HL Deb 15 August 1921 vol 43 cc567-77

After Clause 3, insert the following as new clauses:

Acts of indecency by females.

Any act of gross indecency between female persons shall be a misdemeanour, and punishable in the same manner as any such act committed by male persons under section eleven of the Criminal Law Amendment Act, 1885.

Moved, that this House doth agree with the Commons in the said Amendment. —(The Lord Bishop of Norwich.)

THE EARL OF MALMESBURY

My Lords, I am extremely sorry to raise a discussion upon what must be, to all of us, a most disgusting and polluting subject. I very much regret that circumstances over which the Committee who sat to consider these Bills had no control, have compelled me to raise this subject to-day, and to move that this House do not agree with this Amendment. I would remind you briefly that three Bills were considered by a Joint Committee composed of six members of your Lordships' House and six members from another place. Those members sat for a very considerable time for the purpose of carefully weighing all the clauses of those different Bills. There was, first of all, the Bill introduced by the Bishop of London, there was then what we may call the Government Bill, and there was, thirdly, a Bill introduced by my noble friend, Lord Beauchamp, called the Sexual Offences Bill. That Joint Committee sat for a considerable time and called a very large amount of evidence, and it was found that those three Bills had so many points of similarity that for convenience sake they were ultimately printed in parallel columns in order that we might compare the different clauses.

As the right rev. Prelate said, at the last moment in the small hours of the morning at the end of the session, and not even at the instance of His Majesty's Government, what happened was this. A new clause, altogether different from any subject matter which our Joint Committee had to consider, was introduced into this Bill, and I can tell your Lordships that if you will be good enough to take the trouble to look at the Report of that Joint Committee upon the various subjects raised, you will find only a very small and very casual reference to the subject of this Amendment. The noble Earl, Lord Onslow, was a member of that Committee and he will bear me out that there was only a very brief reference to this disgusting subject throughout the whole of those proceedings. I believe that I was responsible, in consequence of something that was said, for raising this question, and moreover the impression, a very strong one, which was left on my mind was that this subject did not require serious attention, and that such stories as we heard were exaggerated. In fact, I was more than satisfied that the particular subject did not need our further consideration.

Here you are within a few days, it is to be hoped, of the end of the session, intro- ducing a great change into our Criminal Code, put forward not by the Government, not by a Committee of great lawyers or experts called to consider this matter, but at the instance of private members of the House of Commons. I express very great surprise that another place—I say it with all respect—should have seen fit to accept an Amendment of this sort in those conditions. I say at once—and I am glad that the noble and learned Viscount on the Woolsack expressed sympathy with what I am going to say—this subject was altogether beyond the scope and compass of the inquiry and no real evidence whatsoever was taken upon it. Moreover the Bill as it left the Joint Committee was an agreed Bill. It was a compromise. There were many points raised during the course of that inquiry upon which we did not all agree. I was not altogether satisfied with the result of that inquiry, but I waived several points in order that we might arrive at an agreement. My noble friend, Lord Onslow, knows that what I am saying is absolutely correct—that in order to present an agreed Bill to your Lordships' House we gave way here and there, and that Bill, as the noble and learned Viscount rightly says, was a compromise.

I am afraid that lack of time is a very poor excuse for passing any legislative measure of this sort. There is ample time and ample scope for legislation to be introduced on this subject into this House at an early date, and I am not going to believe that the whole morality of this country is going to be abandoned because a few months delay takes place before further legislation of this sort can be introduced. If, after careful inquiry, it is found desirable introduce a measure to make criminal this particular offence, and that measure was introduced into your Lordship's House, say, next session, as far as I am personally concerned, I should support it if I was convinced it was needed.

Let me point out to your Lordships that in passing a clause of this sort you are going to do a great deal more harm than good. You are going enormously to increase the chance of blackmail without in the slightest degree decreasing the amount of this vice. I think your Lordships will bear me out when I say—and it requires some moral courage to discuss a subject of this sort—that the domestic habits of men and of women are entirely different. Women are by nature much more gregarious. For instance, if twenty women were going to live in a house with twenty bedrooms, I do not believe that all the twenty bedrooms would be occupied, either for reasons of fear or nervousness, and the desire for mutual protection. On the other hand, I know that when men take shooting boxes the first inquiry is that each shall have a room to himself if possible; and a comfortable room, too.

I am sorry that the right rev. Prelate, the Bishop of London, is unable to be in his place to-day, because a great responsibility is thus thrown on the right rev. Prelate, the Lord Bishop of Norwich. I am certain that if the Bishop of London had only used his influence with those who are desirous of introducing this Amendment something might have been done. There is one thing I want to say, and it is this. We all know that vice has been increasing partly owing to the nervous conditions following on the war, but I believe that these cases are best left to their own determination. I believe that all these unfortunate specimens of humanity exterminate themselves by the usual process, which we know has taken place in every nation through all the ages. The more you advertise vice by prohibiting it the more you will increase it. May I also add this—and I think I have now touched on all the arguments which seem to me to be important—that you will find it extremely difficult to get any evidence against persons accused of this offence. It is going to be practically impossible to obtain evidence, and the evidence, when obtained, will be so imperfect that no jury will convict; and, as I have already said, the opportunity for blackmail will be vastly and enormously increased.

I trust your Lordships will give me your support because I intend to carry the matter to a Division. I do not want to take. up any more time of the House. It is not customary, I believe, to allude to speeches made in another place, but I should like to make this quotation from the speech of an honourable member on the subject the other day. He said— Eight years ago the Home Secretary then very properly refused to consider any Amendment in this direction. It was not even brought before the House; it was turned down. This Amendment was introduced in another place by three honourable and learned members, all lawyers, all friends of my own, who expressed themselves warmly in its favour. But when another member of the House of Commons moved the adjournment of the discussion they voted for the adjournment, thereby jeopardising not only their own Amendment but the whole of the Bill. In those circumstances I cannot believe that the honourable and learned members who supported this new clause could have been very enthusiastic about it becoming law. I beg to move that this House disagrees with the Commons in the said Amendment—

THE LORD CHANCELLOR

It is not, necessary for the noble Earl to move to disagree. He can challenge the issue on the Motion that the House doth agree.

THE EARL OF DESART

My Lords, I desire to give my earnest support to the Motion of the noble Earl. I was rather startled that the right rev. Prelate should suggest that a matter of this kind, a new clause involving a serious alteration in the Criminal Law and creating a new offence —a course open to the greatest objection and of a very controversial character—should be accepted by this House, because the House of Commons would not have time to consider and deal with it and send it back here at this period of the session. I think if the noble Marquess, Lord Crewe, sought for any justification of the Motion he made the other night he could have no better illustration than the suggestion of the right rev. Prelate.

This new clause has no reference to, and is not even within the purview of, the Bill. The Bill is to amend the Criminal Law Amendment Acts, 1885 to 1912; that is, to effect certain alterations and amendments of the existing law. At the time it was introduced this new clause was certainly not in the minds of the promoters of the Bill; it was not in the mind of any of your Lordships when you discussed it. The noble Earl has told us that there was a reference to it in the Committee of which he was a member, and to which this and other Bills were referred. I had the honour of serving on a similar Committee during the last Parliament, which did not complete its labours. I am speaking from recollection, but I believe I am right in saying that this subject was not referred to, or even thought of, in that Committee. And that is very natural, because no one Who reads this measure can suppose that such a question would be likely to arise in connection with it.

I look on this as a really grave matter. It has been stated already that the Amend- went was introduced at a late hour in the House of Commons. It was not discussed at great length, and it was supported by a small number of members relatively to the normal size of the House of Commons. That is not unusual, but in a matter of this kind it is not immaterial. I suggest to your Lordships that a clause altering the Criminal Law, creating a new offence of this gravity, should be introduced with the full responsibility, if introduced at all, of the Government, after full consultation with their Law Advisers and the Police Authorities. They are in possession of information which cannot be at the disposal of private members of either House of Parliament.

I much regret that such a question has even been discussed. I may perhaps draw cold comfort from the realisation that there arc not many people who read the debates of either House. I am strongly of opinion that the mere discussion of subjects of this sort tends, in the minds of unbalanced people, of whom there are many, to create the idea of an offence of which the enormous majority of them have never even heard. I was going to say—I suppose I must not—that I know this does happen. Why is this suggestion made? In order that there might be an off-chance, under some possible circumstances, of there being a prosecution. That is a very small chance indeed, for two reasons. One is the perfectly obvious reason to which my noble friend has alluded, that it is almost inconceivable that you would ever get satisfactory evidence of the crime at all. But there is another reason, which weighs upon me very heavily. With reference to the other clauses of this Bill, when it was your Lordships' House, I drew attention, on more than one occasion, to the apprehension I felt of its giving rise to a great deal of blackmail. I did not succeed in persuading your Lordships; but that which, in reference to those clauses, I thought probable, I really would go so far as to say that I think, in respect of an offence like this, would be certain.

I will tell you why. It is very disagreeable talking of these things, but we all know of the sort of romantic, almost hysterical, friendships that are made between young women at certain periods of their lives and of its occasional manifestations. Suppose that some circumstance gave to some person who knew of it the idea:"How easy it now is for me to make a charge. Perhaps they do not know what the law is." Do you suppose any woman with anything in the world to lose would ever face such a charge as that? It would not be a question of defending themselves against it; it would be a question of facing it, of being brought into a public Court to meet a charge of that kind. They would pay anything sooner than that. I believe that blackmail would not only be certain, but that it would inevitably be successful.

I am sorry to detain your Lordships so long, but this is a matter which I do not think can be disposed of without consideration. Suppose there were a prosecution, as there might be. In my judgment, the results would be even more appalling. It would be made public to thousands of people that there was this offence; that there was such a horror. It would be widely read. We know the sort of publicity that sort of thing gets, and it cannot be stopped. If I may draw on my own experience, I should like to tell your Lordships of the case of another offence of a horrible character that is already on the Statute Book. I remember one which attracted very great public attention. At that time I had access to the Chief Constables' reports of all the counties and towns in England. After that prosecution there was, for about eighteen months, according to my recollection, a perfect outburst of that offence all through the country. I am sure that a prosecution would really be a very great public danger. Is there any necessity fur it? How many people does one suppose really are so vile, so unbalanced, so neurotic, so decadent as to do this? You may say there are a number of them, but it would be, at most, an extremely small minority, and you are going to tell the whole world that there is such an offence, to bring it to the notice of women who have never heard of it, never thought of it, never dreamed of it. I think that is a very great mischief, and I came here determined to do all I could to help my noble friend, Lord Malmesbury, to get this clause removed from the Bill.

I never like referring to one's own position, but I think I may claim to speak on this matter. I was Director of Public Prosecutions for fourteen years; I was second in that Department for sixteen years before that. I have thirty consecutive years of close connection with all the big prosecutions, and have had intimate relations with the police all over England during that time. Speaking as an old Director of Public Prosecutions, I desire, whatever the period of the session, whatever the pressure of public business, to enter my protest against such a provision as this being passed in this way and at this time.

THE LORD CHANCELLOR

My Lords, the noble Earl who has just spoken has made so weighty a protest against the change introduced in the House of Commons that to the merits of his argument it is hardly either necessary or possible to add a word. I must, however, reinforce, if only in a few sentences, his expression of surprise that it should have appeared to any one in another place to be a reasonable process to make a proposal of this kind without taking the trouble to ascertain what were the opinions of the Judges upon it, what were the opinions of the Law Officers and what were the opinions of the Director of Public. Prosecutions and of his Department. Such a change in the law may or may not be desirable; I hold the strongest view, for the reasons stated by Lord Desart, that the case has not been made out on its merits for such an alteration in the law. At least, it would appear to me to be indisputable that the fact that a change in the law of such gravity, as the noble Earl, with his experience has pointed out, has been introduced as the result of a private Amendment to a mil with which it has nothing whatever to do, without consulting a single Government Department, is one of the most extraordinary steps which a legislative body could have taken, or to which another legislative body—against its wishes, as I should surmise—has ever been asked to assent.

Lord Desart has pointed out with unanswerable force and with great truth, as I think, that the overwhelming majority of the women of this country have never heard of this thing at all. If you except a sophisticated society in a. sophisticated city, I would be bold enough to say that of every thousand women, taken as a whole, 999 have never even heard a whisper of these practices. Amongst all these, in the homes of this country, where, in all innocence, and very often as a necessary consequence of the shortage of small houses, they have to have the same bedroom, and even sleep together in the same beds, the taint of this noxious and horrible suspicion is to be imparted, and to be imparted by the Legislature itself, without one scintilla of evidence that there is any widespread practice of this kind of vice. I should think myself wholly wanting in my duty if I gave any weight to the argument that the decision which we take to-day may involve the loss of this Bill. Nobody in another place who is not already a confirmed enemy of this Bill will be likely to resent our taking a step which any revising Chamber in the world which knows its work would certainly think it proper and necessary to take.

The proposal with which we are dealing has nothing whatever to do with the subject matter of the Bill, and nobody could be content to use it as an excuse for destroying the Bill who was not anxious to do so in any case, who was not groping round for a pretext to compass its destruction. The view I take of our duty is that, in order to obtain the advantages of the passage of this Bill, we are not entitled hurriedly to legislate upon grave matters of the highest controversy, in considering which I myself believe that an overwhelming majority of those who have given special attention to this matter would be against this proposal.

THE MARQUESS OF CREWE

My Lords, the noble Earl, Lord Desart, was good enough to say that the proposal which I made the other day was reinforced by what has happened in relation to this Bill, and I cannot help thinking that it is a rather humiliating spectacle to see your Lordships given the choice between adopting an addition to this Bill, which has so far been defended by nobody in debate, on the one hand, and, on the other, incurring the possibility of losing the Bill altogether. How far that danger may be likely I am in no position to say. Probably there are one or two other provisions in the Bill which the House might have desired to amend. It seemed to me that the first of the Commons Amendments, making the consenting child guilty of a misdemeanour, is one open to a great deal of criticism, and I should certainly have refused to agree if I believed it to be possible. The noble Viscount on the Woolsack has also mentioned a further Commons Amendment, relating to the hearing of incest cases in camera, which has not yet come before your Lordships for consideration.

It is, I consider, a most unfortunate dilemma in which your Lordships are placed, owing, I am bound to say, to the action of His Majesty's Government in closing the session in such a desperate hurry. The objection to the Commons Amendment now under consideration has been pressed from two separate points of view by the noble Earl and by the noble Viscount. The action of inserting in the Bill a clause foreign to the main purpose of the Bill was, I think, not too strongly described by the noble and learned Viscount. As regards the actual calamity which is likely to follow the insertion of this clause, on which the noble Earl, Lord Desart, lays such stress, I hope myself that he may have put it too strongly. For one thing, it does not seem to me that the possibility or probability of blackmailing with regard to this particular vice is as strong as the noble Earl seems to think, but it is evident that the general sense of the House, so far as one can judge, favours the rejection of this Amendment, even at the possible cost of losing the Bill altogether, and, as the noble and learned Viscount said, the Bill undoubtedly has a good many enemies in another place. I cannot myself help fearing that the results may be serious, and on the whole I confess I should be prepared to follow the right rev. Prelate in accepting the House of Commons Amendments, little though I like sonic of them.

THE LORD ARCHBISHOP OF CANTERBURY

My Lords, as the noble Marquess has just said, we are placed on the horns of a dilemma in this matter, and I own, for myself, that I should find it, after the argument we have heard to-night, practically impossible to give any cordial support to the Amendment introduced in the House of Commons; but I hope your Lordships will realise how grave is the responsibility we take if we decide not to accept that Amendment, notwithstanding the risk that the Bill may perish in consequence. I should not, I think, if I were in the position of my right rev. brother, press his proposal against what is obviously the feeling of the House with regard to this particular matter, and if he should feel it to be right not to press it, and the House therefore accepts the position that we reject the Commons Amendment, I hope that the grave words addressed to the House and to the public from the Woolsack, as regards the effect of the rejection of this Bill, will be brought to the notice of those who choose this particular matter as a casus belli in the House of Commons and are really showing themselves opponents of the Bill as a whole.

I trust that every influence, direct and indirect, inside the House and outside, will be brought to protest against the sacrifice of this Bill, for which we have long waited, and which, over and over again, has seemed about to be attained and has not been attained. The perishing of this Bill would be a matter so disappointing to so very large a number of those who have the moral interest of the community at heart, that I trust every possible influence will be brought to bear to secure that the House of Commons shall realise what they are about, so that if this Amendment be not accepted by this House, they will do nothing to imperil the passing into law of a measure which is so vital and necessary to the welfare of the country.

THE LORD BISHOP OF NORWICH

My Lords, I think that after the debate which has taken place it is only proper that I should ask leave to withdraw my Motion. I wish, however, to add one word, and it is this, that I am entirely in agreement with the arguments which have been directed against this clause. There is not one of them which has not my sympathy, but I had to balance between one thing and another, and on the whole I came to the conclusion that the merits of the Bill were great enough to allow to pass it even in a form which included so many demerits. I should be sorry, however, for anyone to suppose that I was in favour of the clause as it stands, and I repeat what I have said before, that this particular clause appears to me to be utterly irrelevant and undesirable. The reason why I commended it to your acceptance was that, on the balance, it was better to have the Bill than to run the risk of losing it. However, after what I have heard, I am glad to come down on the side of the arguments against the clause, with all of which I am in agreement, and all of which I had anticipated.

On Question, Motion that the House doth agree with the Commons Amendment, negatived.