§ '1. A person is guilty of an offence if he intentionally engages in sexual activity in a public place or in a lavatory to which the public or a section of the public has or is permitted to have access, whether on payment or otherwise, which he knows or ought to have known was likely to cause harassment, distress, alarm or offence to any other person and which causes or has caused harassment, distress, alarm or offence to any other person.
§ 2. It is a defence for the accused person to prove—
- (a) that he had no reason to believe that there was any person within sight or hearing who was likely to be caused harassment, distress, alarm or offence; and
- (b) that his conduct was reasonable.
§ 3. A constable may arrest a person without warrant if—
- (a) he engages in sexual activity which the constable warns him to stop; and
- (b) he engages in further sexual activity immediately or shortly after the warning.
§ 4 A person guilty of an offence under this section is liable on summary conviction to imprisonment not exceeding six months or a fine not exceeding level 3 of the standard scale or both.
§ 5. In this section "sexual" is as defined in section 79—[Dr. Evan Harris.]
§ Brought up, and read the First time.
Mr. Deputy Speaker
With this it will be convenient to discuss the following: Government amendments Nos. 50 and 51.
Amendment No. 194, in page 34, line 18, leave out clause 66.
Amendment No. 147, in page 34, line 20 [Clause 661, after 'lavatory', insert 'or shower cubicle'.
Government amendments Nos. 85 and 86.
§ Dr. Harris
This is an important debate because there are real problems with the drafting of clause 66, which amendment No. 194 would delete and new clause 10 would replace. It is important and habitual to set out that, like others who have spoken on the Bill, I am opposed to sexual acts in public and to sexual acts in lavatories. One need not labour the point that they are distasteful—to say the least—offensive, distressing and alarming to people. However, I should like to explain why the new clause is a better way of achieving what we are seeking. I shall then show how the Government's approach, unlike the new clause, fails to implement the recommendations of "Setting the Boundaries" or the intention behind the White Paper, and does not address concerns raised about the extent of the proposal.
The first problem with the clause is that it is too narrow in its geography because it relates only to public lavatories. My hon. Friends the Members for Mid-Dorset and North Poole (Mrs. Brooke) and for Romsey (Sandra Gidley) have also tabled an amendment to demonstrate that the clause is too narrow. A consequence of the narrowness of the clause is that the measure is indirectly discriminatory against men who have sex with men, including gay men but not just men 604 who regard themselves as gay. That is what we are talking about in terms of public lavatories; men who have sex with men.
§ Mr. Grieve
I can Assure the hon. Gentleman that if he read the Committee Hansard, he would see that that is not the case. The examples I cited there included the misuse of public lavatories in various buildings for the purposes of heterosexual activity. I can assure him that the proposal is gender neutral.
§ Dr. Harris
As phrased, it is gender neutral but that is not its impact because of the frequency with which the offence takes place. I have read Hansard and am aware of the case that the hon. Gentleman adduced involving sex between a man and a woman in the toilets of a court. It was not clear whether they were lawyers or not. If we study the history of prosecutions of this sort of activity, we see that there were always more complaints, prosecutions and convictions against men. As a consequence of that indirect discrimination and the disproportionate impact on men who have sex with men, the Bill fails one test—to be non-discriminatory in its impact as well as its wording.
§ Sandra Gidley
My hon. Friend is over-egging the pudding with regard to the proposal having too great an impact on men who have sex with men. The simple fact is that it is easier for men to go into a toilet together than it is for a man and a woman. It is a more common offence—not a greater or lesser offence—because it is easier. There is no sinister intent to criminalise gay men.
§ Dr. Harris
My hon. Friend misunderstands my point. The clause does not deal with places where men and women have sex together in public, such as in parks, lover's lanes, on trains and on top of buses. [Interruption.] Hon. Members may be suggesting their own favourites. The clause is restricted to public lavatories, and my hon. Friend makes my point; that is where men go—wrongly, in my view—to have sex with other men, but it is not where men and women go to have sex in public together. That is self-evident and—as I said at the outset—the clause is too narrow in that it includes only public lavatories and does its best to exclude from the offence sex between men and women in public places. That is the key point. As a consequence, the clause fails to meet the test of the Bill—that it should be non-discriminatory—and may give cause for redress under the Human Rights Act because of that discrimination.
The second problem is that the clause as worded is discriminatory in its effect on gay men in their defences, compared with the equivalent defences that might be available to a heterosexual couple charged, as they would need to be, under public order legislation. Public order legislation deals with the need to avoid depraving public morals and with offending, alarming or distressing people, so clearly someone has to make a complaint and someone must be a victim of the offensive behaviour. The wording of clause 66 does not require that that offence, distress, alarm or fear be caused, so the defences available to people caught under it are fewer than those available to heterosexual people; or, indeed, people of the same sex caught in other places. That is unfair and unreasonable.
605 I believe that, as drafted, the clause would catch people who were not engaging in sexual activity. The clause defines an activity as sexualif a reasonable person would, in all the circumstances but regardless of any person's purpose"—the purpose of the people concerned—consider it to be sexual.If two men were seen leaving a toilet cubicle together, a court might consider it a reasonable assumption that they had engaged in sexual activity, which would be sufficient under the clause to convict, even if they were doing drugs or whatever. Surely we do not propose to enact a law that does that.
The proposal recreates a victimless crime. We have gone through decades of gross indecency and buggery laws, which—where there was consent—were victimless crimes. The clause would recreate that as there is no provision for anyone needing to be distressed or alarmed. The new clause proposes that it should be an offence if someone is distressed, alarmed or afeared by such action. The history of the victimless crime and its disproportionate effect on gay men was set out by the hon. Member for Rhondda (Mr. Bryant) earlier, and part of the reason for "Setting the Boundaries", the White Paper and the Bill was to get away from the time when victimless crimes, particularly those of which gay men are convicted, were commonplace.
§ Mr. Grieve
Does the hon. Gentleman not consider that if a public lavatory is regularly misused for sexual purposes, it ceases to be a victimless crime; not because people are not present when the activity happens, but because, as a result, the use of the lavatory for legitimate purposes becomes impossible?
§ Dr. Harris
On that basis, the hon. Gentleman should support the new clause, which makes it clear that that would still be an offence in a public lavatory, because one could say that it would never be reasonable for someone to consider that such activity was not likely to distress or alarm anybody. I shall deal with that when I talk about the new clause in more detail. I am prepared to make common cause with the hon. Gentleman to make that an offence, but it is not right that the definition should apply exclusively Lo public lavatories.
Clause 66 reopens the possibility of entrapment. There is nothing to prevent entrapment; indeed, there is every likelihood that it will lead to an increase in convictions involving entrapment, when the police may go looking for someone willing to have sex, or to expose themselves for the purposes of sexual activity. The wording of the Bill means that the entrapper would not need to be distressed, alarmed or afeared—as someone who was "asking for it", and seeking to provoke the activity, would generally not be—so entrapment would reappear.
As well as entrapment by the police there would again be scope for blackmail to take place, even when no distress or alarm had been caused to anyone. It is the job of modern sexual offences law to avoid as far as possible allowing someone to provoke an offence for the 606 purposes either of blackmail or of securing an easy conviction.
In contrast, the new clause covers more public places, without the drawback in the Government's first attempt, which caused difficulty because it was regarded as extending even to secluded garden areas, because they were outwith the dwelling that was initially excluded. The new clause makes it clear that the provision would also apply to behaviour in other public places that a personknows or ought to have known was likely to cause harassment, distress, alarm or offence to any other person",and where the behaviour provokes a complaint andcauses or has caused harassment, distress, alarm or offence to any other person.The new clause would cover other areas. If it is the Government's intention to reclaim public lavatories for the use of the public without the distress referred to by the hon. Gentleman, I support that, but the provision should apply to commons, parks and heaths as well. The Government have failed to make it do that. We now have what may be a once-in-a-generation opportunity to tackle the issue, and I do not understand why the Government do not feel that parks, heaths and commons are not suitable for reclaiming.
The new clause requires a victim and a complaint, but the complainant could be a policeman. If two people were engaging in sexual activity in a public lavatory or other public place, a policeman could be the person who was offended. However, the wording of the new clause does not mean that anyone engaging in sexual activity in a very secluded place—such as a wood, or, indeed, their own back garden—would be liable to be convicted. That is appropriate, and strikes the right balance.
We have to remember the Bill's context, which was based on the Home Office report "Setting the Boundaries". The report's basic set of assumptions were thatany application of the criminal law must be fair, necessary and proportionate";thatthe criminal law should not discriminate unnecessarily between men and women nor between those of different sexual orientation";and thatthe law should not intrude on consensual sexual behaviour between those over the age of consent without good cause".
In the summary of the report, section 0.21 says:We thought it important that the law should be able to deal with problems caused by inappropriate sexual behaviour in public places, including public toilets. We recommend:a new public order offence to enable the law to deal with sexual behaviour that a person knew or should have known was likely to cause distress, alarm or offence to others in a public place.607 Chapter 8 of the report goes into some detail about that, and paragraph 8.4.2 and 3 says:some public facilities are extensively used for sexual purposes, and the law needs to be able to deal with this problem as part of wider powers to deal with sexual activity in public places … The common law offence of outraging public decency includes 'all open lewdness, grossly scandalous behaviour, and whatever openly outrages decency or is offensive and disgusting"—to someone, presumably—or injurious to public morals by tending to corrupt the mind and destroy the law of decency, morality and good order'''.Someone therefore has to have their morals depraved—although recent case law does not require that their morals be actually depraved, so long as they are in a position where that could take place.
Paragraph 8.4.4 points out that the Wolfenden committee argued thatcriminal law should apply to all sexual behaviour in public and not in particular to same sex behaviour.Paragraph 8.4.6 says:The law should be able to tackle these public order/decency issues whether they relate to heterosexual or same sex activity. Finally, we thought it "unnecessary and disproportionate to prohibit all sexual activity in public.
This was a Home Office review, not necessarily the Government's own views, but the Government set out their view in the White Paper "Protecting the Public". I want the Government to accept that my new clause would bring them back to their original correct intention, because chapter 6.77 of that White Paper says:We will also be introducing a new public order offence, specifically targeted at specified sexual acts that take place in public. The new offence of Sexual behaviour in a public place will send out a strong signal of our intention to protect people from being unwilling witnesses"—at that stage the Government thought that there had to be a witness—to overtly sexual behaviour that most people consider should take place in private. It will be in addition to, and not a replacement for, existing public order offences. However, it is not our intention to interfere in everyday behaviour in public that does not cause offence to the vast majority of people such as kissing or cuddling".I hope that the Government will recognise that the new clause is more closely related to that intention than is the clause that was given to us by the House of Lords, even as amended in Committee.
On entrapment, a letter from Stonewall to the Minister dated 24 October states:It would be very regressive indeed if the result of this clause was a return to practices such as entrapment, particularly when there are far more pressing matters for the police to be dealing with".Stonewall states clearly that it opposes sexual activity in public lavatories, but it recognises the danger of entrapment.
I would say that the complaints that we hear are about the use of public toilets exclusively by men having sex with men—almost to the exclusion of other people being able to use them at all—but it is not surprising that there should be more complaints about that, because the culture of gay men having sex, especially men who are married and therefore do not recognise themselves as gay, is a culture of furtive experiences.
608 Another reason why it is not surprising that there are more complaints about that activity is homophobia, and people's reaction to men kissing in public—and, indeed, on the television—which raises far more complaints than the sight of men and women of the same age, with the same degree of consent and the same depth of relationship, kissing. There is a differential acceptance of public displays of affection, and, therefore a different acceptance of public displays of sexual activity. That is wrong, because there should be no discrimination. People find homosexual acts offensive in a way that they do not find heterosexual acts offensive.
The very fact that disproportionate offence is caused by homosexual acts should warn us of the pitfalls of going down a path that leads to a predominantly gay—only offence. A low threshold for distress or alarm—or likely distress or alarm may be appropriate under the new clause, but there is no threshold at all for distress, alarm, fear or offence under clause 66 as it stands.
Clause 66 is inadequate in many ways. For those of us who want a specific provision banning sexual activity in public places, but which is not directed only and specifically against gay men, the new clause is the way to go. If the Minister is willing, I am prepared to explore ways to tighten it further. For example, subsection (2) of the new clause, which provides for the defence of a person's having reasonable belief that they were unlikely to be causing offence, need not apply to a public lavatory. That might be a way to ensure that the unacceptability of sex in public lavatories is made clear. On that basis, I hope that the Minister and other Members recognise the merits of new clause10.
§ 8 pm
§ Mr. Grieve
I am sorry that the hon. Member for Oxford, West and Abingdon (Dr. Harris) is dissatisfied with the way in which the Bill has been amended in relation to public lavatories. This matter took up quite a lot of time in Committee and has obviously done so in the House of Lords as well. I am grateful to the Government for accepting the Lords amendment, which they amended further themselves. We have arrived at a sensible outcome, and I am sorry that the hon. Gentleman is dissatisfied with it. The simple position is that public lavatories are not a proper place for sexual activity—full stop. It does not matter whether somebody notices what is going on or not; in reality, it is most unlikely that any prosecution will be brought unless somebody complains about the state the public lavatory has got into as a result of improper use. The hon. Gentleman should stop worrying about this matter and accept that the Bill as drafted is perfectly sensible.
I turn briefly to the Government amendments in this group, which I welcome. The Minister has taken on hoard all the points made in Committee, including that relating to uncles and nephews and the definition of prohibited relations_ hips; I am extremely grateful for that. I particularly welcome the fact that, as a result of the debate in Committee, the word "structure" has been removed from clause 69 and replaced with "place". That sensible amendment will provide a greater degree of protection from the activities of voyeurs for those who 609 are legitimately in an enclosed space, and have no reason to believe that they will be seen. I am grateful to the Minister for those amendments.
§ Sandra Gidley
I rise to speak to amendment No. 147, which is a slightly tongue-in-cheek attempt to show that clause 66 as it stands is flawed. As my hon. Friend the Member for Oxford, West and Abingdon (Dr. Harris) pointed out, we are very hung up about the particular environment of a public lavatory. There are other places, such as showers on camp sites, to which the public have access, but apparently there is no problem with such structures: the door can be closed and there is no problem with people engaging i n any sort of sexual activity.
I agree with my hon. Friend the Member for Oxford, West and Abingdon, in that the Government seem to want to single out toilets, for a reason that I cannot quite understand. I agree with those who say that public toilets are not the place to have sex—they should be used for the purpose for which they are designed—but the subtext of some of our debates in Committee suggests that this issue involves discrimination against gay men. I do not want to pass legislation that discriminates in any way, but I must admit that I am struggling to understand that argument. Perhaps that is because I am not a gay man, but I cannot see in what way the provision discriminates, given that it applies to heterosexual sex in toilets, as well as to gay sex.
§ Mr. Bryant
I am sorry that the hon. Lady entices me to my feet. I had resolved not to say any more on this matter, having failed dismally to persuade the hon. Member for Beaconsfield (Mr. Grieve) of my argument in Committee; indeed, I note that the hon. Member for Oxford, West and Abingdon (Dr. Harris) has done just about as well as me in that regard. The history is that the police have spent vast amounts of time and energy deliberately trying to catch men having sex with men in gentlemen's toilets, and the enormous worry exists in the gay community that the police will start doing that again, because we will have expressly decided to retain this element of the legislation. Many police forces have extremely enlightened views, but as we have discovered in the past few weeks, some police forces and officers do not. It is wholly right to seek to prevent the misdemeanours referred to, but the worry is that the provision is discriminatory.
§ Sandra Gidley
I thank the hon. Gentleman for his intervention. Much of what is said on this issue is based strongly on historical argument and expressed in that context, but I would contend that we live in an ever more accepting society. There are some who have a complete abhorrence of any sex other than heterosexual sex in the missionary position, but in general society is much more tolerant, particularly young people.
I have to question the slightly muddled thinking, as it could be regarded, of my hon. Friend the Member for Oxford, West and Abingdon. He said on one occasion that the public have a greater abhorrence of seeing a gay couple speaking—[HON. MEMBERS: "Kissing."] Sorry, I meant kissing, not speaking; things have not got that bad. He said that the public have a greater abhorrence 610 of a gay couple kissing than of a heterosexual couple kissing at a similar stage in a relationship. However, he then said that an element of distress, alarm or offence should be involved when an offence is committed. What happens if even minor forms of sexual activity are included? As we know from discussions of another matter, kissing is sexual activity. People might be very shocked to see two gay men kissing in a public toilet, but they may not be shocked to see a heterosexual couple doing so.
§ Dr. Harris
My point is that, even if we accepted the new clause, sadly, because of public attitudes, there would still be a low threshold in terms of complaints made against men having sex in public. However, the existing clause provides no threshold whatsoever. It is not as if the new clause would not allow those who are offended—we must accept that people are offended by whatever offends them—to make a complaint. But one need not reach that threshold for sex in public lavatories, whereas the existing public order offence—which might catch such behaviour in a park, or on a bus or train—does require that someone be distressed and alarmed. In other words, we are writing a disproportionate level of offence into law, even despite public attitudes.
§ Sandra Gidley
I am not sure that I am any the wiser for that intervention.
Amendment No. 147 is intended to point out a slight anomaly whereby certain activities that are just as offensive, in some eyes, are not covered by the clause as drafted. My hon. Friend the Member for Oxford, West and Abingdon sought to go further, but his new clause does not achieve quite what he intends. I support his comments on the public order offence; indeed, initially, we wanted to develop our thinking on the treatment of this offence in that way. It is an offence, but I hope—and I seek reassurance from the Minister and others—that undue weight will not be placed on using the clause as a means of persecuting people or going on a witch hunt. That may not be quite the right term, but it is the only one that I can think of without a double meaning.
To sum up, clause 66 is flawed. I would welcome hearing the Government's opinion on what has been said, but I do not think, sadly, that new clause 10 quite takes us to where we should be either.
§ Mrs. Brooke
I want to say briefly that I welcome Government amendment No. 85, which came out of an excellent debate. I did not participate much in it myself, but it was fascinating to listen to it and it provides a good example of some of the good work that was done in Committee.
On the present subject of debate, which has taken up considerable time, I want to repeat some of the points that we made in Committee. We do not feel that the Government amendment of the time, which is now clause 66, is appropriate for the Sexual Offences Bill. Our point was that it was an interim measure, but in the fullness of time when appropriate legislation came along—we acknowledged that it could not be attached to the Criminal Justice Bill—we wanted there to be a new public order offence, as recommended in "Setting the Boundaries". We do not want to lose sight of that. It is how we believe that matters should be progressed. As 611 I mentioned in Committee, it would have been helpful if the phrase "distress, alarm or offence" was in the clause. because it would have made it easier to move this forward as a public order offence in the future.
I want to put those comments on record. We have heard some reassuring words from the Minister to the effect that there remains the possibility of inserting amendments into other legislation. I hope that this is not the end of the story—[Interruption.] I do not want much more talk, but suitable action on a public order offence in the future.
§ Paul Goggins
Unlike the hon. Lady, I hope that this is the end of the issue.
I begin by responding to the hon. Member for Oxford, West and Abingdon (Dr. Harris). As he made a powerful and knowledgeable speech, I thought that he would have made an interesting member of the Committee. If nothing else, we could have observed his developing relationship with his hon. Friend the Member for Romsey (Sandra Gidley), who asked some searching questions. I shall also deal with amendment No. 147, which would add sexual activity in shower cubicles to the existing clause 66.
Hon. Members who have followed the debate here and in the other place will be aware of the history behind this offence. We believe that existing legislation—public order Acts and provisions on outraging public decency—are already capable of covering sexual activity in public. However, we have accepted the case for a specific offence of sexual activity in a public lavatory, in acknowledgment of particular public concerns, which have been reflected in debate and in correspondence. I have to say to the hon. Member for Romsey that similar concerns have not been raised about sex in shower cubicles.
§ Mrs. Claire Curtis-Thomas (Crosby)
I support my hon. Friend's observations. I greatly welcome the introduction of this new offence. It is something that preoccupies quite a number of my constituents, because we have a plethora of seaside gardens that have lavatories, which, unfortunately, have attracted a considerable amount of sexual activity of the sort that we have heard discussed this evening. In common with my hon. Friend, I have never received any correspondence about sex in the shower. When I receive the same sort of mailbag on that as I do on sex in the toilet, it might become an issue. For the moment, I am delighted that we are carrying this measure forward: it will bring much relief to many offended people in my constituency.
§ Paul Goggins
I am delighted to hear that my hon. Friend is pleased with this particular clause. Those who might engage in sex in shower cubicles may be caught by existing legislation, which could cover that particular instance.
612 The new clause proposed by the hon. Member for Oxford, West and Abingdon does not recognise that we are making an important distinction—
§ Sandra Gidley
If the offence of having sex in a shower cubicle is covered by existing legislation, why is the parallel offence of having sex in a public toilet not so covered?
§ Paul Goggins
That is the whole point, and we covered it extensively in Committee. We believe that sex in toilets is already covered, but we are making the point of explicitly making it a separate offence. That has always been clear and we accept it. Indeed, the constituents of my hon. Friend the Member for Crosby (Mrs. Curtis-Thomas) are delighted by it.
§ Paul Goggins
I am not going to give way again, as I am conscious of the time and of the fact that we have much else to debate. Those who spoke to the various amendments have received a fair hearing in the House.
As I was saying, new clause 10 does not recognise that we are making an important distinction between sexual activity in toilets and sexual activity in public generally. We are seeking to outlaw all sexual activity in public toilets, but sexual activity in public per se is not a crime unless it causes harassment, alarm, distress or offence. The Government believe that sexual activity in public toilets is wholly inappropriate. On the other hand, if a couple take care to find an isolated area where they may reasonably expect to be unobserved in order to engage in sexual activity, we would not wish to criminalise them. However, we do wish to make it absolutely clear that sexual activity in public toilets is wrong. We do not wish to allow offenders to argue that they did not expect someone else to see or hear them because it was late at night, or to question whether an unfortunate witness was really distressed by their activities.
Concerns have been raised in the debate tonight—and movingly in Committee by my hon. Friend the Member for Rhondda (Mr. Bryant), who may not have won the day but made a powerful case—that the provisions could become a modern way of targeting the gay community. I said to my hon. Friend in Committee and repeat it now that in cultural terms we live in a very different age, frankly, than when homosexuals were pursued by the police in public toilets. I recall a time when the gay community, or individual homosexual men, were targeted in public toilets in Manchester. Yet within a mile of those toilets today, there is the gay village, which shows that the whole culture has changed.
I must make it plain to the hon. Member for Oxford, West and Abingdon that the police have an obligation to prosecute the law equally. I certainly undertake to monitor the impact of the legislation to ensure that it is implemented fairly and that gay men or any other group are not singled out in any particular way. If there is any question of people being blackmailed, blackmail is an offence, which should be dealt with in the appropriate way. I therefore resist the new clause and associated amendments.
I shall not detain the House for long in dealing with the Government amendments. The hon. Member for Beaconsfield (Mr. Grieve) has acknowledged the 613 improvements that we have made. We concluded that there was no justification for treating categories of relatives any differently, so we tabled Government amendments Nos. 50 and 51 to bring relationships between aunts and uncles and their blood nephews and nieces within the scope of the offences in the Bill.
Finally, I should like to deal with the offence of voyeurism. As the hon. Member for Mid-Dorset and North Poole (Mrs. Brooke) said, we had a very good debate in Committee, although she acknowledged that she was a voyeur rather than a participant in it. These Government amendments remove the reference to "structure" from the definition in clause 69 of a private act for the purposes of the voyeurism offence. I was certainly persuaded by the strength of the argument put forward by members of the Committee about the scope of the offence. As drafted, the definition of a private act covers someone being undressed, in their underwear, using the toilet or engaging in a sexual act of a type not normally done in public when in a structure in which they might reasonably expect privacy. In Committee, we discussed the scope of the offence, and whether it should protect those not only in a structure that affords privacy, but in other places or spaces where privacy might reasonably have been expected.
Government amendment No. 85 removes the term "structure" in this context and replaces it with "place". I am grateful to my hon. and learned Friend the Member for Redcar (Vera Baird), because she made that clear and simple suggestion in Committee. The amendment will widen the scope of the offence to protect someone engaging in a private act in any place where they could reasonably expect privacy. It will be for the court to determine whether or not their expectation of privacy was reasonable. Government amendment No. 86 is simply a minor consequential drafting amendment ensuring that the definition of "structure" remains in force to cover the term as it is used in clause 68. I urge the House to accept these amendments and I hope that the hon. Member for Oxford, West and Abingdon will withdraw his new clause.
§ Dr. Evan Harris
It is disappointing that the Minister would not engage in formal debate on this important issue by taking interventions. I would have asked him two questions. First, he says that he wants to make sex in public lavatories a particular offence because of the number of complaints from the public, but why must we always give in to public opinion when the impact will be discriminatory? That was the justification used for years of discriminatory sex laws. Secondly, why is the Minister concerned only with public lavatories? Does he not think that no-go areas on Clapham common and Hampstead heath and in other parks are worth reclaiming for the public for the same reason? If this new offence is good enough for public lavatories, it should be good enough for other areas.
The Minister said that the police have a duty to prosecute the law equally. I agree, but the law is not equal in this instance. The hon. Gentleman would not 614 take an intervention on the point, but it is clear that the standard of complaint required for sex outside public lavatories, which can take place between men and women and not just between men, has a higher threshold—the need for someone to be distressed or alarmed by it—than sex in public lavatories. That means that convictions will be easier to obtain and even with an equal prosecution of the law there will be a disproportionate effect. The law will no longer be equal in terms of the defence available. The Minister has failed to deal with that point and has therefore spoilt what would otherwise be a useful Bill, for me and for many people outside the House who are concerned about the history of discrimination in this area.
I am grateful to my Front-Bench colleagues for recognising that clause 66 is unsatisfactory. I recognise that they have a responsibility to deal with the best possible outcome at this point rather than with the best outcome possible, but I maintain that in years to come the Bill will have a disproportionate effect. The Government, and those who have acquiesced to the Bill, have created an inconsistency and have failed to take the action in other areas of the law that would be necessary for a widely based law. The Government need only look at the proposals in their own White Paper to see that they have made a U-turn and conceded an unreasonable argument from the official Opposition and Members of the House of Lords. Time will show that it will lead to unjustified discrimination.
I would not win a vote on the issue and I shall not divide the House, but I wished to make it clear that if prosecutions are disproportionate—and entrapment and blackmail ensue—the Minister had the opportunity to take a fairer approach that applied to people of all sexualities. Having said that, I beg to ask leave to withdraw the motion.
§ Motion and clause, by leave, withdrawn.