PUBLIC PLACES (ORDER) BILL. [H.L.] (Hansard, 9 December 1926)

LORD BALFOUR OF BURLEIGH
My Lords, this Bill is described as "a Bill to repeal certain laws relating to prostitutes, and to amend the law relating to order in streets and public places." That is a very concise and entirely accurate description of what the Bill is intended to do. My justification for troubling your Lordships with the Bill is quite simply that a matter of common justice is involved. The present law in its operation works unjustly, not only as between men and women, but also as between different classes of women themselves. I am quite sure that the fact that the class of people on whom the law operates hardly is a despised and peculiarly pitiful class is only a reason for your Lordships giving the matter even more careful consideration than you would give it in any case.
The fact is that the laws relating to solicitation are entirely out of date. They are not modern enough to be in line with present day requirements. At the same time they are not old enough, I think, to have become covered with any sort of sacred antiquity which entitles them to special protection. When I say that the laws relating to solicitation work unfairly, that is not because the actual position is that it is the law on the Statute Book which is administered in this manner, but it is something quite different. It is really a series of legal fictions which have been brought about in order to meet the necessity of the case.
In the first place, there is the legal fiction to-day about the annoyance of the person solicited. Under the Metropolitan Police Act, 1839, paragraph (11), one of the paragraphs which is repealed by subsection (2) of Clause 1 of this Bill, penalties are provided for every common prostitute 1395 or night walker loitering in a public place for the purpose of prostitution or solicitation to the annoyance of inhabitants and passengers. In point of fact, when a woman is dealt with under this section it is the rarest possible thing for evidence of annoyance to be given at all. The police constable, as a rule, when in the witness box tells the magistrate that the man looked annoyed. Of course, some men always look annoyed, and in any case it is a very difficult thing for a police constable, even from a distance of fifty yards, to judge with any certainty whether the man really is annoyed. The fact is that it is a legal fiction that the man is supposed to be annoyed and that is held in the majority of cases to be good enough.
Then there is another legal fiction under the Vagrancy Act, 1824, and the part of the particular section, Section 3, which is quoted in Clause 1 of the Bill, is also repealed. Reference is made there again to a common prostitute wandering in the public streets and behaving in a riotous or indecent manner, and the same thing applies to this riotous or indecent behaviour as to the case of annoyance. And I can quote no less an authority than the Assistant Commissioner of Police, who said in giving evidence in 1918 before the Joint Select Committee on Criminal Law Amendment— The only evidence of behaviour in a riotous or indecent manner is the same evidence of solicitation. Therefore, I think it is fair also to describe that as a legal fiction. Moreover, before a woman can be judged under either of these sections she has to be condemned as a common prostitute, and before she even stands her trial, because these sections apply only to women described as "common prostitutes." It is the fact that there is no legal definition of a "common prostitute" and in that case the police constable goes into the box and states that the woman is a common prostitute. It really seems to me to be contrary to every principle of British justice that the case of a person on trial should be prejudged as in this particular instance. In the ordinary way when a man is on trial for any offence any previous convictions or evidence as to character are most carefully kept to the close of the proceedings and only then revealed to the jury.
1396 I would like to read two brief extracts from letters from a very much greater authority than I can claim to be—Mr. Forbes Lankester, until quite recently a Metropolitan Police Magistrate who, of course, has very great experience. He writes as follows— The policeman's evidence on two questions of fact, which have to be proved before any conviction can take place, is usually accepted without corroboration: (1), that the woman is a prostitute; (2), that she was soliciting to the 'annoyance of passers by or inhabitants.' … The first fact is held to be proved by the policeman swearing that she is a prostitute, and if asked why he says so, he replies that he has seen her talking to and consorting with other prostitutes, i.e., other women against whom similar evidence has been given or whom the police think are prostitutes. The second fact is usually held to be sufficiently proved by the police saying that the man accosted appeared to be annoyed. There can be no doubt that conviction on such evidence has led to a widespread belief that the police in these cases do unjustly discriminate between women acting in exactly the same way, either through favour or through the offer of money from these unfortunate woman. I have personally met no evidence of the latter suggestion, but the opportunity is there, and the belief that the suggestion is well founded does notch harm to the police themselves. I yield to no one in admiration of the way in which the police discharge their primary duty to the public in the protection and defence of the life and property of His Majesty's subjects, but I do not regard them as ideal custodians of public morality, and the sooner they are relieved of their duties in this respect the better it will be for their own reputation and the safety of women lawfully using the public streets. There is one other short quotation I should like to make from Mr. Forbes Lankester's letter, regarding the Vagrancy Act. He writes:— Since recent decisions of the Quarter Sessions, the police have prosecuted under the old Vagrancy Act, and some magistrates have held that accosting amounts to riotous and indecent conduct, and have sentenced the unfortunate woman to one month's hard labors without the option of a fine. This I regard as a monstrous injustice. The Act was never intended for such cases, but no decision has been possible, because it has been laid down that what is indecent or riotous is a question of fact for the magistrate. These poor women do not know that they can appeal on fact to Quarter Sessions and have not the means to do so if they knew of this right. The whole system under which it is sought to put down prostitution is an elaborate hypocrisy and to my mind is a disgrace to a community which professes to be Christian. 1397 Those are pretty strong words from such an authority as a Metropolitan Police Magistrate, and I think they are bound to carry considerable weight with your Lordships.
I should like to make it clear that in bringing forward this measure in this way I am not making any attack upon the police. What I am attacking is the law which puts the police in an absolutely impossible position. The police are put in the position of having to decide and to act, and to have regard not to what these women do but what they are. That is the impossibility. The police are set up as a kind of censor moram to judge of people's character instead of confining their functions to arresting people if they do anything contrary to the law. It is no exaggeration to say that where these legal fictions are accepted by the magistrate women of this class are completely in a state of servitude. I do not say that the police abuse their powers, but that the position is one which is capable of very great abuse and I think it ought to be put an end to.
I have here papers relating to a case which took place only this summer in which a woman was convicted of being a common prostitute and the conviction was quashed on appeal. I shall not quote it to your Lordships or go into details regarding it because I very much hope that I shall not be represented as attacking the police. Any failures that have occurred are due to the inevitability that mistakes will occur. The police do their duty extraordinarily well, but under the existing system it is absolutely inevitable that mistakes should happen. Your Lordships will very soon realise that any mistake happening in such a matter as this may inflict irreparable injury on the unfortunate woman who is so dealt with.
Having shown, I hope, that something ought to be done, we come to the question of what form the reform ought to take. I think it is clear that the basis of any reform must be justice and also equal treatment for men and women. The question arises whether it is necessary to have special laws at all for dealing with these matters. If special laws are necessary, then I say that they must be the same both for men and women, but I myself and the promoters of this Bill, which is backed by a very 1398 large number of influential societies well versed in these matters, take the view that the general law ought to be sufficient and that special laws are unnecessary. It is on the basis of applying the general law that this Bill is founded.
If your Lordships will turn to the Bill you will see that Clause 1 merely repeals the present special laws. Clause 2 defines the offence for which proceedings may be taken and provides a penalty. Clauses 3 and 4 provide that evidence of annoyance must be given by the person annoyed. That is a very wide departure from the existing law and I recognise that it requires very full justification. As the principle of the Bill is involved in it, I think it is right at this stage to say a word about it. Before your Lordships consider whether it is practical politics to insist that this annoyance must be proved other than by police evidence, I would ask you to remember that in cases where men are accused of this offence public opinion will not tolerate that a conviction should take place merely on police evidence. In 1922 there were a number of cases of men who were arrested for annoying women in Hyde Park and one of them, in particular, went to the London Sessions and was dismissed on appeal.
In dismissing the case the Chairman of London Sessions, Sir Robert Wallace, said: The conviction was for wilfully annoying. That charge should be clearly understood to mean, not that the conduct which the constables saw was such as, in their opinion, ought to annoy, but that the person who was there was annoyed in fact. … Unless some person had made a complaint, a conviction under that section ought to be impossible. There were a good many comments in the public Press of the same character. One paper, the Daily Express, said—this was not appropriate to that case but it was to the Hyde Park cases— No complaint whatever was made against the man by any of the women who were alleged to have been interfered with. …. There must be something radically wrong with a police system which permits continued scandals of this kind. There your Lordships have a good illustration of the difficulty that the police are in. On the one hand they are blackguarded up hill and down dale by the Press if they make a mistake, and on the 1399 other hand they are called over the coals severely if they do not keep public order in the streets.
I really do not think it can be seriously disputed that, whatever evidence is required, it ought to be the same in the cases of offences by men and by women. I know that some people whose opinions are entitled to respect are afraid if this Bill became law that it would add so greatly to the difficulties of the police that no convictions would be obtained. They are afraid that solicitation would become rampant and that there would thereby be involved a great danger to young men. I do not think that is so. I believe that all that would happen would be that the sham offences would be done away with—those sham offences of annoyance—and in the event of a real offence taking place it would still be possible to get the necessary evidence. In considering the result you have to take into account the enormous improvement which has taken place in the streets in the last fifty years. We hear stories of what the position was in the 'seventies when, undoubtedly, the condition of the streets was such as would not be tolerated for a moment to-day. But that is an improvement which has taken place in every country in Europe, not only in this country but in every country, whether the countries are what are called regulationised countries or abolitionist—that is to say, whether they believe in the regulation of prostitution and the authorisation of these women to carry on their trade under certain restrictions, or whether, as in this country, all such regulations have been abolished and no official countenance is given to it.
Whatever the country, that improvement of the streets is universal in Europe. It is not due to any change in the law, because the law is exactly the same to-day as it was in 1870, but the improvement, of course, is due to the pressure of public opinion. Public opinion will not tolerate that sort of thing nowadays and the police have, of course, responded, as they were sure to do, to the pressure of public opinion. I believe that order is maintained now because of the pressure of public opinion and that it will continue to be maintained. I do not believe in the suggested danger to the youth of the country. The class of the professional 1400 street-walker is a disappearing one. The whole thing is changing its form. Nowadays young men and young women have a great deal more freedom and a great deal more knowledge, I suppose, than in any previous generation. I believe that the best protection for young people to-day is simply the advance of public opinion in favour of an equal moral standard and to secure that the first thing you have to have is an equal standard of justice in the administration of the law. So long as you have one law for men and another for women an equal moral standard is quite impossible to attain.
This change is a very big one, and I recognise that it is too big a change to be carried into effect as the result of a Private Member's Bill. Therefore, if your Lordships will give the Bill a Second Reading to-day, which I hope you will, I shall propose that some inquiry ought to take place in order to ascertain, not only how equal laws for rich and poor and for men and women of all classes can be obtained, but how they can be obtained in a manner compatible with the preservation of order and decency in the streets. I think the best form to suggest for the inquiry would be a Joint Select Committee of both Houses of Parliament. Therefore, if the Government will not oppose the Second Reading to-day, that is the course which I would ask your Lordships to adopt. With that in view I beg to move.

§ LORD DESBOROUGH
My Lords, I think perhaps it might shorten matters if I stated the position of the Government, without interfering with the debate. An appeal has just been made to me by my noble friend. I am grateful to him for the very temperate way in which he moved his Motion, but I suppose he will acknowledge that this Bill is founded on the same lines and may, perhaps, be identical with a Bill that was introduced in another place. I am sure he would be one of the first to admit that. Although this Bill has the support of a great many of those societies in which he is interested, yet even they were by no means unanimous in regard to the exact wording of the Bill. Therefore, if I state on behalf of His Majesty's Government—or at all events on behalf of the Department 1401 which is interested in this Bill—that the Government do not intend to oppose the Second Reading, I must make it clear that they do not wish to be understood to tie themselves down to the letter of the Bill or perhaps even to some of its main provisions as drafted.
It may be of interest to the House if I briefly state what has occurred in regard to this matter hitherto. This is a subject which has interested the Home Office for some considerable time and especially has interested—I think my noble friend will acknowledge this—the Home Secretary himself. On the 25th March last, in the House of Commons, in reply to a Question by Sir Robert Newman, who asked whether the Government had decided to appoint a Committee—I will come to that later on—to inquire into the law dealing with street solicitation, he said:— I am considering the terms of reference and the personnel, but my Department is at present very overworked, so I hope my honourable friend will not press me too urgently. I am sorry to say that, instead of the work becoming less, very shortly after that answer was given by the Home Secretary the work of the Department was very considerably increased by the outbreak of the General Strike and subsequently by the prolonged dispute in the mining industry. A state of emergency, as we all know, was declared and the administration of the Emergency Regulations and the numerous other matters arising in connection with the emergency have so fully occupied the Home Secretary's time that he has been unable to give such consideration as he had intended to give to this question.
On November 24 Sir Herbert Cayzer asked the Home Secretary whether he was now able to say if the Government had decided to appoint a Committee, and the Home Secretary replied:— It has not as yet been possible to proceed with the consideration of this matter, but I recognise its importance and it will not be overlooked. On the information which has reached the Home Office, it is clear that there is a very wide difference of opinion on the whole matter. I think my noble friend will acknowledge that. The police are certainly of opinion that if a complaint of annoyance were required in all cases 1402 before an arrest could be made solicitation would very greatly increase and they would have great difficulty in keeping a reasonable measure of order and decency in the streets. The police view of the matter—and it is rather obvious—is that there are very few men, young or old, who would wish to go into a court of law in a case of this character, partly because of the trouble and annoyance, and partly because they have no wish themselves to proceed against the woman. I think most people would be willing to acknowledge that. Many societies which are interested in public morals are also of opinion that the Bill as it stands might be harmful. In particular the National Vigilance Association, which has exceptional experience of this problem, is opposed to the proposed amendment of the law.
On the other hand the Home Office have received important representations that the present law is not satisfactory. It is because of the importance of the matter and the wide divergence of view in different quarters that the Home Secretary has been considering the question of an inquiry. As to the form of the inquiry—I know now the particular form my noble friend advocates—representations have been made in favour both of a Select Committee and of a Departmental Committee. My noble friend favours, I understand, a Select Committee. Some of those who are opposed to a Departmental Committee are apparently not quite aware what a Departmental Committee is, or at all events what it might be. In reply to a deputation which the Home Secretary received on this subject, he pointed out that a Departmental Committee did not mean merely a Committee of officials. Such a Committee could include persons from many quarters—for example, persons with legal qualifications, social workers, representatives of the police and of women's societies. It could also include members of both Houses of Parliament and the Home Secretary said he was inclined to think that such a Committee would be more useful for the purpose in question than a Select Committee, which must be constituted—or usually is constituted, at all events—on the basis of representation of the various political Parties, who may not be the best judges in matters of this sort.
1403 In present circumstances, and especially in view of the temporary indisposition of the Home Secretary, I can only assure the House that the importance of the matter is fully recognised and will not be overlooked by the Home Secretary, and ask that the Home Office should not for the moment be pressed for any immediate decision. It is hoped that in the early part of next year the Home Secretary, who is acknowledged to take a great personal interest in this matter, may be able to take it up and make some further announcement as to the course which he proposes to pursue. I can only repeat that, without pledging itself too much even to the principle of the Bill and certainly not to the details of the Bill, the Home Office does not take up the position that it should not be read a second time. When the Home Secretary returns the whole matter will no doubt receive his personal, and obviously his favourable, consideration.

§ LORD MUIR MACKENZIE
My Lords, after hearing the speech of the noble Lord who represents the Home Office in this House I need not detain your Lordships more than a minute. I was going to give a general support to this Bill and the reason why I thought myself entitled to trespass for a moment upon your Lordships' time is that I was Chairman of a Joint Committee of both Houses of Parliament which went into the subject. That Committee dealt with practically all except the last of the subjects dealt with in this Bill and we had much evidence and considerable discussion, to which some allusion was made by the noble Lord who introduced this Bill.
On certain aspects of it the Joint Committee was of a unanimous opinion—namely, as to the state of the streets and as to the state of the law. We realised what the noble Lord who represents the Home Office has said to-day, that there was great divergence of opinion about the matter and we did not, as far as I can recollect, make any definite representations upon that part of the Bill which was before us. But I think that we were unanimous in feeling that inquiry was necessary and that the matter was urgent and also that more information was desirable. In fact, we anticipated the views which the noble Lord has stated on this subject. I only desire to add that after hearing the noble Lord I think my noble friend who has 1404 introduced the Bill would do well to accept the position which he has foreshadowed.

LORD BALFOUR OF BURLEIGH
My Lords, I am very glad to hear the noble Lord who speaks for the Home Office say that he is not prepared to oppose the Second Reading of the Bill, and in view of what he has said I will do nothing further for the moment with regard to the appointment of a Select Committee. I would only like to say that I retain the view that a Joint Select Committee is a better tribunal for this kind of inquiry than a Departmental Committee, and in view of what he has said I hope he will give that point of view the best consideration he can.