§ LORD PARMOOR rose to ask His Majesty's Government whether it is a fact that, while the proposals to create new criminal offences are awaiting the consent of Parliament in the Criminal Law Amendment Bill (H.L.), an Order has been issued whereby a proposal contained in the said Bill has been created into a new criminal offence without awaiting Parliamentary sanction.
§ The noble and learned Lord said: Lords, when I put down the Notice which stands in my name a Question by the noble Earl, Lord Beauchamp, stood on the Paper dealing with the same subject-matter. I understood, in fact I know, it was the object of the noble Earl to expedite, if he could, proceeding with the Criminal Law Amendment Bill, of which the Second Reading has been passed in your Lordships' House. The main object of the Question which I put down was in the same direction. No doubt I expressed my objection in rather a different form, because until the Bill is passed you might get matters of this kind dealt with under the procedure of the Defence of the Realm Act, and as a matter of fact a Proclamation dealing with this same subject-matter—namely sexual offences—has been promulgated 631 under the Defence of the Realm Act and known as Regulation 40D.
§ This question of sexual regulation—I do not want to go into it at any length to-day—is undoubtedly a very difficult one, and it has raised a great difference of opinion both in the other House and here. Last year a Criminal Law Amendment Bill was introduced into the House of Commons, and afterwards went to a Standing Committee. The particular provision dealing with the contamination of venereal diseases was dealt with in that Committee, with the result that the penalties to be imposed were made applicable equally to men and women, which, to my mind, is a matter of great importance, because if legislation of this kind is to be introduced, you want it to be introduced with as little friction and on as equal and fair lines as possible. It appears to me to be not very just to introduce Regulations of this kind throwing a penalty upon women, whereas men, who very often may be the authors of the offence, are to go exempt.
§
One other thing I should like to say on this point. In all matters of this kind I think the leading consideration should not be punishment, but the attempt to reform, and these women are rather subjects of pity than subjects of punishment. If you deal with these matters in the ordinary way by Parliament, of course you get the opportunity of introducing reformatory regulations at the same time as you introduce penal punishment, and that is one of the features of the Criminal Law Amendment Bill which has been before your Lordships' House for Second Reading this year, and which has been reefrred to a Joint Committee, in reference to which Lord Beauchamp put down his Question. I call the attention of the noble Lord opposite to the provision of Clause 5 of this Bill. It is in the same terms as the section of the Bill after it had been considered by the Standing Committee last year in the House of Commons. In the first place, as I pointed out, it applies both to men and to women, and I think that is an essential condition of a provision of this character. Secondly, there are two safeguards in the provisos also having a very important and material bearing. One of these safeguards is that—
a person shall not be convicted under this section if that person proves that he or she bad reasonable grounds to believe that he or she was free from venereal disease in a communicable orm at the time the alleged offence was committed.
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I doubt whether even in that form the safeguard is sufficient, but at any rate it introduces the well-known criminal protection that persons shall not be held guilty of an offence in reference to which they have no guilt; intent or knowledge.
§ But, as I shall point out in a moment when we come to the Regulation issued under the Defence of the Realm Act, there is no similar protection of any kind. In fact, under the Criminal Law Regulation 40D, although a woman may have perfectly good ground for believing that she was free from venereal disease—the Regulation does not apply to men at all—yet she may be found guilty and subjected to heavy penalties for the offence which she has committed. It appears to me extraordinarily harsh that where in the Second Reading of a Bill in this House, and after consideration in the House of Commons, you have had a provision of that kind introduced as a safeguard, you find on the other hand an Order issued in which no such safeguard exists.
§
The second proviso to the proposal in the Criminal Law Amendment Bill is this—
No person shall be convicted of any offence under this section upon the evidence of one witness unless such witness be corroborated in some material particular by evidence implicating the accused.
There, again, is a most valuable safeguard introducing what is really a new principle in our Criminal Law. As regards (b) I should like to emphasise this fact—although it is well known to Lord Sydenham, who has taken so much interest in this question—that it was not in the Bill as originally introduced in the House of Commons last year, but was introduced by the Standing Committee. It is fair if, in the consideration of Parliament, a Regulation of this kind should apply to both sexes equally, and that there should be these two very important safeguards, that we should have a Regulation under the Defence of the Realm Act applying it to women only, with both of those safeguards omitted. I do not want at the present moment to go into the general question, about which I feel strongly, of introducing by Proclamation and without Parliamentary sanction what are really new criminal offences.
§ Let me turn to the Regulation in question, because I know the noble Earl opposite 633 is going to reply on behalf of the War Office. It is true that this Regulation applies only to members of His Majesty's Forces, whereas the provision in the Bill will be general; but surely there is no difference, so far as the criminal offence is concerned, whether you make the matter general or applicable only to members of His Majesty's Forces. I mean that you ought to have the same provision that a woman who is really innocent, because she does not know she is guilty of the offence, ought not to be protected. Your Lordships will feel that even a woman who is in what is called a degraded position is hopelessly penalised as regards any reform if she is sent to prison under a provision of this character. It is very hard, therefore, that a protection, which in the consideration of Parliament one may assume is necessary, is not open to her under this particular Regulation. In the same way as regards corroborative evidence.
§ It may be said, in answer to my objection, that the soldier is subject to special penalties in matters of this kind. I accept, that. But that is no reason whatever why a woman should not have the protection which is contained in the provisions that I have read, both in the Criminal Law Amendment Bill which was dealt with in the last session in the House of Commons, and the Criminal Law Amendment Bill which has been read a second time your Lordships' House. The importance of this matter for those who intensely desire reform, as I do, in these questions of sexual offences, is that by introducing your reform in a method which raises, and, I think, not unjustly raises, opposition owing to its unfair incidence, you do all that you can to excite public opinion against what in my view is a most important amendment of our law which ought to be introduced with proper precautions and under Parliamentary sanction.
§ The other point on which I feel strongly is that in the Bill You not only impose penalties, but you also have provisions for reform; and if you are to deal anything like successfully with this difficult question pat ought to put reform in the foreground; you ought to do all you can to bring back into respectable social conditions a large number of these women, and not, by additional penalties without any chance of reform, push them still further into the bottomless pit into which they have been brought by the degradation of their lives. As I have said before, the object 634 should be pity and reform, not penalty and punishment. I do not want to raise any wider question upon the present occasion. I have now put forward the views on which my Question is founded, and I will ask the noble Lord to answer what I have said.
§ LORD SYDENHAMMy Lords, I hope, and I think, that my noble and learned friend in putting down this somewhat cryptic Question did not intend to prejudice in advance the provisions of the Criminal Law Amendment Bill, and especially Clause 5.
§ LORD PARMOORCertainly not.
§ LORD SYDENHAMThat Bill, for the first time, enables our law to take cognisance of an offence which in many cases is, in my opinion, a worse offence than murder; and I think it is a disgrace to our law that it has not hitherto had that power. The reason is that it is only in late years, in fact, perhaps, only in the last year or two, that people have begun to realise the terrible consequences of venereal disease.
I will not follow my noble and learned friend in discussing Clause 5, because think it would hardly be in order, as that clause is not before your Lordships' House at the present moment. I think he forgets that Regulation 40 D was discussed in detail in your Lordships' House on the initiative of the noble Lord, Lord Willoughby de Broke, and on that occasion the noble Earl the late Secretary of State for War (Lord Derby) explained the Regulation at considerable length, and showed clearly that the man was far more penalised than the woman. I think my noble and learned friend said that the man went scot free. As a matter of fact, if I remember correctly, the man can get two years hard labour. There is, however, as he has pointed out so well, an inequality between the sexes in the working of this Regulation, and very strong resentment has been aroused, quite naturally and quite justly. I feel it as much as my noble and learned friend.
But the Regulation has also been discussed in the other House. On June 18 the Under-Secretary of State for War said—
I cannot, on behalf of the Government, say that we will withdraw this Regulation, because we believe it is useful, and it may prove effective in a very difficult, a very delicate, and a very dangerous situation.635 I believe that the Government are right in maintaining this Regulation in spite of all the difficulties, because the present conditions in certain areas are distinctly dangerous. But the moral I draw is this, that Clause 5 of the Criminal Law Amendment Bill ought to be passed with the least possible delay, because it equalises all conditions between the sexes, and would remove the very legitimate grievances to which my noble and learned friend referred.I have already begged that the Government would take up that clause and pass it as a separate Bill; and I would again ask the Government if they would take that course, without waiting for the Report of the Joint Select Committee, which body, I am afraid, has not yet been set up. I believe that if that clause could be passed it would remedy the great defect which my noble and learned friend has pointed out, and do away with the marked resentment which is now being felt by a large number of women.
§ EARL STANHOPEMy Lords, Section 40 D of the Defence of the Realm Regulations does deal with a part of the subject covered by Clause 5 of the Criminal Law Amendment Bill, which I understand is now being considered by a Select, Committee of both Houses.
§ LORD SYDENHAMThe Joint Committee has not been set up yet.
§ LORD PARMOORThe Bill has been referred to a Joint Committee.
§ EARL STANHOPEIt is not quite correct, however, to say, as I think appears in the Question, that this Regulation was made while similar proposals were awaiting the consent of Parliament. Section 40 D of the Defence of the Realm Regulations was issued under an Order in Council of March 22 last. The Criminal Law Amendment Bill was not ordered to be printed until a month after that date—namely, on April 24. It was read a second time in your Lordships' House on May 7, and was then referred to a Select Committee.
The history of this question is briefly this. The representatives of the Oversea Dominions pressed very strongly at the imperial War Conference last year that steps should be taken to prevent the spread of venereal disease in this country. 636 A Bill was therefore introduced last year in another place and was given a Second Reading and made considerable progress in Committee. The clause dealing with sexual intercourse of persons suffering from venereal disease passed the Committee stage. The Bill then failed to make satisfactory progress, and therefore did not become law.
Your Lordships, in the various debates which have taken place on this unsavoury subject, have, I think, all agreed as to the urgency of the matter; and you will therefore perhaps not disapprove of the Government taking action in the only way that it was open to them to do without having to undergo the delay necessary before a Bill could be passed into law. It is an open secret that the Army Council urged strongly that if any Regulation were to he promulgated it should be a Regulation dealing with the entire population, civil as well as military, but we were advised that it would be ultra vires to deal with the civil population on this matter under a Defence of the Realm Regulation. It is for that reason that Section 40 D has taken the form which it has, although, as noble Lords know, it does not contain the whole policy of the Government. The full proposals of His Majesty's Government were contained in the Criminal Law Amendment Bill. It is, of course, for that reason that we have found it impossible to deal with the male population other than those in the Army, but, as I have already pointed out, the Army Council were only too anxious that if it had been possible this should be done in a Regulation.
In regard to the unfairness as between men and women, the penalties, as the noble and learned Lord himself pointed out, that are imposed upon men of His Majesty's Forces if they conceal the disease, as a woman would conceal her disease under this particular clause, are infinitely more severe than are shown by this Regulation. As Lord Sydenham pointed out, it can amount to two years imprisonment with hard labour instead of six months or a fine of £100. The noble Lord referred to the inadvisability of making new criminal offences under the Defence of the Realm Regulations, but as he himself, I think, pointed out, this very often happens under the Defence of the Realm Regulations; and it was with that object that Parliament gave authority to the Government to issue Regulations when it was found to be 637 necessary and urgeat, as [...] this case. I think that is all that the noble and learned Lord asked me to reply to, and I can assure him that it is the wish of the Government that the Bill dealing with this question should receive early consideration, and, if possible, be passed into law.
§ LORD PARMOORI thank the noble Earl for his answer and for the lucid way in which he gave it, and I hope the result of this discussion may be that the Bill will be pressed on in order that matters may be considered and sanctioned fairly by Parliament.
§ LORD SYDENHAMMay I ask whether the Government would consider my proposal that Clause 5 should be taken as a separate Bill, thus avoiding the delay which will necessarily occur if the Bill is taken as a whole?
§ EARL STANHOPEI will consult the Home Office on the subject.