SEXUAL OFFENCES BILL [H.L.]

HL Deb 16 July 1965 vol 268 cc403-46

11. 16 a.m.

Report of Amendments received (according to Order).

Clause 1:

Amendment of law relating to homosexual acts in private

1.—(1) Notwithstanding any statutory or common law provision, a homosexual act in private shall not be an offence provided that the parties consent thereto and have attained the age of 21 years.

(2) The commission of any such act when more than two persons are present shall not be deemed to be in private.

THE LORD CHANCELLOR (LORD GARDINER)

My Lords, I think I should draw your Lordships' attention to the fact that Amendments Nos. 1 and 2 are mutually inconsistent. While, of course, the first Amendment must be taken first, you may think it for the convenience of the House that those who have views on the second Amendment should be allowed to express them on the first Amendment.

LORD SALTOUN moved, in subsection (1), to leave out "21" and insert "25". The noble Lord said: My Lords, before I address myself to my Amendment, I think I should express my great gratitude to my noble friend Lord Iddesleigh for taking it for me, at a moment's notice, on the Committee stage and for having dealt with it so ably. I am sorry that I was unavoidably prevented from moving it myself on the Committee stage. This, as we know, is not a Government Bill. I understand that the Government dislaim any particular interest in it; but I should like to draw your Lordship's attention to the fact that we are sitting on a Friday, at very great inconvenience to a great many of us, and I think that that indicates that the Government take a great deal of interest in it.

THE JOINT PARLIAMENTARY UNDER-SECRETARY OF STATE, HOME OFFICE (LORD STONHAM)

My Lords, if the noble Lord will allow me to say so, this is not a matter of a decision of the Government. The decision to sit to-day was a decision of your Lordships' House, and was made at the request of the noble Earl, Lord Arran. We are not sitting to-day because of a Government decision; nor does to-day's Sitting give any kind of indication of the Government's views on this Bill which have been consistently neutral throughout.

LORD SALTOUN

My Lords, I am obliged to the noble Lord, and I accept what he says absolutely. In Bills dealing with sex, it seems to me that we have an overriding consideration: that it is our duty to do nothing in our legislation which can possibly impede the production of a civilised, healthy and vigorous generation to follow us. I have always taken this view in all these social problems. I have never felt that aberrations confined to people who were over childbearing or child-getting age mattered very much to the community as a whole. It is from that point of view that I am trying to judge this Bill, and I hope to take your Lordships with me. It seems to me that a great deal of our law and practice as regards sex is quite uncivilised. I would say that in many ways they were barbarous, but that I think primitive people whom we are accustomed to consider as barbarous often have a much better practice in these matters than we do. Had this Bill been inserted as a clause in a general measure to improve the law in all these matters I think my attitude to it would be different from what it is now. As it is, I am afraid that this Bill will do a great deal of harm, and it is from that point of view that I move my Amendment.

Owing to the misfortune of being a prisoner of war, I have been compelled to spend a great deal of my time among these gentlemen and I thought that I knew something about them. I also read a great part of a very ponderous German treatise published, I think, about 1914, dealing with this matter and giving, or purporting to give, the reasons why it arises in modern society; but I am bound to confess that the debates on this matter have shown me that a great many of your Lordships know a great deal more about it than I do. However, on one thing I think that we can all agree. It is that these people are a great people for proselytising. Their passions seem to be much stronger than those of normal people, and they cast their net very wide for their satisfaction.

The object of my Amendment is to protect young people from corruption. My legal friends have told me that this Bill does not do anything to remove that protection; that it is still an offence to corrupt a young man under the age of 21. It seems to me that to argue in that way is to lock oneself into an ivory tower, because the law will certainly be disregarded, and I am quite sure that the practice will be altered to the disadvantage of young people. I have been young myself and I have never lost touch with young people. I remember that the one thing that the young always strive for is to be older, to be of age, to be responsible and to undertake the responsibilities of a man. They want to be 21. They want to appear and to act as if they were 21. How many of your Lordships were promised some reward if you abstained from smoking until you were 21—and how many of you failed to earn that reward? Now, when your Lordships are going to offer young people these new and undisclosed delights, under the leadership of the noble Earl, how can anybody say that psychologically you are not facilitating the corruption of the young?

I do not agree in the least with what the noble Earl said at an earlier stage in the debates on this Bill, that these things do not matter at school. I think that they do. I well remember when I first went to school the warnings that I got from other people of my own age, and how we banded ourselves together to protect each other, feeling that we were immensely brave. Looking back, I do not think it really required the courage which we thought it did, but I want to express my debt to my old house master, Stuart Arthur Donaldson, who won the love and trust of his boys by always going about the house in his heaviest boots, and the trust he showed was rewarded.

THE EARL OF ARRAN

My Lords, I must interrupt the noble Lord to say that I never said it did not matter in schools. I only said it was a habit which, if it took place, was quickly got out of and had no lasting effect. I never said it did not matter in schools; it matters very much.

LORD SALTOUN

My Lords, I am very glad to hear that. It was not the impression which the noble Earl gave to me.

THE EARL OF ARRAN

It is what I said.

LORD SALTOUN

Of course, I accept that. It brings me very nicely to the last point I wish to make. The worst of this sort of thing is that it makes its participants less suited for normal marriage. I am not going entirely on my own observations in this matter; I have also been told so by doctor friends in the old days.

I do not know whether any of your Lordships are really proud of our divorce statistics. I am not at all proud of them. I think this a very important reason for raising the age and I am going to ask your Lordships to support me, if necessary in the Division lobbies. It is a case of solvatur ambulando.

Since this matter came before your Lordships I have discovered two things which surprised me a good deal. One is that your Lordships' Hansard is very much more widely read than I thought. One friend of mine told me that he prefers it to Agatha Christie any day; and that, I think, is almost approaching fame. The other thing I have discovered is that the proceedings on this matter are being followed in the country with very great interest. I am sorry to say that I am afraid the loftiness of your Lordships motives is not everywhere appreciated as it ought to be, but I am quite sure that in later times parents who have reason to deplore the evils which I have tried to depict will scan our Division Lobby records to see which of your Lordships exerted yourselves to protect their children.

Amendment moved— Page 1, line 8, leave out ("21") and insert ("25").—(Lord Saltoun.)

11.27 a.m.

THE EARL OF HUNTINGDON

My Lords, I understand that I cannot at this point move my Amendment, to leave out "21" and to insert "18", but I should like to speak to it and also to the Amendment of the noble Lord, Lord Saltoun. I saw that the noble Lord was going to move his Amendment, it having been withdrawn before, and on consideration, I thought it would be wise to do the same. In fact, the more I thought about the matter since the last Committee stage discussion on this Bill, the more convinced I became that it would be wise, logical and just to reduce the age, as I propose, to the age of 18.

I have no intention of repeating what I said during the last Committee stage discussions, but I should like to remind your Lordships of two facts. One is that in the Wolfenden Report the subject was divided into four sets of considerations. In two of them it was suggested that the age of 16 would be right. In one it was suggested that it should be under 18, and only in one set of considerations that it should be 21. This last, as I argued before, seemed to me to have the weakest arguments to support it. In the summary the Report quoted the question of National Service as having a big im- portance, but that no longer exists. To paraphrase what was said (I can read out the passage from the Report if noble Lords wish), it was not that the Committee thought that by lowering the age to 18 more young men would indulge in homosexual practices; the argument was that some might be more liable to be corrupted and would have a weaker line of resistance if the age were reduced to 18. I wish to remind your Lordships of that. The other thing in the Report about which I would remind your Lordships, and which I think very important, is that the medical witnesses unanimously confirmed that a man's sexual inclinations were fixed from a very much earlier age than 16. Most people think that it is fixed in early infancy. No one knows whether it is hereditary or because of some effect of childhood; but certainly, it is fixed at an early age.

What I did not Jay last time, though it came to me upon reflection, is this. Rereading the Hansard reports of the debate during Second Reading and the Committee stage discussions, there seemed to me an implication in some of the speeches by some noble Lords, though it was not overtly stressed. With the greatest respect to your Lordships I think that your Lordships did underestimate the attraction of heterosexual activities. It seemed to me that some of your Lordships felt that if a young man was once introduced to the delights of homosexuality, he would be drawn away from his natural heterosexual inclinations. I suggest, with due respect, that that is absolute nonsense. The confirmed heterosexual is no more likely to enter into a homosexual relationship than the other way round. What he wants is a woman, and he is not going to be side-tracked into this curious activity which is antagonistic to his basic character.

I would place into four classes those who might be affected by the reduction of the age of consent to 18. The first category is the born homosexual, or the homosexual from childhood: these people, obviously, are not going to be affected whether the age is 18 or 21. Such a man is that way, and nothing we can do is really going to make any difference. We may curb his activities, but we cannot stop them. Secondly, there is the heterosexual, who is not going to be influenced one way or another. He is going to pursue his ordinary sex life. Then there are the two categories that may be affected. There are the young men—a small group, relatively, to the others—who may be called border-line cases and who may possibly be persuaded to become homosexual rather than heterosexual. The last category is the person who is corrupt. We all know that there are men and women who will do a lot for money or advantage. A woman will sleep with a man for a fur coat, for a job on the films and for money; and there are young men who will do the same. I suggest to your Lordships that no legislation of this kind is going to curb that. A person who is corruptible and corrupted is going to do things for money, and I think that it would be wrong to legislate in the vain attempt to make people of this kind virtuous.

The last point I want to make is that it is ridiculous that the age of consent for a girl should be 16, and for a much more responsible man, 21. I do not want to labour this point, because all the arguments were put forward on Committee stage, but it is pertinent that there has been for a long time throughout the country a serious feeling that 21 is much too old for the age of adulthood, when a man can sign contracts, raise a mortgage or marry without his parents' consent. Indeed, as your Lordships will know, my noble and learned friend the Lord Chancellor has announced that a Government Committee, under Mr. Justice Latey, is going to sit on this very question of whether the age should be reduced to one which is more suitable at the present day, when people mature at an earlier age than ever before. If that is likely to happen, it seems to me folly, in this one respect, to put the age up to 21.

What are the drawbacks of not reducing the age to 18? One of the main aims of the Bill is to reduce the blackmail which is so prevalent in homosexual cases. Obviously, the more people subject to the threats of the law, the greater the possibility of blackmail. I am sure that your Lordships will all agree that blackmail is a detestable crime. If we can curb that and get rid of it to a large extent by means of this Bill, that alone will be worth all the trouble we are taking.

It is bad, wrong and undesirable to send young men from 18 to 21, who in other respects are good citizens, doing a good job of work and making their careers, to prison because they have had one lapse, and so to ruin their careers and their lives completely. It is all very well for people to say that these young men should restrain themselves until they are 21. Imagine the opposite point of view, if ordinary heterosexuals were told that if they even looked at a girl, or were found kissing a girl, they would be sent to prison and their careers ruined! At that age, the sexual desires are probably at their strongest, and it seems to me terrible that we should turn these young men into criminals for doing what is, to them, their natural inclination. I hope that I have helped to convince your Lordships that it would be wise to reduce the age to 18 rather than keep it at 21.

11.37 a.m.

BARONESS GAITSKELL

My Lords, with the greatest respect to the age and wisdom of the noble Lord, Lord Saltoun, I should like to speak against this Amendment. My reasons are these. First of all, young people become mature these days much earlier than they used to. We send our young men out to fight and die at the age of 18 and we give them the vote at 21. As my noble friend Lord Huntingdon has said, people are clamouring to lower the age for having the vote and for all sorts of legal definitions. But people are familiar with this figure of 21. I hope that your Lordships will leave it at 21. I am not even in favour of lowering it, because it is now the customary age.

The noble Lord, Lord Saltoun, lives in an ivory tower, if he thinks that proselytising is peculiar to homosexuals; he must know that this happens with many heterosexuals. There are all kinds of corruptions which take place between men and women. When the noble Lord says that proselytising is a peculiarity of homosexuality, I entirely disagree. Having heard noble Lords with whom I disagree about the subject, it seems to me that I have a much greater confidence in the non-corruptibility of our young people than they have. So I hope that this Amendment will not be carried in this House.

LORD BROCKET

My Lords, I should like to add a few words in support of the noble Lord, Lord Saltoun. Like other noble Lords, I have had a large post since the earlier stages of this Bill. As I said before, if the Bill ever becomes law, which I devoutly hope it will not, young people in their teens will be able to say that as soon as they are 21 this act of perversion—I must call it that—will be legal. I feel that it must be an encouragement to young people to do this act earlier.

The noble Lord, Lord Saltoun, mentioned the interest in Hansard. I am sorry to say that on June 21 we heard from the most reverend Primate the Archbishop of Canterbury about the various methods of doing this. I am told that Hansard of that day had an enormous sale. I believe it sold even better than the books on such subjects in the bookshops. I am sorry to say so, but I very much resent that sort of thing happening as a result of our debates in your Lordships' House; I think it depreciates our position in the country.

THE LORD BISHOP OF CHICHESTER

My Lords, I would merely point out that what was said in the debate had already been published in print in the Wolfenden Report itself, and therefore there was nothing new about it.

LORD BROCKET

So far as I am concerned, I am afraid I got my information quite new from the most reverend Primate the Archbishop of Canterbury in column 302 of the debate on June 21.

THE LORD ARCHBISHOP OF CANTER-BURY

My Lords, remarks have been made about the propriety of my contribution to your Lordships' debate in Committee. May I say that, with great reluctance, I spoke frankly and plainly on these matters, because one must speak frankly and plainly when the matter at stake is the difference between a sentence of two years and a life sentence.

LORD BROCKET

Well, I still say, as an ordinary member of the Church of England, that I am sorry that things of this kind are brought up in this House by the Leader of my Church.

If I may get back to the question of "25", we heard the other day on the debate on crime that males go through a period of delinquency during their teens. believe that this is so regarding homosexuality. We have many eminent doctors in this House and they can speak on this subject. I find, from speaking to friends of mine who are doctors, that the proportion of those who are born homosexual and, therefore, continue on those lines, is comparatively small—maybe 15 per cent. Then there are a lot of doubtful cases, some of which go one way, towards perversion and some another way, towards ordinary heterosexuality. This is a question for doctors. I feel that if we are able to give these youths the extra few years to consider this matter it will be good for their morals.

One other matter I might mention is that, also in the debate on June 21, one of the right reverend Prelates said that the Church was overwhelmingly in favour of the Wolfenden Report. I read a letter in The Times shortly afterwards, and I think the majority was 17, which is scarcely an overwhelming majority. I hope that these matters will be given their proper proportion.

As regards Lord Saltoun's suggested extension to 25, this would give young people who might be tempted another four years before this becomes legal. I wish to support the noble Lord, Lord Saltoun.

LORD CHORLEY

My Lords, may I ask the noble Lord whether we are to gather from his reply to the right reverend Prelate that he has not read the Wolfenden Report on this matter?

LORD BROCKET

I have not read the whole of the Wolfenden Report, because, quite frankly, I have always known its general principles. It will be remembered that during the time of the last Government we legislated and passed measures with regard to street offences, and the last Government did not bring in a measure with regard to the matter we are discussing today.

LORD FRANCIS-WILLIAMS

My Lords, may I remind your Lordships that what we are concerned with in this Amendment is simply a definition of what is an adult. The general principle of the Bill, surely, is that this is a question of an act between consenting adults, and the Bill, as it at present stands, takes and uses what is for electoral and other purposes accepted as the age of adulthood, which is 21. It seems to me that no great principle is involved here; it is simply a definition of what is an adult, and the right thing is to accept the definition of an adult which is generally accepted.

VISCOUNT DILHORNE

My Lords, I had not really intended to speak in this debate, but there is one aspect which I think should be considered and which has not yet been raised in the course of the discussion. The noble Lord, Lord Saltoun, said that the object of his Amendment was to protect young people from corruption. In the course of our earlier debates, I drew attention to the fact that if the Bill was passed in its present form, consent could be procured to the commission of homosexual acts by bribery, gifts and matters of that sort, and I put down an Amendment with the intention of trying to secure that consent so obtained should not operate to make the acts which followed lawful. That particular Amendment was supported by my noble and learned friend Lord Kilmuir, and the most reverend Primate expressed his intention of voting for it. When the Division came, I observed that he did not vote. He never explained his reasons for not doing so. The argument was that you should not distinguish in law between male prostitutes and female prostitutes. I am not by any means convinced that that is a valid argument. If by this Bill we are opening the door to male prostitution, then it seems to me that there is something to he said for drawing such a distinction.

The question is what age should be inserted in the Bill. I do not agree with the noble Lord, Lord Francis-Williams, that this should just depend upon the age at which a man is treated as an adult. I ask your Lordships to consider whether it would not offer more protection to young people against corruption if the age was increased to 25 from what it now is. The noble Earl, Lord Arran, has not to-day expressed his views upon this matter. He has only intervened to ascert that habits formed at school are quickly got out of, and have no lasting effect. I should have thought that this was a very arguable proposition. Surely, there is something to be said for putting in the age of 25, because if you do that, it will stop youths of between 21 and 25—and some of them are very young for their age—from being corrupted by men much older than themselves.

I make no complaint of the most reverend Primate's speaking as he did with considerable frankness in the course of our last debate. But I must say that I thought it rather a reflection on his speech for the right reverend Prelate the Bishop of Chichester to say that the most reverend Primate had said nothing which has not already been published in Wolfenden. I must say that I thought that statement was as overwhelmingly inaccurate as the assertion that the Church Assembly had been overwhelmingly in support of this proposal.

THE LORD BISHOP OF CHICHESTER

My Lords—

VISCOUNT DILHORNE

Perhaps I might just finish with this passage. Which Bishop it was who made that statement, I find it difficult to know, for this reason: it was attributed to the right reverend Prelate the Bishop of Lincoln in Hansard; a later edition of Hansard corrected it to the right reverend Prelate the Bishop of Chichester; and then a letter appeared in The Times, signed by the Bishop of Lincoln, in regard to that matter. But the facts are that it was carried by a very narrow majority, and a great many members of the Church Assembly never voted. I think it unfortunate that when my noble friend Lord Rathcavan was speaking he was interrupted by an insertion of that nature, which was patently incorrect, and which has never been corrected in your Lordships' House.

I do not myself recollect—it may be there—anything in Wolfenden to support the statement that there was no distinction to be drawn between different forms of homosexual intercourse. I do not remember anything of that sort in Wolfenden. Indeed, there are passages in Wolfenden which indicate that the Committee take a very contrary view.

THE LORD BISHOP OF EXETER

May I ask the noble Viscount to look at paragraph 105 of the Wolfenden Report?

VISCOUNT DILHORNE

Certainly I will look at paragraph 105. I will not take up time by reminding the noble Lord of the passages which draw a distinction between buggery and the others. But I do not see anything in paragraph 105 which says that there is no distinction to be drawn between different forms of intercourse. I do not find in that paragraph anything which was repeated by the most reverend Primate in the course of his speech.

I come back to this particular point. The most reverend Primate was dealing with the question of gravity of offences, and he was saying that it was impossible for him, without usurping the functions of the Almighty, to express a view as to which type of offence was the most grave. That may be so, but unfortunately Her Majesty's Judges have to decide upon the gravity of offences when considering what is the appropriate sentence to pass. I certainly could not share the view put forward by the noble Earl, Lord Huntingdon, that blackmail is a more serious offence than some offences of a homosexual character. Nor is it right to say, if the noble Earl refers to blackmail, that blackmail, however prevalent it is, is solely due to the fact that homosexual conduct is at the present moment a criminal offence. I have referred earlier to the passages in Wolfenden which support that, and I also drew attention to the fact that many people hold the view that this Bill in its present form, if passed, will not shut but open wider the door for blackmail.

May I come back to this particular question? If we are concerned—and I hope that the most reverend Primate and the right reverend Prelate are concerned—to prevent the corruption of the young, whether they are corrupted by the offer of gifts or not; if we are concerned to see that this Bill does not result in an increase of male prostitution, then I must say that I think there is a great deal of force behind the Amendment moved by the noble Lord, Lord Saltoun, and if this Bill is ever enacted it may be that, in the light of experience, the age should be reduced. I do not know. But if we are starting at this, it seems to me that there is a great deal to be said for the object behind this Amendment, of protecting young people from corruption, and I would certainly support the Amendment in the Lobby.

THE EARL OF ARRAN

My Lords, in speaking to this Amendment, may I first of all thank your Lordships for coming today, both those who favour the Bill and those who oppose it? As has been said, I know that it must be very inconvenient for many of your Lordships. It shows how much importance this House attaches to this measure of social reform. With regard to the Amendments themselves, I will not repeat what I said in Committee on this matter. Suffice it to say that I feel that a man has to come of age some time emotionally, as in any other aspect of his life. At the moment, 21 is normally regarded as the age of maturity, and I should have thought that about right. The Wolfenden Committee, after much heart-searching, thought the same.

I must oppose this Amendment. The purpose is excellent, and I appreciate the high intent of the noble Lord, Lord Saltoun. But you cannot keep young people permanently in the cradle. With regard to the Amendment of the noble Earl, Lord Huntingdon, again I am not going to repeat what I said in Committee. Frankly, I have more sympathy with it than I have with the Amendment of the noble Lord, Lord Saltoun—it is at least logical. Why should the age of consent be 16 for girls and 21 for boys? It is utterly absurd. After all, as I said last time, girls can, and do, have babies, and boys do not. All the same, I feel that I cannot support his Amendment, and if it comes to a Division I shall abstain. Later on, if this Bill should become law, and if experience shows that we are being over-cautious, then there may be fresh legislation. Meanwhile, until we know where we are, I would recommend "playing it safe."

LORD SALTOUN

My Lords, may I trespass on your Lordships time for one moment? I should like to answer what the noble Lord, Lady Gaitskell, said. She said that if you do not find fault with a young man for going to bed with a young woman before the age of 21. why should you object to homosexual practices? She wanted to put them on a level. I can explain that perfectly clearly to her, and the explanation is this. My whole position on this Amendment is that I want to leave a civilised and vigorous generation to follow us. It does not in the least impede or impair that object that a young man goes to bed with a young woman—in fact it probably facilitates it—whereas the practice that is now advocated does exactly the reverse. I do not quite share the noble Baroness's opinion about maidenhood. I remember there was one fortress in Europe which was called the Maiden Fortress. It was the fortress of Peronne,

THE EARL OF HUNTINGDON

My Lords, I beg to move.

Amendment moved— Page 1, line 8, leave out ("21") and insert ("18").—(The Earl of Huntingdon).

On Question, Amendment negatived.

THE EARL OF ARRAN moved to leave out subsection (2) and insert— ("(2) An act which would otherwise be treated for the purposes of this Act as being done in private shall not be so treated if done—

1. (a) in the presence of persons other than the parties to the act; or

and an ancestor of mine was concerned in the taking of Peronne.

12 noon.

On Question, Whether the said Amendment (No. 1) shall be agreed to?

Their Lordships divided: Contents 40; Not-Contents 62.

CONTENTS
Allerton, L.	Forster of Harraby, L.	Merrivale, L.
Alport, L.	Goschen, V.	Mersey, V.
Ampthill, L.	Grenfell, L.	Milverton, L.
Auckland, L.	Grimston of Westbury, L.	Monsell, V.
Barnby, L.	Hawke, L.	Oakshott, L.
Blyton, L.	Hereford, V.	St. Helens, L.
Bossom, L.	Hobson, L.	Salisbury, M.
Brentford, V.	Horsbrugh, Bs.	Saltoun, L. [Teller.]
Brocket, L. [Teller.]	Iddesleigh, E.	Shannon, E.
Brooke of Ystradfellte, Bs.	Kilmuir, E.	Shepherd, L.
Dilhorne, V.	Kirkwood, L.	Uvedale of North End, L.
Dudley, L.	MacAndrew, L.	Williamson, L.
Effingham, E.	Mancroft, L.	Wolverton, L.
Falkland, V.

NOT-CONTENTS
Ailwyn, L.	Emmet of Amberley, Bs.	Norwich, V. [Teller.]
Archibald, L.	Erroll of Hale, L.	Ogmore, L.
Arran, E.	Exeter, L. Bp.	Plummer, Bs.
Attlee, E.	Faringdon, L.	Ponsonby of Shulbrede, L.
Beswick, L.	Ferrers, E.	Queensberry, M. [Teller.]
Boston, L.	Francis-Williams, L.	Rea, L.
Boyd-Orr, L.	Gaitskell, Bs.	Reay, L.
Burton of Coventry, Bs.	Gardiner, L. (L. Chancellor.)	Ritchie of Dundee, L.
Byers, L.	Gifford, L.	St. Davids, V.
Caccia, L.	Gladwyn, L.	Samuel, V.
Canterbury, L. Abp.	Greenway, L.	Segal, L.
Chichester, L. Bp.	Hertford, M.	Shackleton, L.
Chorley, L.	Huntingdon, E.	Sherfield, L.
Chuter-Ede, L.	Jessel, L.	Silkin, L.
Clwyd, L.	Latham, L.	Sinha, L.
Cohen of Birkenhead, L.	Listowel, E.	Southwark, L. Bp.
Colwyn, L.	Lloyd of Hampstead, L.	Stonham, L.
Coventry, L. Bp.	Longford, E. (L. Privy Seal.)	Strang, L.
Cranbrook, E.	Maugham, V.	Terrington, L.
Devonshire, D.	Meston, L.	Twining, L.
Drumalbyn, L.	Monson, L.

Resolved in the negative, and Amendment disagreed to accordingly.

(b) in a lavatory to which the public have or are permitted to have access, whether on payment or otherwise.")

The noble Earl said: My Lords, the purpose of the first part of this Amendment is to meet the wishes of the House as expressed on Committee stage, that a homosexual act shall not be deemed to be in private if committed in the presence of others. I am advised that the wording here in no way alters the sense of the Amendment moved by the noble and learned Viscount, Lord Dilhorne, in Committee. Indeed it subsumes it. Perhaps I should say that this and most of the other Amendments before your Lordships today have been drafted by Parliamentary experts, and I am deeply grateful to them and to those who have made it possible to ask for, and to receive, their help.

The second part of the Amendment is intended to make it clear that a lavatory, which, because payment had been made for its exclusive use might otherwise be deemed private, shall not be private for the purposes of this Act. Quite clearly it is not. Our previous endeavours to define "a public place" did not meet with general favour in Committee but it has been thought right to insert this particular provision in order to avoid any difficulties of interpretation which might otherwise arise. On the more general question of what is "a private place" and what is "a public place" I understand that is something which the courts have long experience in deciding.

I do not think, and the Wolfenden Committee did not think, that any real difficulty should be placed in the way of dealing with behaviour which constitutes an outrage on decency, if we refrain from attempting to particularise further than has been done in this Amendment. I beg to move.

Amendment moved— Page 1, line 9, leave out subsection (2) and insert, the said new subsection.—(The Earl of Arran.)

12.10 p.m.

VISCOUNT DILHORNE

My Lords, I think this is a most astonishing Amendment for the noble Earl to move. The Committee came to a conclusion on an Amendment that I moved, the language of which is clear and I think absolutely precise, and now without a word to me the noble Earl puts down an Amendment which he says subsumes the Amendment that was carried into this Bill by the House. He says it is drafted by Parliamentary experts—he does not reveal who they are—and he asserts, quite incorrectly, that it makes no difference in sense to the Bill. This is one of the more astonishing proceedings in the proceedings which are already astonishing on this Bill. Your Lordships will remember that when I moved that Amendment in Committee it received support, for which I was most grateful, and still am, from two enthusiastic supporters of this measure, the most reverend Primate and the noble Lord, Lord Boothby. That had no effect then on the noble Earl, Lord Arran. He opposed that Amendment and he voted against it, and now having arranged to take the Report stage of this Bill on a Friday he seeks to reverse that decision of your Lordships' House.

I must say I wish he would make clear what is his object in asking your Lordships to take the Report stage to-day. It is, I think, common knowledge that even should this Bill pass through your Lordships' House this Session there is not the slightest possibility of its passing through another place this Session, and so there is not the slightest chance of this Bill being enacted. The noble Earl would be unwise to assume that if this Bill were passed by your Lordships' House this Session it would on that account have an easier passage next Session, for many Members of your Lordships' House may treat the Bill, if it is reintroduced next Session, much more seriously than they do now.

Now, after a long Committee stage, which followed a Second Reading when the noble Earl said that he merely wanted an expression of opinion that the law should be altered, he is seeking to reverse a decision of your Lordships' House, and he moves to leave out from the Bill what was carried into it on a Division, and to insert in its place that the act shall not be treated as done in private if done in the presence of persons other than the parties to the act". I ask your Lordships to consider that the word is "persons". Presumably it is deliberately put into the plural. The noble Earl asserts that no change is being made, but I think a very important change is being made by this wording. He is seeking to make it lawful to commit an act of homosexuality provided there is not more than one spectator. and still he asserts that this Amendment is of just a drafting character.

And then your Lordships will see that the phrase is "parties to the act". do not propose to go into details of the various kinds of acts which may be performed. Your Lordships' attention has already been drawn to paragraph 105 of the Wolfenden Report, which specifies some of them. It does not say that no distinction should be drawn between them. There is no foundation in the Wolfenden Report for that assertion. But where there are acts of gross indecency there may be more than two parties to those acts; and there have been cases of that character. And what the noble Earl is now suggesting is that we should agree to a provision which would make it possible to have a homosexual party, without any limit as to numbers, provided that they are all participating in the acts and provided there is not more than one spectator. And he has the nerve to come and say that this Amendment, drafted by Parliamentary experts, makes no difference to what your Lordships inserted in the Bill! I must say that it seems to me rubbish.

I do not know why the noble Earl has thought it necessary to put down this curious definition of a lavatory. I should have thought, if he wanted to refer to it at all, that all that would be necessary would be to refer to public lavatories. After all, surely there is no need to define them. What is required, if any more is required in addition to what is already in the Bill, is a provision that a homosexual act shall not be deemed to be in private if it is committed in a place to which the public have access. That, I think, would be a desirable Amendment. But I have not tabled at this stage any Amendments to this Bill. I have certainly not been encouraged to do so by the noble Earl.

I drew attention a few moments ago to the fate that the Amendment designed to prevent the encouragement of male prostitution met. I do not propose to invite the House to divide against this Amendment. I am perfectly prepared to let the noble Earl make as much as a nonsense of this Bill as he wishes. I will reserve my fire to the later stages. I propose to say something on the next Amendment, but so far as this Amendment is concerned, I rise to my feet only to make it absolutely clear that if the noble Earl really thinks that this Amendment is a drafting Amendment, and does not alter the contents of what is already in the Bill, then he is misleading your Lordships.

LORD CHORLEY

My Lords, I do not want to speak on the Amendment, but I must say that I resent very much—and I am sure other Members of your Lordships' House resent very much—being told by the noble and learned Viscount that we are not taking this matter seriously. He knows perfectly well that Amendments have gone into the Division Lobby on several occasions and been defeated by larger majorities than have been normal in this House for a very long time. This House has been taking the matter very seriously indeed, and I resent very much the noble Lord's suggestion.

VISCOUNT DILHORNE

I was not saying that those who took part in the debates were not taking it seriously. I said that some of the Members of the House might take it more seriously.

12.18 p.m.

LORD STONHAM

My Lords, the noble Earl, Lord Arran, in introducing this Amendment, mentioned that it had been drafted by Parliamentary experts. In fact, this Amendment and all the remaining Amendments on the Marshalled List, except that to Clause 3, standing in the name of the noble Lord, Lord Rea, were also drafted by Parliamentary Counsel and were made available to those noble Lords in whose names they have been put down. This follows the promise which I made earlier, that after the Committee stage had been completed—and I was pressed on this particularly by the noble Lord, Lord Boothby—the Government would take stock of the position of the Bill and consider whether drafting assistance could be given. The upshot was that we decided it would be right to draft the Amendments needed to give effect to changes proposed in Committee and which appeared in debate to have the general approval of the House.

As your Lordships know, it was found in Committee, on a number of Amendments, that although there was agreement in principle on what should be done, the Amendment moved was imperfectly drafted and had to be withdrawn for revision. The Government thought it would be appropriate to help with the redrafting of the Amendments, so that the House could reach a decision on the issue involved without the frustration of drafting difficulties and the waste of time that they might well involve. I must make it clear that this drafting assistance should not be taken as implying Government support for the objects of the particular Amendment under consideration. As I have already indicated, the Government will continue to be neutral on all policy issues raised in this Bill. Nor should it be assumed that these Amendments necessarily represent the Government's final view on the details involved. We have simply done what we could in the time available to provide the Amendments which appear to be genuinely desired.

VISCOUNT DILHORNE

My Lords, may I ask the noble Lord, when he says that, where he can point to any expression of criticism of the drafting of the Amendment which I moved and which was carried into the Bill? It is perfectly clear and as he himself is asserting, the new draft does not alter the meaning.

LORD STONHAM

My Lords, if the noble and learned Viscount will allow me, I will come to that point. But I hope your Lordships will appreciate that what I have said so far applies generally to all Amendments on the Marshalled List, except the ones that we have just considered, Amendments Nos. 1 and 2 and the one in the name of the noble Lord, Lord Rea. But I was saying that we have simply done what we could, in the time available, to provide suitable drafting for the Amendments which appeared to be genuinely desired by your Lordships, in order that the wishes of the House should not be frustrated by the legal technicalities. In general, I would add that each Amendment follows closely on an actual recommendation of the Wolfenden Committee.

I come to the particular Amendment moved by the noble Earl and to the observations which the noble and learned Viscount made on it. I am speaking from recollection, not having had the opportunity to look up the debate; but it is not within my recollection that any objection was made to the noble and learned Viscount's Amendment on the grounds of drafting—and indeed, one would have thought that any lay Member of this House, or indeed any learned Member, would have had great temerity had he made such a criticism. I have no wish—and it would be quite improper of me—to enter into this discussion which he has had with his noble friend.

I would now refer to the substance of the Amendment. In their report the Wolfenden Committee said that it was their intention that the law should continue to regard as criminal any indecent act committed in a place where members of the public might be likely to see it and be offended by it. I am sure that it is within the recollection of the House that we had a full discussion on this matter, and that the noble and learned Viscount moved an Amendment which was carried on a Division, and therefore must be taken as expressing the view of the Committee. In Committee, also, the noble Earl, Lord Arran, proposed an Amendment which defined "in private" as a place which is not a public place, and he then sought to define the term "private place". The particular Amendment which we are now discussing has been devised by Parliamentary Counsel, not, as I understand it, with any intention whatsoever of, as the noble and learned Viscount said, seeking to reverse the decision—

VISCOUNT DILHORNE

My Lords, I would not for one moment suggest that Parliamentary Counsel would seek to reverse a decision of this House. I should like to make that perfectly clear. But I do think that it is an extraordinary procedure that while Parliamentary Counsel, quite properly, were asked to look at the Bill and its draft Amendments, the noble Earl, Lord Arran, whose Bill it is, should table this Amendment, which in my view does change the law as contained in this Bill, without saying a word to me before-hand.

LORD STONHAM

That is entirely a matter for the noble Earl, Lord Arran, and I have, in a somewhat difficult situation, tried to discharge all the responsibilities which I felt were due to me in this matter. I hope that the noble and learned Viscount is not suggesting that there is any discourtesy on my part.

VISCOUNT DILHORNE

My Lords, I am not doing that for one moment. I know well that if the assistance of the Parliamentary draftsman is provided he will look at the Bill with care, and he will have to consider Lord Arran's attempt to draft a definition of a public place. But the point I am making—and it is a point of substance—is that, as I see it, the first part, which we are told was meant merely to subsume the part which had been carried into this Bill, does in fact change the effect of the Bill.

LORD STONHAM

My Lords, the noble and learned Viscount may be quite right that it changes the effect of the Bill. But I hope to demonstrate to him that, even from the point of view that he puts forward, it is a beneficial change and implements more surely the purpose he had in mind. I can only put it to him according to the advice I have been given, and I am sure he will consider it on that basis. We felt in connection with the word "private" that it was best to start by considering what places would be reasonably certain not to be regarded by the courts as "in private" if no comprehensive definition were attempted in the Bill. On this basis we feel that the courts will have no difficulty in deciding that homosexual acts are not committed in private if they are committed in places where the public may go or in places which can be readily seen by the public. This covers most of the instances mentioned in the discussions which we had in Committee on the Bill, with the exception of acts committed in private premises in the presence of others, and acts committed in a cubicle in a public lavatory. That is why this Amendment has been drafted so as to ensure that these two classes of case are not regarded as being in private, and it in no way prevents other places from being held by the courts to be in private or not in private, according to the natural meaning of these words.

The first point—that is, the first point of the Amendment—was in our view the one covered by Lord Dilhorne's Amendment in Committee, which provides, as the Bill now reads, in Clause 1(2) that The commission of any such act when more than two persons are present shall not be deemed to be in private. But, with respect, it is thought that this Amendment which the noble and learned Viscount moved and which was carried in Committee may leave the clause defective in two respects. The first of those two respects is that it refers to more than two persons being present. This implies that the persons who commit the act are merely present, whereas they are in fact parties to the act. I know that the noble and learned Viscount made some play with the word "person" but I am sure he is aware that by the Interpretation Act the plural includes the singular.

VISCOUNT DILHORNE

My Lords, I fully appreciate the terms of the Interpretation Act, but where you deliberately put a clause in which puts it in the plural and says "persons" I think the court will give effect to that and say that that is done deliberately. May I point out to the noble Lord that whilst it is quite true that my clause does, and did deliberately, refer to two persons, there is no distinction drawn between those two persons and the two parties to the act. If there are more than two parties participating in an act of a homosexual character, for the purposes of a definition—and I did it deliberately—I said that will not be regarded as in private, even if it is in a private room. It will only be regarded as in private if there are two persons, and not more than two persons, present and participating. There can be no spectators. I think that the Amendment as drawn alters what the House decided on.

LORD STONHAM

My Lords, I have the greatest respect for what the noble and learned Viscount says. I remain unconvinced. I do not think that at the end of the day he can come to any other view than that we have enshrined the principle of what he put forward in Committee and which the House endorsed but at the same time have removed by this Amendment defects which were in the Bill. In regard to the point about "persons"—and I mentioned the Interpretation Act—if one other person is present the act will be treated by the Amendment which we are now considering as done in public, which wholly meets the point which the noble and learned Viscount just put to me.

VISCOUNT DILHORNE

My Lords—

LORD STONHAM

May I finish my sentence? This meets the point the noble and learned Viscount has made, which was that if it were in a room and more than two persons were present it would, in his view, be in public.

VISCOUNT DILHORNE

I think that the courts would be likely to take the view that the insertion of the word "persons" was quite deliberate and that it was meant to exclude the clause operating where it was in the presence of one person other than the parties to the act. Otherwise, I can see no point in putting it in in the plural. If it said "in the presence of a person other than the parties to the act" that would coincide, but the word "persons" has been put in in the plural. That is a separate point from the point in relation to parties.

THE MINISTER WITHOUT PORTFOLIO (LORD CHAMPION)

My Lords, may I remind the House that we are on the Report stage, not the Committee stage, of the Bill, and that therefore interventions must be very limited?

LORD STONHAM

My only purpose is to, as it were, ascertain the facts. I am not expressing an opinion as to the principle of this Amendment. I am merely stating that I should be surprised to learn that at the end of the day the principle which has already been accepted by your Lordships would be any different. Of course, I must acknowledge the noble and learned Viscount's view as to what the courts might be likely to decide, but again I am advised by the Interpretation Act that the plural includes the singular unless the context otherwise requires. There is nothing in the context which requires a contrary construction, and it is therefore difficult to see how the courts could say otherwise.

If I may return to the point I was making, the present Amendment we are considering is limited to ensuring that these two classes of case which I have mentioned are not regarded as being private. It in no way prevents other places from being held by the courts to be in private or not in private according to the natural meaning of the words. I mentioned the first of the defects which we considered were enshrined in the clause as it now stands. For clarity's sake, I will repeat it. The clause as it stands says: The commission of any such act when more than two persons are present shall not be deemed to he in private. We think, first, that it refers to more than two persons being present. This implies that the persons who commit the act are merely present, whereas they are in fact parties to the act. We realise that the noble and learned Viscount, Lord Dilhorne, was concerned about the homosexual party and that he thought that a homosexual act could be committed between more than two persons simultaneously. We think that is not possible. There could be a series of acts, but each one could be done between only two people.

LORD HOBSON

My Lords, if the noble Lord will allow me to intervene, will he make it perfectly clear that when he uses the pronoun "we" he is referring to the Home Office and not to Her Majesty's present advisers?

LORD STONHAM

I was referring to the advice that I had been given, "we" relating to consultations, if you like, about the meaning of words. Surely I do not have to make any clearer to your Lordships—I have said it so many times—how the Government stand on matters of principle. I am trying to deal now with matters of fact and legal interpretation. I am not giving an opinion on the question of any principle involved which has already been discussed in Committee.

I was saying that it appeared that the noble and learned Viscount thought that a homosexual act could be committed between more than two persons simultaneously, and I was advised that that was not thought to be possible. There could be a series of individual acts, but each one would be done between only two people and other persons would be persons present but not parties to the act. The second defect is that subsection (2) provides that the commission of an act shall not be deemed to be in private, whereas it is thought that it should provide more positively that it should be deemed not to be in private. For those reasons Parliamentary counsel propose that the present subsection (2) should be replaced by paragraph (a) of the present Amendment.

With regard to the exclusion of public lavatories from being considered "in private", the justification for that is that homosexual acts may take place there in the absence of third persons and without the general public being able to see the act, but the general public might still be aware that the act is taking place and public decency would be outraged. I should have thought that that strengthened and assisted the point which the noble and learned Viscount put to us and which was accepted by the House in Committee. That was the reason for its exclusion. I have tried to put the matter as clearly as possible without expressing any opinion. I hope it is now clear.

THE LORD ARCHBISHOP OF CANTERBURY

My Lords, in the Committee stage I supported strongly an Amendment moved by the noble and learned Viscount, through a great desire that the law should condemn anything resembling homosexuals' clubs. If the content of the clause which the Committee accepted on the Motion of the noble and learned Viscount were to be watered down or impaired, I should be very anxious indeed. While he spoke I, not being a lawyer, was indeed anxious as to whether the substance had been whittled away, but, from the advice we have had from the Home Office, based presumably on the Home Office's own legal advisers, it seems very clear that "persons" covers "person", that "an act" means an act committed by two persons, and that the presence of another person is condemned.

VISCOUNT DILHORNE

My Lords, if I may interrupt—

THE LORD ARCHBISHOP OF CANTERBURY

May I say that for that reason it seems to me that the essence of what the noble and learned Viscount is concerned about is not being whittled away.

VISCOUNT DILHORNE

I am grateful to the most reverend Primate for giving way. I rise only to say this to him. It may seem clear to him, but, so far as I am concerned, my view on this is absolutely unaltered. I think that the inference from putting in the plural is that more than one person is required and I have known of cases where acts of gross indecency have had more than two participants.

BARONESS GAITSKELL

My Lords, if I agree with the noble and learned Viscount, Lord Dilhorne, about anything, I agree with him and sympathise with him on this business of privacy with regard to homosexuals. I did not much like the Amendment which he carried in this House, because it seemed to me an absolutely legal Amendment which it is very difficult for women to understand, but I think that the question of privacy with regard to homosexuals is really more stringent. As a matter of fact, the noble and learned Viscount was dealing with clubs, which I believe is a matter for the police and not for private individuals. But when we come to the question of privacy outside such things as homosexual clubs, I think it is a different matter, and I wish there could be a definition of "private" which was not quite the same as that of the noble and learned Viscount, Lord Dilhorne, in the Amendment which was passed. There is a very small instance which I might give. When I see two young people embracing on the moving staircase on the Tube I am not outraged myself, but I should be outraged if I saw two homosexuals doing just that. So one can imagine that there would be situations when people who were most liberal about this subject would be outraged, and I should not like this to happen.

THE EARL OF ARRAN

My Lords, I have just two points. First of all, I am sorry that I did not tell the noble and learned Viscount in advance. I did not do so for a very good reason; because I thought that the sense of his Amendment had been included in the redraft. I was told that authoritatively, and that is the reason why I did not bother him with it. Secondly, the noble and learned Viscount has asked: What is the point of going on with all this business? May I just say very briefly why I am? It is clear, as he said, that there is no hope of this Bill going through to the other place this Session. It could be argued that we are simply indulging in an exercise which is a complete waste of time, and which can at the moment lead to nothing. I understand those arguments but I do not accept them for one single moment.

The point is this. Do we, or do we not, want homosexual law reform? Do we not want it soon? And when it does come—and it is bound to—do we, or do we not, want it in a proper shape and form? I believe that if in this House we can set our formal seal to an efficient, a closely reasoned and a fully debated Instrument, then we shall be in a strong position to move forward quickly in the next Session and also to influence the other place. Although the Government have remained strictly neutral in these matters, they cannot surely but be impressed by a Bill which has the full approval of your Lordships' House.

SEVERAL NOBLE LORDS

Full approval?

THE EARL OF ARRAN

In terms of votes and majorities, yes. Then there is this other point. It has been suggested to me, and by people for whom I have the highest respect, that I should leave well alone; that the principle of law reform having been accepted by a majority on Second Reading, I should sit back and proceed no further. In fact, I should in many ways be glad to do this. Moving a Bill is an anxious and a lonely business. But I believe vehemently that to hold back at this time would be to

Resolved in the affirmative, and Amendment agreed to accordingly.

LORD SHEPHERD

My Lords, it had been the original intention to adjourn the House for one hour, in order that Members could have lunch. I have tried to take the feeling of the House, and it seems that it is the general wish to continue the Report stage without adjourning; that is, to carry on until it is completed.

12.56 p.m.

LORD BYERS moved to add to the clause: Subsection (1) of this section shall not prevent an act from being an offence (other than a civil offence) under any provision of the Army Act 1955, the Air Force Act 1955 or the Naval Discipline Act 1957.

The noble Lord said: My Lords, I beg to move the Amendment standing in

seem to withdraw, would be to let the whole thing go off the boil; and I doubt very much now, if we were to hold our hands, whether it would be so easy to arouse the same interest later on.

12.45 p.m.

On Question, Whether the said Amendment (No. 3) shall be agreed to?

Their Lordships divided: Contents, 59; Not-Contents, 32.

CONTENTS
Ailwyn, L.	Dudley, L.	Maugham, V.
Amulree, L.	Effingham, E.	Mottistone, L.
Archibald, L.	Emmet of Amberley, Bs.	Norwich, V.
Arran, E. [Teller.]	Exeter, L. Bp.	Ogmore, L.
Attlee, E.	Faringdon, L.	Plummer, Bs.
Auckland, L.	Francis-Williams, L.	Ponsonby of Shulbrede, L.
Barrington, V.	Gaitskell, Bs.	Queensberry, M.
Boothby, L.	Gardiner, L. (L. Chancellor.)	Rea, L.
Boston, L.	Gifford, L.	Reay, L.
Boyd-Orr, L.	Gladwyn, L.	St. Davids, V.
Byers, L.	Glasgow, E.	Samuel, V.
Caccia, L.	Greenway, L.	Segal, L.
Canterbury, L. Abp.	Hertford, M.	Shackleton, L.
Chichester, L. Bp.	Huntingdon, E. [Teller.]	Sherfield, L.
Chorley, L.	Jessel, L.	Silkin, L.
Cohen, L.	Latham, L.	Sinha, L.
Colville of Culross, V.	Listowel, E.	Stonham, L.
Colwyn, L.	Longford, E. (L. Privy Seal.)	Strabolgi, L.
Coventry, L. Bp.	Mancroft, L.	Strang, L.
Drumalbyn, L.

NOT-CONTENTS
Allerton, L.	Ferrers, E.	Merrivale, L.
Alport, L. [Teller.]	Forster of Harraby, L.	Mersey, V.
Ampthill, L.	Goschen, V.	Meston, L.
Beswick, L.	Grenfell, L.	Milverton, L.
Bossom, L.	Hawke, L.	Monsell, V.
Brocket, L. [Teller.]	Hereford, V.	Phillips, Bs.
Carew, L.	Hobson, L.	St. Oswald, L.
Chuter-Ede, L.	Horsbrugh, Bs.	Saltoun, L.
Clwyd, L.	Kilmuir, E.	Williamson, L.
Dilhorne, V.	Kirkwood, L.	Wolverton, L.
Falkland, V.	MacAndrew, L.

the name of the noble Earl, Lord Arran, the noble Marquess, Lord Queensberry, and myself. This, like other Amendments, has been the subject of much comment both on Second Reading and in Committee, because it has been generally agreed—and it was recognised, of course, by the Wolfenden Committee—that the Armed Forces do present a particular problem. This Amendment, I believe and hope, will find favour both with the Home Office and with the Service Departments, and I hope it will be possible for the noble Lord who is to speak on this Amendment from the Front Bench opposite to confirm that this is so.

The Amendment will, and is intended to, preserve, so far as this Bill is concerned, all the powers that now exist under the Army and other Acts which regulate discipline in the Armed Forces. In other words, if this Amendment is accepted, it will still be open to the military authorities to prefer at a court-martial a charge of gross indecency, of which I understand buggery is a form, under Sections 12 and 13 of the 1956 Act. But it will not be possible to charge in a civil court someone who is subject to military discipline with the act of buggery, because that offence will no longer exist if this Bill is passed. The opponents of this Bill will no doubt claim that sodomy should be regarded as a special offence under military discipline, with presumably severer punishments than other forms of indecency. I hope that the House will resist this suggestion, because the principle that sodomy should be regarded as a special offence deserving of special punishment has already been rejected by the House. I am convinced that, by preserving the power which the military authorities now possess, we can have complete confidence that they will wield it in the best interests of the Armed Services and the community. My Lords, I beg to move.

Amendment moved— Page 1, 1ine 10, at end insert the said subsection.—(Lord Byers.)

VISCOUNT DILHORNE

The noble Lord, Lord Byers has moved his Amend-merit with commendable brevity, and I will try to follow his example. He is wrong in saying that the Amendment will preserve all the powers of dealing with members of the Armed Forces before courts-martial. He drew attention to the fact that it will still be possible to prefer a charge of gross indecency. My Lords, it is possible at the present moment to prefer before a court-martial a charge of sodomy. That is the law at the present moment. If this Amendment is carried, the law with regard to the Armed Forces will be changed, because it will no longer be possible to charge and convict before a court-martial a member of the Armed Forces of the offence of sodomy if it is committed in private between consenting adults. So it is quite wrong to say that this Amendment does not in fact change the law, so far as the Armed Forces are concerned and so far as discipline in the Armed Forces is concerned. I am not concerned with proceedings in a civil court: I am concerned here, on this Amendment, only with proceedings which can be taken before courts-martial, and with the enforcement of military discipline.

I do not think that the noble Lord, Lord Byers, is right in saying that this House has expressed the view that sodomy is not a more grave offence than many forms of gross indecency. I do not think that is the case at all. However that may be, the point I want to make is that, whether this Amendment is acceptable to the Home Office or the Armed Forces or not, this House should be under no illusion on the question as to whether it changes the law so far as the Armed Forces are concerned. It changes it—and I repeat it, quite simply—in the respect that, if this Amendment is carried, it will not be possible to charge and convict before a court-martial a member of the Armed Forces of the offence of sodomy if it is committed with someone over the age of 21 who consents to that act. That is a change in the present law, and it is no use saying that it is not.

One reason why I have risen at this moment is because the noble Lord, Lord Shackleton, who I have no doubt is going to speak for the Government in this respect, may say that, so far as the Services are concerned, this change is acceptable to them. I hope that the noble Lord will make some statement of as to how the military authorities intend to apply the law, if it is changed in accordance with this Amendment. Will that conduct which the present majority of your Lordships' House wishes to sanction be contrary to the Army Act? If that kind of conduct takes place between a member of the Armed Forces and a civilian, will the member of the Armed Forces be liable to be brought before a court-martial? And will this apply to a member of the Armed Services who does it when on leave? Or will this be applied only when the member of the Armed Forces is on duty and no civilian is involved?

I think that before this change is made we ought to have some clear indication from the noble Lord as to the precise manner in which this will now be applied. If this change is made, with the effect that you cannot charge a young man or a man in the Forces with the offence of sodomy where the parties are over 21 and consenting, it may be that you can charge him with behaving in a scandalous manner or make a charge involving words something like that; perhaps a charge "of conduct to the prejudice…"; but that raises the question whether the actual conduct complained of is within that definition. It will be open, in all those courts-martial proceedings, for the defence to argue that the acts between consenting adult members of the Forces in private did not, in fact, constitute conduct of a scandalous nature. Whether that argument will prevail or not I hesitate to speculate; but at least it might be said, in view of the views expressed in your Lordships' House, that if this Bill is passed such conduct will no longer be regarded as scandalous or unnatural—and it was only after I had thrown a fly over the most reverend Primate did I get him to express the view that it was abominable.

It may be that the courts-martial, if this change is made, will not only have to determine whether or not the particular conduct charged has been committed but whether, in those particular circumstances, it constitutes the offence under, I think, Section 66, of behaviour of a disgraceful or indecent kind. I am not sure of the exact words; I do not have the relevant section to hand. I draw these matters to your attention because I think the House should be clear that it is the case that this Amendment, if carried out, will alter the law as at present applied to members of the Armed Forces.

THE LORD CHANCELLOR

My Lords, the contention of the noble and learned Viscount is that this clause will alter the law. As this is mainly a question of law, I have been asked to reply for the Government. I think that on the Second Reading of this Bill it was virtually the unanimous view of your Lordships that the Services should be properly protected in this matter. It is suggested that, first of all, some new special crime ought to be constituted in relation to buggery, or sodomy, for Scotland. The noble and learned Viscount endeavoured to persuade the House that even in the case of homosexual acts between adults in private, buggery should be treated differently from other forms of homosexual activities; but the House disagreed with this view. The Parliamentary draftsman is of the opinion that, if this Amendment is accepted, any man can be charged, first, with disgraceful conduct of a cruel, indecent or unnatural kind; and, secondly, if an officer, with behaviour unbecoming to an officer or of conduct to the prejudice of good order and discipline.

The noble and learned Viscount is of the opinion that if such acts between consenting adults in private are no longer criminal offences for civilians, it might be open to a court-martial to find that buggery was not disgraceful conduct of a cruel, indecent or unnatural kind. I can only say that that is not the view of the Parliamentary draftsman. The Home Office have also considered this Amendment and they also are of the opinion that it is apt to protect the Service Departments (as we all desire to do) and that it would not be open to a court-martial to find that buggery was not indecent conduct. The three Service Departments have also considered it; they also are satisfied that this Amendment, as drafted, protects their position; and they are prepared to accept it. They also take the view that it would not be open to courts-martial to find that buggery is not indecent conduct.

Had I differed from the Parliametary draftsman and the Services in a matter which, after all, concerns the Services and the Home Office, I should be somewhat diffident in saying so; but, if I may say so, I think in practice the contention of the noble and learned Viscount cannot be right. I have no doubt that I have taken as many bad points in my time as any other counsel, but I should view with considerable trepidation an attempt to persuade a court-martial that buggery is not disgraceful conduct of an indecent kind. I am sure that I should receive short shrift if I were to do so, because they are not as stupid as that. For these reasons, the Government are of the opinion that, as drafted, the Amendment carries out the intention of the House.

On Question, Amendment agreed to.

1.9 p.m.

THE LORD ARCHBISHOP OF CANTERBURY moved to add to the clause: ("() A man who is suffering from severe subnormality within the meaning of the Mental Health Act, 1959 cannot in law give any consent which, by virtue of subsection (1) of this section, would prevent a homosexual act from being an offence, but a person shall not be convicted, on account of the incapacity of such a man to consent, of an offence consisting of such an act if he proves that he did not know and had no reason to suspect that man to be suffering from severe subnormality. () Section 128 of the Mental Health Act, 1959 (prohibition on men on the staff of a hospital, or otherwise having responsibility for mental patients, having sexual intercourse with women patients) shall have effect as if any reference therein to having unlawful sexual intercourse with a woman included a reference to committing buggery or an act of gross indecency with another man.

The most reverend Primate said: This Amendment deals with a point which at the Committee stage appeared to be generally acceptable. It is put forward in the spirit of the protective recommendations which it makes. The first subsection ensures that, despite Clause 1(1) of the Bill, it will still remain an offence to commit a homosexual act with a person suffering from severe subnormality as defined by the Mental Health Act, 1959. This subsection corresponds with Section 7 of the Sexual Offences Act, 1956, which makes it an offence to have unlawful homosexual relations with a defective. The second subsection extends to a matter not covered in the previous Amendment. It applies Section 128 of the Mental Health Act, 1959, to certain homosexual acts. Under that section it is an offence for a male employee or a manager at a hospital or mental nursing home to have immoral relations with a woman patient. This subsection extends the offence to cover homosexual offences.

Amendment moved— Page 1, line 10, at end insert the said subsections.—(The Lord Archbishop of Canterbury.)

On Question, Amendment agreed to.

THE LORD BISHOP OF EXETER moved, after Clause 1, to insert the following new clause:

Revised punishments for homosexual acts

".—(1) The maximum punishment which may be imposed on conviction on indictment of a man for buggery with another man of or over the age of sixteen shall, instead of being imprisonment for life as prescribed by paragraph 3 of Schedule 2 to the Act of 1956, be—

1. (a) imprisonment for a term of ten years except where the other man consented there-to; and
2. (b) in the said excepted case, imprisonment for a term of five years if the accused 438 is of or over the age of twenty-one and the other man is under that age, but otherwise two years;

and the maximum punishment prescribed by that paragraph for an attempt to commit buggery with another man (ten years) shall not apply where that other man is of or over the age of sixteen.

(2) The maximum punishment which may be imposed on conviction on indictment of a man of or over the age of twenty-one for gross indecency with another man under that age or for an attempt to procure a man under that age to commit an act of gross indecency with another man shall, instead of being imprisonment for a term of two years as prescribed by paragraph 16 of the said Schedule 2, be imprisonment for a term of five years.

(3) References in this section to a person's age, in relation to any offence, are references to his age at the time of the commission of the offence.

(4) Accordingly the said Schedule 2 shall be amended as follows:—

1. (a) in paragraph 3(a) for the word 'Life' there shall be substituted the words If with a boy under the age of sixteen or with a woman or an animal, life; otherwise the relevant punishment prescribed by section (Revised punishments for homosexual acts) of the Sexual Offences Act 1965';
2. (b) in paragraph 3(b) for the words Ten years' there shall be substituted the words 'If with a boy under the age of sixteen or with a woman or an animal, ten years';
3. (c) in paragraph 16(a) for the words Two years' there shall be substituted the words 'If by a man of or over the age of twenty-one with a man under that age, five years; otherwise two years';
4. (d) in paragraph 16(b) for the words 'Two years' there shall be substituted the words If the attempt is by a man of or over the age of twenty-one to procure a man under that age to commit an act of gross indecency with another man, five years; otherwise two years'."

The right reverend Prelate said: My Lords, this is a revised form of an Amendment moved by the most reverend Primate on Committee stage. It has been revised in order to meet the objections made then, notably by the noble Lord, Lord Stonham. I am advised that the clause as now drafted meets all those objections and unless it is your Lordships' wish that I should go through the terms of the Amendment in detail, I will content myself now by simply moving it.

Amendment moved— After Clause 1, insert the said new clause.—(The Lord Bishop of Exeter.)

On Question, Amendment agreed to.

THE LORD BISHOP OF EXETER

My Lords, if I may, I will move Amendment No. 7, on behalf of the noble Earl Lord Arran.

THE LORD CHANCELLOR (LORD GARDINER)

The noble Earl, Lord Arran, has just entered the Chamber.

THE LORD BISHOP OF EXETER

I was about to move the Amendment No.7, but now that Lord Arran has arrived perhaps he will take over from me and introduce his own Amendment.

THE EARL. OF ARRAN

My Lords, this Amendment implements a proposal made by the Wolfenden Committee in paragraph 115 of their Report. Perhaps I may be permitted to quote an extract. The Committee said: … we do not wish to encourage the activities of third parties who might interest themselves in making arrangements for the commmission of homosexual acts, even if those acts are to be no longer illegal. Exploitation of the weakness of others is as objectionable in this field as in any other and we should not wish to seem to be countenancing anything which approximated to living on immoral earnings. We do not think it would he appropriate to draw up a complex code corresponding to that which relates to the procuration of a woman … and we accordingly simply recommend that it should continue to be an offence punishable by a maximum of two years imprisonment for a third party to procure or attempt to procure an act of gross indecency between male persons, whether or not the act to be procured constitute a criminal offence. This Amendment goes further than that recommendation. It creates a new offence of procuring a third party to commit buggery. Subsection (3) makes clear that, as the Wolfenden Committee said, if we change the law so that private behaviour of consenting adults is no longer criminal, an adult ought not to be guilty of an offence by reason of procuring, or attempting to procure, the commission of a homosexual act in private between another adult and himself. Naturally, we welcome that provision. It is worth pointing out that in the view of some lawyers it is objectionable in principle that it should be an offence to do or permit the commission of something which is not in itself an offence: Nevertheless, I am putting forward this Amendment on the understanding that we have principally in mind those objectionable activities approximating to living on immoral earnings. It is to strike at this sort of behaviour that we should like to see the Amendment accepted.

Amendment moved— After Clause 1, insert the following new clause:

Procuring others to commit homosexual acts

(".—(1) A man who procures another man to commit with a third man an act of buggery which by reason of section 1 of this Act is not an offence shall be liable on conviction on indictment to imprisonment for a term not exceeding two years.

(2) The Act of 1952 shall have effect as if offences under the foregoing subsection were included among those specified in paragraphs 1 to IS of Schedule 1 to that Act (indictable offences triable summarily with the consent of the accused).

(3) It shall not be an offence under section 13 of the Act of 1956 for a man of or over the age of twenty-one to procure the commission by a man of or over that age of an act of gross indecency in private with the first-mentioned man, but save as aforesaid the fact that such an act would by reason of section 1 of this Act not be an offence under the said section 13 shall not prevent procuring its commission by a man with another man from being an offence under that section.")—(The Earl of Arran.)

On Question, Amendment agreed to.

1.18 p.m.

LORD JESSEL

My Lords, this Amendment implements the Wolfenden recommendation that the law relating to living on the earnings of prostitution be applied to the earnings of male as well as female prostitutes. It creates a similar offence and provides similar penalties to Section 30 of the 1956 Sexual Offences Act as amended by the 1959 Street Offences Act relating to living on the earnings of female prostitutes. Subsections (2) and (3) of this clause make a similar provision to those relating to living on the earnings of female prostitution. I am advised that this Amendment brings the law on this matter into line with the existing law relating to living on immoral earnings, and I commend the Amendment to your Lordships.

Amendment moved— After Clause 1, insert the following new clause:

Living on earnings of male prostitution

("—(1) A man or woman who knowingly lives wholly or in part on earnings of prostitution of another man shall be liable—

1. (a) on summary conviction to imprisonment for a term not exceeding six months; or
2. (b) on conviction on indictment to imprisonment for a term not exceeding seven years.

(2) A person accused of an offence under this section cannot claim to be tried on indictment under section 25 of the Act of 1952 (right of accused to trial by jury for summary offences punishable with more than three months imprisonment).

(3) Anyone may arrest without a warrant a person found committing an offence under this section.")—(Lord Jessel.)

LORD FARINGDON

My Lords, I spoke against this type of Amendment on an earlier occasion when we discussed the other part of the Wolfenden Report, and I produced some evidence then that the relationship between a woman and her protector was very often the most stable relationship in their lives and should not be treated too summarily or critically. Can the noble Lord, Lord Jessel tell me what would happen in a case, which would come under the law as it is to be amended by this Amendment, where a young man living as a prostitute took into his home (I am in fact putting into homosexual terms a case I saw quoted not long ago in a book on research into this matter) a man or woman and looked after that person during the time the person was sick? If it was a long illness, inevitably in the process of being looked after that person would be living on immoral earnings and would thereby make himself liable. Would a purely charitable relationship necessarily entail a break-up and imprisonment, or at any rate a fine?

THE EARL OF ARRAN

My Lords, I wonder whether the noble Lord, Lord Stonham, would answer that point, as it has legal effect?

LORD STONHAM

I should do so with reluctance. I think it is a matter which could be decided only by the courts.

On Question, Amendment agreed to.

THE EARL OF ARRAN

My Lords, the wording of this Amendment is perfectly clear. It implements a Wolfenden Report recommendation that the law be amended if necessary so as to make it explicit that the word "brothel" includes premises used for homosexual purposes as well as heterosexual practices. During the Committee stage it was agreed that this was correct. No doubt the wording is now in its proper form. The Amendment equates such premises under the law with heterosexual premises under Sections 33 to 35 of the 1956 Sexual Offences Act, and makes it clear that the question of whether or not such premises are used as a brothel shall he decided by the courts. I beg to move.

Amendment moved—

After Clause 1, insert the following new clause: ("Premises shall be treated for purposes of sections 33 to 35 of the Act of 1956 as a brothel if people resort to it for the purpose of lewd homosexual practices in circumstances in which resort thereto for lewd heterosexual practices would have led to its being treated as a brothel for the purposes of those sections."—(The Earl of Arran.)

On Question, Amendment agreed to.

LORD FRANCIS-WILLIAMS moved, after Clause 1, to insert the following new clause:

Time limit on prosecutions

".—(1) No proceedings for an offence to which this section applies shall be commenced after the expiration of twelve months from the date on which that offence was committed.

(2) This section applies to—

1. (a) any offence under section 13 of the Act of 1956 (gross indecency between men);
2. (b) any offence under section 32 of that Act (soliciting and importuning by men for immoral purposes) where the immoral purpose is the commission of a homosexual act;
3. (c) any offence of buggery by a man with another man not amounting to an assault on that other man and not being an offence by a man with a boy under the age of sixteen."

The noble Lord said: My Lords, on behalf of my noble friend, I beg to move this Amendment. As your Lordships will see, this is simply an attempt to give effect to one of the humanitarian principles which are embodied in this Bill, and I think it meets the general feeling of the House that proceedings for an offence shall not be held hanging over a person's head for longer than twelve months. The Amendment makes it clear that where the offence involves an assault on another man or an offence with a boy under the age of sixteen, this would not apply, but in all other cases I think it is right and proper that after a period of twelve months there should be no further hanging over of such proceedings.

Amendment moved— After Clause 1, insert the said new clause.—(Lord Francis-Williams.)

LORD STONHAM

My Lords, at an earlier stage of to-day's proceedings, I made it clear that on matters of principle on this Bill the Government were wholly neutral, but that on most of the Amendments we provided the assistance of Parliamentary Counsel in order that the Amendments should not be technically defective and should properly embody the views of your Lordships expressed in Committee, as we understood them. Your Lordships will have noticed that I have not intervened in any discussions, except on Amendment No.3, when I tried to make the technical position clear. I think it is particularly necessary for me to make it clear on this Amendment that we would not have it thought that the Government's view necessarily coincides with that expressed in the Amendment. This is entirely a matter for your Lordships, without any guidance from me, except that I should say that the Amendment as it stands achieves the object which my noble friend explained in moving.

On Question, Amendment agreed to.

THE LORD ARCHBISHOP OF CANTERBURY

My Lords, I beg to move this Amendment, which deals with a matter which I think the House appeared to agree about in principle in the Committee stage. The purpose of the new clause is to introduce the provision of discretion concerning the prosecution of a person under 21 for homosexual offences and to make that discretion similar in England to what it is at present by law in Scotland.

Amendment moved—

To insert the following new clause:

Restriction on prosecution

".No proceedings shall be instituted except by or with the consent of the Director of Public Prosecutions against a man who at the time of the commission of the offence was under the age of twenty-one for buggery with, or gross indecency with, another man, for attempting to commit either offence, or for aiding, abetting, counselling, procuring or commanding its commission."—(The Lord Archbishop of Canterbury.)

On Question, Amendment agreed to.

THE EARL OF ARRAN moved to leave out Clause 2 and to insert:

Choice of mode of trial for certain offences

".—(1) A man charged before a magistrates' court with an offence under section 32 of the Act of 1956 (soliciting and importuning by men for immoral purposes) where the immoral purpose is the commisison of a homosexual act shall be entitled to claim under section 25 of the Act of 1952 to be tried by a jury; and accordingly—

1. (a) in the said section 25 (as amended by Schedule 3 to the Act of 1956) for the words ' section 30, 31 or 32 of the Sexual Offences Act 1956 'there shall be substituted the words 'section 30 or 31 of the Sexual Offences Act 1956 or an offence under section 32 of that Act where the immoral purpose is other than the commission of a homosexual act';
2. (b) in paragraph 32 of Schedule 2 to the Act of 1956 (offences under the said section 32), in column 4 before the words The accused' there shall be inserted the words 'Except as provided by section 2 of the Sexual Offences Act 1965'.

(2) The Act of 1952 shall have effect as if offences under section 13 of the Act of 1956 (gross indecency between men) were included among those specified in paragraphs 1 to 18 of Schedule 1 to the Act of 1952 (indictable offences triable summarily with the consent of the accused); and paragraph 16(a) and (b) of Schedule 2 to the Act of 1956 shall have effect subject to section 19 of the Act of 1952 (summary trial of indictable offences specified in the said Schedule I)."

The noble Earl said: My Lords, on behalf of my noble friend Lord Chorley, I beg to move this Amendment. The Amendment implements recommendations 11 and 12 of the Wolfenden Report. It gives the option of electing to go for trial on indictment to a man charged with persistently importuning and, on the other side of the coin, of electing summary trial to a man accused of gross indecency. I think that the principle was formally approved in Committee stage, though the wording was not in order. I am advised that the redrafting is technically—and, I hope, morally as well—acceptable.

Amendment moved— Leave out Clause 2 and insert the said new clause—(The Earl of Arran.)

THE LORD CHANCELLOR

My Lords, I cannot let your Lordships depart from this proposed Amendment without saying how glad I am that at long last men who are charged with practices of this kind in public lavatories will be able to obtain trial by jury. Our law has always drawn a distinction between greater and lesser offences, and the general principle has always been that on a serious offence a man is entitled to be tried by a jury of his fellow countrymen. Though in these offences the punishment may not be great, the law seems to me to have been quite out of line with this principle, having regard to the fact that a conviction of this kind can not only ruin a man's reputation, but also deprive him of his means of livelihood.

Inevitably, stipendiary magistrates trust the police, as they should, but I have been told by more than one leading counsel who has spent his life in the field of criminal law that they would sooner think of relieving themselves in the street than of going into a public lavatory in the middle of London, so great do they regard the risk of a completely innocent man being convicted of an offence of this kind. Therefore, because, quite apart from any views on homosexuality, I have been saying this for a long time, I cannot refrain from saying how glad I am to think that in future offences of this kind can be tried by a jury.

On Question, Amendment agreed to.

LORD HAWKE

My Lords, I beg to move this small Amendment on behalf of my noble friend Lord Rea. It seems to me that it puts into words what the Bill actual connotes, and therefore must be a good Amendment.

Amendment moved— Page 1, line 22, leave out ("Sexual Offences") and insert ("Homosexual Activities").—(Lord Hawke.)

LORD STONHAM

My Lords, when I first looked at this Amendment, I might have agreed with the noble Lord, Lord Hawke, that it describes exactly what the Bill is all about, but that was before I had the advice of Parliamentary counsel, which, unfortunately in this case, was not enjoyed by the noble Lord, Lord Rea. I must point out that this change in the Title is inappropriate, for the reason that in Amendment No. 8, which your Lordships approved a few minutes ago and which is now incorporated in the Bill, it was agreed that the Bill should cover living on the earnings of male prostitution, which is not itself a homosexual activity. Therefore, if we alter the Title as suggested, it would not cover at least one of the provisions in the Bill. Another difficulty is that this Bill amends and extends the Sexual Offences Act 1956, and therefore it seems appropriate that it should bear the same Title. I having made that explanation, it is open to the noble Lord, Lord Hawke, to take such course as he thinks proper.

LORD HAWKE

My Lords, I see the force of the noble Lord's argument. Living on the homosexual activities of another is perhaps not of itself a homosexual activity, but merely a by-product of it. Therefore, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

1.30 p.m

THE EARL OF ARRAN moved to add to subsection (1): and the Act of 1956 and this Act may be cited as the Sexual Offences Acts 1956 and 1965. (2) In this Act 'the Act of 1952' means the Magistrates' Courts Act 1952 and 'the Act of 1956' means the Sexual Offences Act 1956. (3) Section 46 of the Act of 1956 (interpretation of 'man', 'boy' and other expressions) shall apply for the purposes of the provisions of this Act as it applies for the purposes of the provisions of that Act. (4) References in this Act to any enactment shall, except in so far as the context otherwise requires, be construed as references to that enactment as amended or applied by or under any subsequent enactment including this Act. (5) Nothing in this Act shall affect the liability to conviction, or the punishment which may be imposed, for any offence committed before the passing of this Act".

The noble Earl said: My Lords, this is the Interpretation Clause. I think that most of the proposals in this Amendment are largely consequential. The first subsection lays down the manner in which the Act shall be referred to. The second subsection is self-explanatory. The third subsection provides that the terms "man", "boy", and so on shall be interpreted as in the Sexual Offences Act 1956. The fourth subsection provides that other Acts referred to in this Act shall be construed as amended by any subsequent Acts. The fifth subsection provides that this Act shall not apply to offences committed before it became law. I beg to move.

Amendment moved— Page 1, line 21, at end insert the said words.—(The Earl of Arran.)

LORD STONHAM

My Lords, I agree with what the noble Earl has said with regard to the nature of this Amendment, which we welcome. I would give a particular welcome to subsection (5), which ensures that new provisions in regard to offences and changing maximum penalties do not apply to offences committed before the passing of the Act. We regard this as essential, and it is a well-established principle for offences under the criminal law.

On Question, Amendment agreed to.