be brought together? If so, perhaps he would say so now and we could pass on to the next new clause.
§ Mr. Leo Abse (Pontypool)
I have a feeling of dé jà vu when I listen to this debate. There is no novelty in it. There is no novelty in the point at issue—namely, whether it is right for the law to be administered at the caprice of a Lord Advocate or according to a defined rule of law.
297 From the time that the Wolfenden report recommended that we should end the criminality of homosexual offences committed in private to the time after I had attempted two or three times and others, including Humphry Berkeley, had attempted to put this law on the statute book on not a few occasions, the Government of the day came forward with the suggestion and, indeed, the practice of attempting to temper the law by administrative means and to avoid prosecutions except when cases were explicitly defined. The idea that we could shrink from having to deal with a substantive law was followed in England for nearly a decade, until in the end, with the help of 100 of my colleagues in the House, I managed to put the Sexual Offences Act on the statute book.
There is something highly repugnant in continuing to have debates of this kind, because they will continue until the law is changed. They will go on as long as we have a law on the statute book which, at the whim of a Lord Advocate, is not enforced. In those circumstances, people are bound to be provoked into changing the law. Indeed, they will show contempt for the law and insist that if there is a law it must be enforced and that if there is not every man has a right to know his position.
In my judgment, there are far more important views. Anyone who has seen the predicament of the homosexual in Britain generally cannot doubt that many have come to terms with their predeliction but that others, not surprisingly, find that the problem sometimes causes them great difficulties.
§ Life is not easily lived for anyone. If there is the extra dimension of having to shoulder the predicament of homosexuality in a society which is hostile to it and expresses within its law that those who practise it are pariahs and outside the community, the difficulties grow. Therefore, is it surprising that again and again we see a paranoic element running through some sections of the homosexual community? It is a paranoic mood which means that these people are not as well integrated into the wider society as some would wish. When we passed the Sexual Offences Act 1967, the great hope was that we would bring them into the com- 298 munity and would leave them alone if they practised their predilection privately and with discretion.
§ Is not extraordinary that in Moscow this week three photographers—British among others—have been arrested because a protest has been made by an Italian homosexual about the way that the homosexuality law is administered in the Soviet Union? We do not expect the Soviet Union to recognise human rights or to be sensitive to the needs of minorities. But what is the position in Scotland? Is Edinburgh to emulate Moscow? Is the Lord Advocate to become the ayatollah of Scotland? What sentence does it attract in Scotland? I do not know. I know what it attracted in England and Wales. Buggery was punishable with a sentence of life imprisonment until the 1967 Act. Who does the Lord Advocate think he is—the Lord himself?—to hold over the issue of life or death, according to his whim, upon men who have a perfect right to live their lives with their own difficulties provided that they do not impinge in any offensive way on the wider community?
§ Even this miserable new clause—it is a miserable clause—carries over all the compromises and blemishes which I had to put into the 1967 legislation to get it through. The right hon. Member for Roxburgh, Selkirk and Peebles (Mr. Steel) was right when he cited the reason why Humphry Berkeley's Act did not apply to Scotland. That was why my Act did not apply to Scotland. I had enough trouble on my hands without taking on the Scots. But there is a different mood about, and it has been expressed by my hon. Friend the Member for Edinburgh, Central (Mr. Cook). Change has come in Scotland, too. The Scots found that the passing of the 1967 Act did not convert England and Wales into a Sodom and Gomorrah. Cardiff is no longer regarded as a possible sin centre for the whole world.
§ It is nonsense to suggest that Scotland dare not change the law. What are these prissy Lord Advocates so concerned about? Surely Scotland has had enough successive Lord Advocates put forward one excuse or another in proceedings on consolidated Bills, when many of us fought together, that it was not a suitable occasion. What is the matter with them? Do they not have confidence in their own 299 heterosexuality? Are they frightened that, unless a measure on the statute book says that homosexuality is criminal, suddenly the whole of Scotland will plunge into a new Sodom? Such rubbish is intolerable. I would not be surprised if an hon. Member were astonished that we should be debating this issue in the 1980s. It does no credit, and shows no respect or deference, to the law. It will do no credit to the Lord Advocate if he has to retain such an untenable position.
§ We have an opportunity to get rid of some of the worst aspects. As the right hon. Member for Roxburgh, Selkirk and Peebles said, the measure does not get rid of the problem of the age of consent. When I was responsible for my Bill, no one in England and Wales could sign an enforceable contract if he were under 21. A person who was under 21 could not buy a house. The law was subsequently altered, and it became possible to do so at 18.
§ In putting forward the new clause, my hon. Friend the Member for Edinburgh, Central is being far too accommodating to the prissy prudes who apparently oppose it. I shall support him, but he is being far too accommodating to those who insist that the English and Welsh law should remain the same. He has included the risible clause that I was compelled to insert to deal with merchant shipping. I assume that the House understands the position.
§ When my Bill was enacted, I was told that if we did not do something to protect the merchant seamen of Britain, and that if we did not ensure that buggery and any such offence in the Royal Navy or the Merchant Navy remained a criminal offence that attracted heinous penalties, the whole British fleet would be ruined. Winston Churchill once made some remarks about buggery and the Navy, but I shall not repeat them. In order to meet the folly of the day, I had to insert a stupid clause. I had to appease shipowners and some members of the National Union of Seamen. A man could go aboard a ship or a cruise boat and have an affair with a passenger. However, he would attract a heavy sentence of imprisonment if he had an affair with a fellow seaman. Having extrapolated the wisdom of my measure, and also its foolishness, my hon. Friend has given this weak little clause to the Lord Advocate.300
§ I hope that Scotland will not make itself the laughing stock of Europe. Since my Bill was enacted the whole of Western Europe has followed it in one way or another. If this situation were to remain it would be an affront to civil rights and an abuse of the Lord Advocate's position. The present law is an insult to thousands of our fellow citizens who commit no fault but who are born or are predisposed to a particular disposition. It is high time that a clause of this character was put on the statute book.
§ Mr. John MacKay (Argyll)
My view of this general subject can be summed up by the words "What the eye does not see, the heart does not grieve over." I take that view, and it is embodied in the law of Scotland. I also believe that that was the intention of the House when it changed the law in England so that one not only obeyed the law as practised but obeyed it as written. In Scotland, the phrase is obeyed but the law has not been changed.
My eye increasingly sees the present situation and my heart increasingly grieves over it. Many people in Scotland and England share that view. I hope that the hon. Member for Pontypool (Mr. Abse) will not mind my saying that his speech illustrated the way in which the gay society campaigns to convince us that if we are normal and heterosexual we are queer. Its members try to convince us that they are the normal gay people. Indeed, the very use of the word "gay" is an affront to the meaning of the word, and to ordinary, normal people.
I find that I am out of step in Scotland, and even more so in England. I feel that I am not being fashionable, and that I am decidedly odd if I am heterosexual. I get that feeling a lot. Television increasingly pushes homosexuality down my throat and down the throats of my children. A fortnight ago, on a Saturday afternoon, I walked along one of London's streets with my children. We turned a corner, and saw a band of people advocating gay rights and pushing that point of view. That happened in the streets of our capital city.
As I have said, I believe that what the eye does not see the heart does not grieve over. However, the gay society is increasingly forcing itself on us. The 301 speech of the hon. Member for Ponty-pool illustrated that. If anything, he destroyed the case made by his hon. Friend the Member for Edinburgh, Central (Mr. Cook). He showed that this is just the beginning. The streets of our cities and television programmes demonstrate that a campaign is beginning to encourage more people to take such a route, and to imply that the other route is wrong.
§ Mr. Douglas Hogg
I should like to understand what my hon. Friend is suggesting. Is he suggesting rigorous enforcement of the existing law?
§ Mr. MacKay
My hon. Friend should listen. If he had listened to the beginning of my speech he would know that I said that I believe that what the eye did not see the heart did not grieve over. That is the situation in Scotland, and I believe that it should remain so. I do not believe that, at a time of a pro-the-gay society campaign, we should change the law in Scotland. The law should be left as it is.
§ Mr. Alexander W. Lyon rose—
§ Mr. MacKay
We accept that people are born like that, and that it is wrong to persecute them. Equally, we accept that it is not right that they should campaign to the effect that the rest of us should treat the gay society as a superior form of society. I want my children to watch television and to go down Victoria Street on a Saturday afternoon without having such matters thrust down their throats.
A new clause that contains many lines is not the appropriate way to deal with this subject. If there is to be a change in the law it should be considered line by line in Committee. I shall certainly seek to divide the House on this clause.
§ Mr. Donald Dewar (Glasgow, Garscadden)
I must confess that I had no idea that life in Victoria Street, Oban was as exciting as that. However, we learn something every day from our debates. Although I am on the side of my hon. Friend the Member for Pontypool (Mr. Abse). I thought that his speech was unnecessarily emotive. It has been repaid doubly in kind. I should like to return to duller but more relevant arguments.
I strongly believe that a Member of Parliament should not make personal moral judgments about the conduct of other 302 people. On occasions, moral judgments must be codified in the criminal law. However, that is only so in extreme and unusual situations, in which there is a total consensus about the essential danger of a line of conduct. I was interested in what my hon. Friend the Member for York (Mr. Lyon) said. He doubted whether there was a consensus in Scotland. He thought that there might be a consensus against the present law. I am not interested in a consensus against the present law. The onus of proof lies the other way. If a law says that certain private acts that do not impinge on or hurt other people are so offensive that they should be made criminal offences, it must be supported by an almost unanimous public consensus. It is clear that that is not the position in Scotland, or in any other part of the United Kingdom.
Whatever my views about homosexuality and homosexual practices, and how attractive or unattractive I may find them, I do not believe that they are a suitable subject to attract the sanctions of the criminal law. If something is to be the object of censure, in terms of the criminal law, it ought, by definition, to attract the sanctions. I accept the arguments of a number of hon. Members that to have a law on the statute book which, as an act of deliberate administrative policy, has not been used for many years—there have been no prosecutions in the last 10 years—seems totally nonsensical and positively damaging to the law itself. To say that whatever the circumstances and however flagrant the nominal abuse the sanctions of the law will never be invoked is wrong. We should put the situation right and bring the law into line with current social practice. It should be taken out of the ambit of the criminal code.
§ 5 pm
§ The hon. Member for Argyll (Mr. MacKay) said with great eloquence and, no doubt, sincerity that he objected to the gay rights movement—he was the first hon. Member to use the word "gay"—campaigning. No doubt many hon. Members get tired of campaigns of one sort or another. I suggest to the hon. Member gently that one of the reasons why the gay rights movement feels that it has to campaign in areas such as Scotland is that it feels that it is under the threat of the sanction of the criminal law.303
§ If one insists on nominally saying "Although we are not going to move against you, we will keep the sword hanging over your head and keep you under the threat of the criminal law, and what you are doing is so abhorrent that it is illegal", one is encouraging people to adopt a campaigning frame of mind. If I were in that ludicrous legal limbo to which we have consigned the gay community I would be in a strong campaigning mood myself. There is no reason why we should not do the necessary deed and get rid of this criminal offence from the statute book.
§ I have heard the argument in the corridors and the Lobbies that this Bill is not appropriate for the purpose and that hon. Members should not have popped in the new clause at this late stage of major legislation. I do not sympathise with that view. I welcome the fact that clearly there will be a free vote. I do not know how Ministers individually will vote. I have had some private indications, but I do not know whether there is an unofficial Whip for Ministers. For the House as a whole, there is a free vote. It seems appropriate, rather than waiting for private Members' legislation, with all the difficulties of the ballot and the chance of a Scot, who wants to take up this cause against competing causes, winning a high place, that we should take this opportunity.
§ As long as we continue this strange position of having a criminal law that is not enforced we set up all sorts of tensions, prejudices and difficulties for those who find themselves in this position. I do not want to talk about blackmail in the direct sense, but there are pressures, and those in the gay community feel themselves driven by those pressures. I hope that the House takes a simple stand and repeals this criminal offence.
§ I was interested in the remarks of the right hon. Member for Roxburgh, Selkirk and Peebles (Mr. Steel). When the Minister replies he will presumably indicate his personal view rather than issuing instructions to his cohorts on the Conservative Benches. He will perhaps say a word about ministerial policy if the new clause were successful. There is an interesting area involving those aged between 18 and 21 who may carry out homosexual practices in private. At the moment, they are exempt from prosecution by executive 304 and administrative fiat. They will not benefit from the new clause because exemption starts at 21. It might be helpful if the Minister would indicate whether he intends, as I hope he will, should the new clause be passed, to continue the administrative proposals for those who fall into the gap between 18 and 21.
§ Mr. Michael Ancram (Edinburgh, South)
The hon. Gentleman seems to be arguing against himself. I thought that this was the administrative action which he felt was the reason for putting down the new clause.
§ Mr. Dewar
I see the force of what the hon. Gentleman says. I believe that I am, to a limited extent, having my cake and eating it. Like the right hon. Member for Roxburgh, Selkirk and Peebles, I should have preferred to specify the age of 18. It would have been neater and more logical in this whole area of Scottish law. We do not have that situation. In all honesty, I have to plead for an exception until such time as we can tidy up the law.
I have spoken in this debate largely because there have been references to the fact that Scots have had a reactionary view in this matter and have not been forward in giving their opinion. I believe that there has been a considerable change in the climate of opinion in Scotland. I hope that it will be reflected in the Lobbies by my Scottish colleagues.
§ Mr. Ancram
I had not intended to speak, but the House should take cognisance of the way in which the debate has developed. The speech of the hon. Member for Glasgow, Garscadden (Mr. Dewar) highlights the principle. The hon. Gentleman, at the beginning of his speech, and a number of other Opposition Members, stated that the reason for wanting to change the law is, that they did not believe that individual rights should be protected by administrative action, as happens at present. Yet, because they realise that the new clause will cause greater damage to human rights among a certain category of people in Scotland, the hon. Member for Garscadden says that he hopes that the Lord Advocate will continue to exercise that adminstrative action. In that last remark the hon. Gentleman admits that protection is afforded to people by the administrative action of the Executive and the 305 Crown Office. It is precisely that administrative action that is valuable and has been a principle of the law of Scotland for so long.
I hope that the House will not accept English lawyers telling us what should be the law of Scotland. I hope that the House will recognise that Scotland has its own legal system. It has its principles. This is one of the principles upon which we have depended for a long time—
§ Mr. Cook
The hon. Gentleman will accept that I am a Scotsman, though not a lawyer. He will also accept that his hon. Friend the Member for Edinburgh, Pentlands (Mr. Rifkind) is both a Scotsman and a lawyer. If he reads speeches that we both made in 1976 he will see that we attacked the procedure and practice that, by executive action, one can set aside a particular law on the ground, echoed by his hon. Friend, who is both a Scotsman and a lawyer, that there is no principle in Scottish law that entitles the Lord Advocate to set aside a whole class of offences by his own decision.
§ Mr. Ancram
And yet, if I may say so, the hon. Member for Garscadden was asking the Government for an assurance that this would be done for the group aged between 18 and 21. I rest my case on that fact. I, too, will be dividing the House on this issue.
§ Mr. Bruce Millan (Glasgow, Craigton)
Although I am speaking from the Front Bench I should make clear, at least to people outside if not to hon. Members, that the vote on the new clause is a free vote, certainly on this side of the House, and, I assume, on the Government side. I am speaking for myself. My views, I believe, are shared by a majority of Opposition Members.
It is a pity that the Bill introduced by my hon. Friend the Member for Ponty-pool (Mr. Abse) did not extend to Scotland in the first place. I voted for my hon. Friend's Bill. I would have voted for it if it had applied to Scotland. The reasons why it did not apply to Scotland had little to do with the merits of the subject, although I do not take the view that the law of Scotland and the law of England should necessarily be the same in these matters. That is a matter of judgment, but there are a number of 306 areas in which the law of England and the law of Scotland differ. That has been so in the past and it is still the case. Sometimes the law of Scotland has been more liberal than that of England, and that is not a bad thing. My view is that, on the merits of the case, the original Act should have been extended to Scotland in the first place, and for that reason I shall vote for the new clause.
The clause is drafted to make the law of Scotland the same as that of England. Although the law of England may not be completely satisfactory on this matter, I think that it is sensible that the new clause should be drafted in this way. I do not accept the argument that the Bill is not an appropriate vehicle for such a reform, and I certainly do not accept that it is undesirable intrinsically that a matter of this sort should not arise on the Report stage.
§ Mr. Barry Henderson (Fife, East)
I understood that a version of the Bill was introduced by the right hon. Member and his hon. Friends in the last Parliament. If this kind of clause is appropriate to this kind of Bill, why was it not in his Bill?
§ Mr. Millan
There has never been an appropriate or proper opportunity for the House to debate the position in Scotland, either in a Private Member's Bill or in any other way. There have been attempts to raise this matter on a consolidated Bill, but I do not think that that is an appropriate way to change the law.
However, I do not want to go into those arguments now. We have a clause before us now and we should make a decision about it. Any suggestion from any quarter that this is not an appropriate occasion to make such a decision is simply avoiding the question.
§ Mr. Henderson
I am sorry to interrupt again, but I am genuinely anxious to establish the facts clearly in my mind because I have a great deal of sympathy with the new clause. The Labour Government took a criminal justice Bill right through Committee stage and a clause of this kind was not introduced then. I want to know why it was not done then and why it should be done now.
§ Mr. Millan
First, the Criminal Justice (Scotland) Bill in the last Parliament did 307 not get as far as this one. But that is not the answer. The answer is that on these matters, for good or for ill, successive Governments have taken the view that the initiative should lie with Members and not with Governments.
My purely personal view is that that is not a desirable way to proceed. I believe that Governments should be much more courageous in dealing with these matters—not on the basis of party whipping but on the basis of giving the House an opportunity to reach a decision on important matters. That is a personal view. The fact is that successive Governments have taken the view that these matters should lie within the initiative of Members, and that is precisely what has happened here. I am not complaining that the Government have not put this clause in their Criminal Justice (Scotland) Bill. I would not expect them to do so. But, equally, I do not accept that this is not an appropriate opportunity for the House to make a decision. Any suggestion that it is not is simply dodging the question.
§ The position in Scotland is unsatisfactory because the law says one thing, but by administrative means and by using the discretion available to the Crown Office and the Lord Advocate, there are no prosecutions. There are historic reasons for this resting on the law of corroboration, but it goes beyond that. As a matter of public policy, successive Lords Advocate have not prosecuted this offence—as it still is in Scotland—for a number of years. I consider that to be highly unsatisfactory.
§ I am all in favour of the Crown Office and the Lord Advocate having a certain amount of discretion in prosecution policy; that is perfectly sensible and reasonable. But to say that, regardless of the circumstances, there is an offence still on the statute book that will not be prosecuted goes well beyond any legitimate discretion of any Lord Advocate. That is highly unsatisfactory and the matter should be regularised. The way to do that is to vote for the new clause, and I hope very much that that is what the House will do tonight.
§ The Secretary of State for Scotland (Mr. George Younger)
I entirely agree with the right hon. Member for Glasgow, Craigton (Mr. Millan) that this is a 308 matter that normally has been dealt with on the grounds of conscience and conviction, and that the Government should not lay down any views. Therefore, speaking for the Government, I do not propose to express a view either way on the merits of the clause itself. This is a matter that should be the subject of a free vote and I make it clear that on the Government side of the House my right hon. and hon. Friends will be entirely free to vote as they wish.
Perhaps I should spell out a little of the factual background, as a number of questions have been raised and it is best to get it on the record. The Sexual Offences Act 1967, which was piloted through the House by the hon. Member for Pontypool (Mr. Abse), did not extend to Scotland. The reasons for that are not altogether clear, but suffice it to say that it did not. In mentioning this fact during the progress of that Bill the hon. Member said that there was rather less need for change in Scotland at that time than there was in England and Wales, because of the practice of successive Lords Advocate. He also mentioned the possibility of Scottish public opinion being somewhat different from English public opinion. That was a legitimate point. It has been suggested today that public opinion has changed in the interval, but I would not express a view on that.
§ Mr. Abse
There was a third reason—the evidential requirements in Scotland were very different from those of England. The fact that one needed corroboration in Scotland meant that there were far fewer prosecutions. Most convictions in England and Wales came as a result of confessions. There were other reasons why I was persuaded that it was politic not to proceed, but they were all very bad reasons.
§ Mr. Younger
The hon. Member is very candid, and that is a valid point.
The other point is that I do not adduce as an argument that it is necessary for the law of Scotland and the law of England to be identical at all times. I do not say that there is not some advantage in having similar laws—of course there is. But it is not part of my argument that the law of Scotland and England must always be the same, or that we must move to make it the same.
309 This clause is perhaps not the ideal form in which the reform could be made. It is merely a carbon copy of an English Act passed some time ago, when attitudes were, perhaps, a little different. However, I accept that the promoters have done this for a perfectly good purpose—that of getting this matter discussed on the basis of a measure that has already been passed for England and Wales. I make no criticism of the clause but merely record that it is not perfect, and probably not the measure that we would enact if we had a chance to do so properly.
§ Mr. Cook
In my opening speech I referred to the fact that the new clause was indeed modelled on part of a previous Bill. But it was modelled on a previous Bill of Lord Boothby which was introduced in another place in 1977, and to which a number of amendments were moved by a previous Scottish Secretary following consultations with the draftsmen. Those amendments were intended to ensure that the Bill was in line with Scottish law. If the Secretary of State has any particular criticism and thinks that the new clause is defective I should like to hear of it. So far as I am aware we are proposing a competent measure which has received the attention of the parliamentary draftsmen in the past.
§ Mr. Younger
I did not say and I do not say that it is defective. I do not believe that it is defective. I believe that it is not ideal. Certainly, the hon. Member for Pontypool thinks that it is not ideal.
I do not rest my case on the argument that successive Lords Advocate have declared that their intention is not to prosecute consenting adults who indulge in homosexual practices in private, and have carried out that intention. Some argue that it is not necessary to change the law because in practice such activity is not prosecuted as a criminal offence. I do not adduce that as an argument for not making a change tonight. The House should not weigh that argument too heavily.
§ Mr. Younger
I was just coming to that. The position in Scotland is different from that in England and Wales. In Scotland the Lord Advocate is the authority for prosecuting. He issues instructions to procurators fiscal. Such instructions are not known to have been disobeyed. Where the Lord Advocate wishes, he exercises without question the right to prosecute in person instead of the procurator fiscal. That emphasises his role as the source of prosecution in the Scottish system.
Several right hon. and hon. Members referred to the definition of "adult". The new clause repeats the English definition of adulthood which, in this connection, is 21 years of age. I confirm that that is the practice which is followed by the Lord Advocate. If he were considering a case of this type and one of the persons involved was under 21 he would treat the case as if it involved somebody who was not an adult. Adulthood is achieved at 21 in the English statute and it is the age which is used in practice in Scotland. Any case which occurs in the interim period between any decision which might be taken tonight and the Bill becoming an Act would be dealt with as it is now.
§ Mr. David Steel
I am grateful for that explanation, because it is the first time that the House has heard it. Will the Secretary of State confirm that it means that the doctrine pursued by the Law Officers is not a Scots law doctrine but simply puts into administrative practice English statute law?
§ Mr. Younger
The definition of adulthood is difficult and complex. Different ages are used for different purposes.
My purpose is not to express a view on the principle. I have a personal and private view and I shall exercise it as I think fit. However, I must put one further view on behalf of the Government. I hope that hon. Members will bear it in mind before they vote. I refer to a matter which has not been properly aired. Hon. Members must ask "Is this the way to pass important Scottlish legislation?" Whichever way they lean, hon. Members should bear that question in mind. They should ask whether on any other issue they would be prepared to pass something so important with as little discussion as this measure will receive, 311 That is a serious point, which must be considered. I put it no stronger. I am not making any criticism of the hon. Member for Edinburgh, Central (Mr. Cook).
§ Mr. Younger
I am sorry, but I must develop the argument. The hon. Gentleman may then see where it leads. He can then ask me questions. The hon. Gentleman should do me the courtesy of listening to the trend of my argument first.
The new clause is of considerable importance. Most hon. Members who have spoken have taken a strong view on the main issue. Most hon. Members have expressed a strong preference for the new clause as it affects homosexuals. I understand that and make no comment. However, the subject causes strong feelings and opinions. People feel strongly about it. They are either strongly in favour of it or strongly against it. It is a strange fact that this evening there have been almost no representations against the new clause.
We often pass measures about which people feel strongly. When we do that the measure goes through an elaborate series of parliamentary occasions when the issues can be aired. Plenty of time is given for representations to be made by bodies that are involved and others who feel strongly.
§ Mr. Younger
This matter is worthy of genuine consideration. I say to the hon. Member for Hamilton (Mr. Robertson), who keeps interrupting, that I have not expressed my view on the main issue. Hon. Members should not assume anything either way. I am trying to put a parliamentary point of great importance.
§ Mr. Norman Buchan (Renfrewshire, West)
It would be more honest if the Secretary of State gave his view.
§ Mr. Younger
That is an unfair remark. Some day perhaps the hon. Gentleman and I can have a talk and I shall tell him my view. I am entitled to be heard on an important parliamentary point and I shall be heard.
312 When passing important legislation which affects many people Parliament must convince the people involved that it has given the public sufficient chance to make their views known. It is no criticism of the hon. Member for Edinburgh, Central to say that the public have not had that chance. They have not had the chance because the new clause was tabled on Report after the measure had been through another place.
§ Mr. Younger
It is not the hon. Gentleman's fault and I have made that clear. I hope that he will regard what I am saying as a genuine argument which is not connected with the main issue in his new clause. If the House agrees to the new clause there will be only one other opportunity for discussion before it becomes law. That will be in the House of Lords.
§ Mr. Younger
With respect to the hon. Gentleman, it will not. It will go to another place, where it cannot be amended, and will either be passed or rejected. All I am saying—and I have not expressed my personal view—is that we shall be passing a measure about which many people in Scotland feel strongly. They will be able to say afterwards "That was passed without our being given a chance to express our views about it or to make representations about it."
Therefore, all I am saying is that the House, mindful of its reputation, of its duty to represent people in the country, should think hard and long before it passes something so important without giving adequate time or opportunity for those whom we represent to make their views known.
§ Mr. Robert Hughes
The Secretary of State is postulating the case as though at no time in the past year, two years, three years or four years had there been any discussion about the position of the law in Scotland in relation to homo-sexualily. He is really saying that the House should not exercise its democratic right on an issue on which there has been great discussion, but that the Lord Advocate, with no public discussion, with no authority, without any debate, is right 313 to take that view. Either the right hon. Gentleman is wrong or we are wrong. He cannot postulate the view that it is wrong to discuss such an issue, which has been part of public debate for many a long year.
§ Mr. Younger
All that I am asking the House to do is to take this matter into consideration. The question was last discussed in Parliament in 1977, when Lord Boothby introduced the Sexual Offences (Scotland) Bill in the Lords. It was discussed then and was substantially amended in Committee. That was about three and half years ago.
That may be satisfactory. Hon. Members may think that to have such a discussion in another place three and a half years ago is adequate discussion for a measure to go through. My experienece of the Scottish Grand Committee over more than 15 years is not that it takes the view that because something was discussed in extenso, even last year, it can be passed on the nod this year. That is not a characteristic of the Committee, but it may be that there are new forces at work and that it will be the case from now on.
§ Mr. Buchan
While saying that he is not prepared to give his own views, the right hon. Gentleman is giving a fairly clear direction to some of his hon. Friends that they should reject the clause on the technical ground that it has not been fully discussed. To introduce it in Committee, which was the only opportunity, would not have been particularly proper; we should have been told that there was a completely new principle, involving free votes and everything else, being introduced in Committee. The clause has been introduced on the Floor of the House, on Report. It can be debated for as long as hon. Members wish. The fact that hon. Members on one side have not come in is their responsibility. The clause has had a full discussion and could have had a fuller discussion if hon. Members had wished. There has been no deprivation of opportunity.
Secondly, as my hon. Friend the Member for Aberdeen, North (Mr. Hughes) said, the clause has been the subject of discussion—and strong discussion—in a Scottish context for a long time.
314 Thirdly, there will be an opportunity for the other place to make its comments on the clause, to pass it or reject it. These are full parliamentary opportunities, certainly opportunities much more open than the kind of things that can happen frequently with a Private Member's Bill or a Ten-Minute Bill. The right hon. Gentleman is badly misdirecting the House in his position as Secretary of State for Scotland.
§ Mr. Younger
The hon. Gentleman weakens what he wishes to say by overstating it. All that I am trying to do—
§ Mr. Younger
—is to ask hon. Members, including the hon. Gentleman, to bear in mind what I have said before they vote. I know the hon. Gentleman well enough to know that he will do his best to vote according to his conscience, and he will no doubt bear this point in mind. That is all that I am asking him to do. I believe that it is a genuine parliamentary point that we should all consider carefully.
§ Mr. Robert Hughes
I wish to intervene on the question of discussion. I think that the present Lord Advocate is the fourth Lord Advocate who has stated that there will be no public prosecution. He may be more than the fourth, but certainly within my recollection he is the fourth. One must assume that the Lord Advocate took that view as a result of some discussion, some debate, or on a point of principle. If it is good enough for him to take that point of view on the question of discussion, and it is not a mere personal whim—I do not believe that it is—that has meant successive Lords Advocate taking this view. If he has taken it as a result of informed discussion and debate, taking into account not just circumstances of the law and circumstances within St. Andrew's House, but public opinion and debate in Scotland, it is a bit much for the Secretary of State to argue that there is a serious point about lack of discussion within the House or elsewhere.
§ Mr. Younger
I shall not go deeply into that question. The hon. Gentleman is making a totally different point. What the Lord Advocate does or does not do has no relevance to my argument. All 315 that I have been saying is that we are passing legislation which many people in Scotland will feel very strongly about, one way or the other, with far too little discussion and debate.
§ Mr. Dick Douglas (Dunfermline)
Like the right hon. Gentleman, I am trying to make up my mind on the issue. He surely cannot argue that insufficient time has been given to the people of Scotland and elsewhere to discuss the issue, so that Parliament may take lack of discussion into consideration when evaluating what the law should be, and at the same time argue that the Lord Advocate is correct, in the absence of the same discussion, to pronounce on what the law will be in actuality.
§ Mr. Younger
That is a complete distortion. The Lord Advocate is carrying out his statutory function of prosecuting or not prosecuting. Incidentally, the right hon. Member for Craigton, who made some trenchant criticisms, including by implication criticisms of his own colleague, the then Lord Advocate, was for a number of years in a position in which he could have put all of that right if he had wanted to.
I reiterate that the Government take no view either way. It is a matter of moral issue that should be decided by the House on an entirely free vote. My right hon. and hon. Friends and I will be deciding it individually, according to our own consciences, and shall be glad to work with whateyer decision the House takes.
I hope that the House will bear in mind the points that I have made in advising it on how it should address itself to making this vote.
§ Mr. James Dempsey (Coatbridge and Airdrie)
I am interested in the right hon. Gentleman's point about consultation. Have any Scottish bodies passed opinions on the subject to the right hon. Gentleman? For example, have the Convention of Scottish Local Authorities, our social works departments, our Churches and our social organisations expressed any opinions? If the Secretary of State can guide me in this respect, I shall be grateful.
§ Mr. Younger
I am grateful to the hon. Gentleman for that intervention. The 316 position is that—I stress that this is no one's fault—the new clause was tabled only a few days ago, and no one living in Scotland has had an opportunity, because of lack of time and nothing else, to make the sort of representations that we receive on all sorts of Bills. That is the only point that I was making. I hope that the House will bear it in mind.
§ Mr. Cook
I previously told the House that I was tired of having my amendments rebutted by Ministers who said that they were defective. I find it both frustrating and galling that on the one occasion when the Minister has confirmed that my new clause is not defective he has gone on to say "But it is not ideal". I shall pull my socks up and bend my mind to the matter in future, and attempt to table amendments that are not merely not defective but are ideal.
However, the ideal is often the enemy of progress. While given a blank sheet and a pen to write my own legislation I might not have come up with this clause, I have tried to come up with a new clause that would maximise support and seek to be a consensus provision. I think that I have done that, and the House should support it.
The Secretary of State sought to rebut the new clause by addressing himself to a question that was so extraordinary that I wrote it down exactly as he spoke it. He asked "Is this the way to pass important Scottish legislation?" The answer is that it is indeed the way. There is no other way of passing important Scottish legislation. I do not suppose that the right hon. Gentleman suggests that the Bill is not important Scottish legislation.
The Secretary of State made an even more remarkable deduction in support of his argument. He said that it was a "strange fact" that in the debate there had not been much opposition to my new clause. He appeared to deduce from that that he ought to recommend the House to oppose the new clause.
The right hon. Gentleman cannot maintain that there has been inadequate debate tonight. The debate has gone on for about two hours. It has been open-ended and any Member with strong views, or, indeed, weak views, could have intervened. The House would not wish me to encourage any hon. Member to do so, but 317 anyone may speak, even after I have concluded. There has been ample opportunity for any hon. Member to take part in the debate.
I also rebut the Secretary of State's argument that this is too late a stage at which to tackle an important issue. Was the right hon. Gentleman suggesting that when a Bill has been through another place before coming here we should not, as a general principle, attach to it important new clauses on Report? If so, I warn him that many hon. Members, not only on the Opposition side, would reject that as a general principle.
§ Mr. Douglas Hogg
I am sympathetic to the new clause and I shall support it, but I should like to know how the hon. Gentleman answers the point that, because the new clause has been introduced at such a late stage—and that involves no criticism of him—bodies, associations and Churches in Scotland have not had sufficient time to make their views known to hon. Members.
§ Mr. Cook
The position of the Church of Scotland is plain and has been on record since the General Assembly of 1968. That is another reason why I find it difficult to accept the Secretary of State's arguments.
The matter has been well chewed over by various organisations. I am not aware of COSLA having discussed the issue, but it was discussed by the General Assembly of the Church of Scotland for several years running and finally resolved, in favour of reform, in 1968. I am not aware that the Church of Scotland has resiled from that position.
When the Bill came to the House I had discussions with many hon. Members about whether it would be more appropriate to raise the matter in Committee or on Report. I do not think that I am breaking any confidence if I say that I consulted one of the Ministers on the team handling the Bill. The unanimous view of those whom I consulted was that it would be more appropriate to raise the issue on the Floor of the House, because the House would then have an opportunity to reach a decision in principle, reflecting the views of the whole House and not merely the party political composition of a Committee.
§ Mr. Alexander W. Lyon
Is not the answer to any such criticism that for many years the Lord Advocate has adopted the policy of not prosecuting, and the Secretary of State has not supplied a list of people or organisations who have complained to the Lord Advocate that he is not implementing a law that they want implemented?
§ Mr. Cook
My hon. Friend takes me on to a point on which I shall conclude. There is nothing short of organised hypocrisy in a system under which Government after Government tell us that they will not implement the law but simultaneously resist any attempt to change the law. That is not a system which the House should support. The House builds principles on the rule of law and it is not sufficient for the Government to say that the state of the law does not matter because they will give undertakings not to implement it. That cannot be tolerated.
To those who have expressed concern that we are attempting to harmonise Scottish law with that of England I should point out that that is not the main reason why I tabled the new clause. It was tabled because the present law is oppressive of many Scots. It is an unreasonable oppression, which the House should lift from them. We have the opportunity to do it, and I advise the House to take that opportunity.
§ Mr. Peter Fraser (South Angus)
Will the hon. Gentleman answer the question raised by the right hon. Member for Roxburgh, Selkirk and Peebles (Mr. Steel) and the hon. Member for Glasgow, Garscadden (Mr. Dewar)? It concerns those aged between 18 and 21 who would ordinarily be described as adults. The new clause includes an age limit of 21. Does the hon. Gentleman feel that the Lord Advocate should prosecute in cases involving people aged between 18 and 21?
§ Mr. Cook
The position of those aged between 18 and 21 will be the same after the new clause is put on the statute book as it is at present. Anyone indulging in an act with such a person is guilty of an offence and would be guilty of an offence after the new clause gets on to the statute book. I understood the Secretary of State to say that the Lord Advocate uses 319 the age of 21 as a benchmark in determining whether an offence has been committed with a minor. There will be no difference in Crown Office practice when the new clause is on the statute book.
I understand that the Crown Office and the procurator fiscals' offices take the view, though they may not formally admit to it, that when a person is between 18 and 21 it may be difficult to secure a conviction, because it would be open to the defence to claim that the accused had reasonable grounds for believing that the other person was over 21. Whatever age is adopted as the age of consent, there will always be a gap between that and the age at which an offence is brought to court. That will
§ continue to be the position after the new clause is on the statute book.
§ However, that is a detailed matter, to which another place will be able to address itself. I believe that we should address ourselves to the issue of principle, and I hope that the House will accept that this modest reform would lift oppression and repression from a number of Scots citizens who are otherwise law-abiding people playing a full part in the community and who are entitled to the same rights as other members of that community.
§ Question put, That the clause be read a Second time:—
§ The House divided: Ayes 203, Noes 80.321
|Smith, Cyril (Rochdale)||Temple-Morris, Peter||Welsh, Michael|
|Smith, Rt Hon J. (North Lanarkshire)||Thomas, Dafydd (Merioneth)||Wheeler, John|
|Snape, Peter||Thomas, Mike (Newcastle East)||White, Frank R. (Bury & Radcliffe)|
|Soley, Clive||Thomas, Dr Roger (Carmarthen)||White, James (Glasgow, Pollok)|
|Spearing, Nigel||Thome, Stan (Preston South)||Wickenden, Keith|
|Stainton, Keith||Tilley, John||Wigley, Dafydd|
|Stallard, A. W.||Tinn, James||Winnick, David|
|Steel, Rt Hon David||Townsend, Cyril D. (Bexleyheath)||Woodall, Alec|
|Stevens, Martin||Varley, Rt Hon Eric G.||Woolmer, Kenneth|
|Stoddart, David||Wainwright, Edwin (Dearne Valley)||Young, David (Bolton East)|
|Stott, Roger||Wainwright, Richard (Colne Valley)|
|Strang, Gavin||Waldegrave, Hon William||TELLERS FOR THE AYES|
|Straw, Jack||Walker, Rt Hon Harold (Doncaster)||Mr. Martin O'Neil and|
|Taylor, Mrs Ann (Bolton West)||Walker-Smith, Rt Hon Sir Derek||Mr. Norman Buchan.|
|Alison, Michael||Joseph, Rt Hon Sir Keith||Page, Richard (SW Hertfordshire)|
|Bendall, Vivian||Kaberry, Sir Donald||Pollock, Alexander|
|Benyon, W.||Kellett-Bowman, Mrs Elaine||Rifklnd, Malcolm|
|Blackburn, John||Kershaw, Anthony||Roberts, Michael (Cardiff NW)|
|Boscawen, Hon Robert||Lee, John||Robinson, Peter (Belfast East)|
|Bright, Graham||Loveridge, John||Shaw, Michael (Scarborough)|
|Browne, John (Winchester)||Lyell, Nicholas||Speed, Keith|
|Campbell, Ian||Macfarlane, Neil||Speller, Tony|
|Clark, Hon Alan (Plymouth, Sutton)||Macmillan, Rt Hon M. (Farnham)||Stewart, Rt Hon Donald (W Isles)|
|Clark, Sir William (Croydon South)||McNair-Wilson, Patrick (New Forest)||Stradling Thomas, J.|
|Clegg, Sir Walter||McQuade, John||Taylor, Teddy (Southend East)|
|Cockeram, Eric||Marlow, Tony||Thornton, Malcolm|
|Corrie, John||Mates, Michael||Townend, John (Bridlington)|
|Costain, Sir Albert||Maude, Rt Hon Angus||Trippier, David|
|Dempsey, James||Mawby, Ray||Viggers, Peter|
|Douglas-Hamilton, Lord James||Mills, Peter (West Devon)||Waddington, David|
|Dunn, Robert (Dartford)||Mitchell, David (Basingstoke)||Wakeham, John|
|Eden, Rt Hon Sir John||Moate, Roger||Wall, Patrick|
|Elliott, Sir William||Monro, Hector||Ward, John|
|Fairgrieve, Russell||Morrison, Hon Peter (City of Chester)||Watson, John|
|Fell, Anthony||Mudd, David||Wells, Bowen (Hert'rd & Stev'nage)|
|Fletcher, Alexander (Edinburgh N)||Murphy, Christopher||Wilson, Gordon (Dundee East)|
|Gardiner, George (Reigate)||Myles, David||Wolfson, Mark|
|Goodhew, Victor||Neale, Gerrard||Younger, Rt Hon George|
|Gray, Hamish||Needham, Richard|
|Griffiths, Peter (Portsmouth N)||Nelson, Anthony||TELLERS FOR THE NOES:|
|Harrison, Rt Hon Walter||Neubert, Michael||Mr. John MacKay and|
|Hurd, Hon Douglas||Page, Rt Hon Sir Graham||Mr. Michael Ancram.|
§ Question accordingly agreed to.
§ Clause read a Second time, and added to the Bill.