SEXUAL OFFENCES BILL

HL Deb 21 June 1965 vol 267 cc332-450

5.4 p.m.

House again in Committee.

VISCOUNT DILHORNE

As we discussed the first three Amendments together, I do not propose to take up any time in moving the second Amendment. But, of course, I shall be free to raise it again on Report, if there ever is a Report stage.

THE CHAIRMAN OF COMMITTEES

Your Lordships will observe that there are two Amendments, Nos. 4 and 5, dealing with the Bill at the same point. I think it might be for the convenience of the Committee, if I informed your Lordships that I have a third Amendment also affecting the Bill at the same point—a manuscript Amendment by the noble and gallant Viscount, Lord Montgomery of Alamein, and it is: Page 1, line 7, leave out ("21") and insert ("80").

THE EARL OF IDDESLEIGH moved to leave out "21" and insert "25". The noble Earl said: On behalf of my noble friend Lord Saltoun, who asked me to do so at somewhat short notice, I beg to move the Amendment standing in his name. This is a point on which the Wolfenden Committee gave a somewhat hesitant answer. Owing to the shortness of the notice (I was not expecting to speak) I cannot quote verbatim from the Report, but it will be within your Lordships' recollection that words were used to the effect that there was considerable discussion as to the age at which these practices should be made legal; that various ages were suggested, and that the age of 21 was consequently put forward, with some degree of hesitation. I ask your Lordships to give consideration to this point.

I would remind your Lordships of a point which I made on the Second Reading of the Bill, and that is how very lonely a young man of 21 may be. I have in mind the young man who has been to a day school, lived all the time in the bosom of his family, and has then attended a university in his home town. That is common enough as it is, and will probably become more common. We are agreed that university development cannot be held up until we have built enough hostels to accommodate university men and women from other districts. Therefore, I think it likely that in future more and more young men will stay at home for their university course, and that at about the age of 21 they will leave home, very often for another city and very often, indeed, for London, in order to take their first post. Be it in an office, be it in a laboratory, be it in the public service, be it in industry, they will be coming out for the first time.

I am quite sure that the right reverend Prelate the Bishop of London will bear me out that this loneliness of the young men who come to London is a very real pastoral problem, and I trust that when he considers the points that I am going to make I may win some sympathy at least from him, and perhaps from other Members of the episcopal Bench. The young man will have had certain opportunities of meeting girls and even of doing a little flirting in his own home town, but to make friends among the smart young girls of London, with their different attitude towards things and their sophisticated point of view, is a very different matter. He will be lonely and a little bit in awe of life, and he will be very grateful to an older man who takes him up and shows him affection and kindness. If that older man is homosexually inclined, he will have very great power to influence that young man in the direction of homosexuality.

We know very little about the causes of homosexuality. Some say that people are born homosexuals. That may he so; or they may become homosexuals as a result of childhood influence. But the Wolfenden Report itself, in a striking passage contributed by two of its medical members, I think, admits that what we are really dealing with is a great un differentiating force of affection which may take a homosexual or a heterosexual form. A young man in the circumstances that I have described may very easily be urged in a homosexual direction. Besides, it may well be that the older man is of importance in the boy's firm. He may be the head of his laboratory or of his office, and here the young man will find it singularly difficult to resist any advances that may be made.

If we raise the age to 25 we have a very different situation indeed. The young man can afford to leave his firm; he is mature; he has more sense, and he will perhaps be able to make the moral choice with a little more knowledge of the circumstances and the way of life which he is adopting. There are many other points. My noble friend Lord Saltoun is particularly concerned with the effect upon youth. At 21 there is too great a difference between the young man—or, indeed, the boy—and the older man. I would urge that 25 is an age at which we may assume a degree of maturity that at 21, whatever the legal position may be, does not in fact exist. I beg to move.

Amendment moved— Page 1, line 7, leave out ("21") and insert ("25").—(The Earl of Iddesleigh.)

5.13 p.m.

THE EARL OF HUNTINGDON

Might I suggest to the Committee that it might be convenient, as we have three Amendments dealing with the question of age, to take them all together? I suggest that we have the discussion on the first, if that is agreeable. I should like to say, in moving my Amendment, to substitute for 21 the age 18—

LORD SHEPHERD

I am afraid that the noble Earl cannot move his Amendment now. He can speak to it, and then move it formally when we have dealt with the Amendment which has just been moved.

THE EARL OF HUNTINGDON

I apologise to the Committee. I should like, then, to speak to my Amendment without at present moving it. I should also like to make it clear, before adding a few words on this subject, that I am expressing entirely my own opinions and feelings, and in no way attempting to put forward the opinions of the Homosexual Law Reform Society, to which I belong. This is a quite independent line of thought.

The Amendment that I am speaking to would reduce the age from 21 to 18, and I should like to examine a little the Wolfenden Report to see exactly what the Committee say about it. Like many other noble Lords, I commend that Report very much. The Wolfenden Committee went to infinite trouble, infinite care, and examined a tremendous number of witnesses before finally reaching their conclusions, so I think it would be worth while just looking at their arguments and finding out what their conclusions were. It will be noticed from paragraph 66 of the Report that, for convenience, the Committee considered this subject under four sets of considerations. For convenience, they took four sets of considerations when deciding how they should consider this question of age.

I am going to deal first with paragraph 67. They recognise, as I feel we all recognise, the tremendous importance of protecting youth and immature persons. I do not think that, either in the Second Reading debate or in this debate, anyone has for a moment attempted to belittle this argument, or to suggest that we should not protect children or young, immature persons from the unwelcome advances of older men. But, in paragraph 67, the Report goes on to say that is seems strange that we should think it more important to preserve the young boy or the young man than the young girl. It would seem, at first sight, that it should be exactly the opposite. The young man is physically stronger, and the whole tradition of a man is to go out into the world. He is brought up to do that; to make his way in the world; to be the bread-winner, to manage, to control. On the other hand, it is, on the whole, the training of a girl to comply. After all, to many women marriage is still a career, and their tradition is to conform with what the man does. One would therefore think that, on the face of it, it is much more important to protect girls than men.

Particularly is that so for one reason which stands out from among all others—and that is the tremendous risk that a woman takes in that she can have a child. If a woman is seduced, the results may be an illegitimate child which she cannot get the father to accept, and for the rest of her life she is in difficulty by way of supporting this child and looking after it. That is a real menace. Yet, in spite of all those disabilities, the age of consent in the case of a girl is 16. It does seem rather strange that we should say that at 16 our girls are perfectly capable of looking after themselves, of supporting themselves and of facing all the dangers of the world, but that when it comes to a young man we say he cannot be allowed to do that. If I may quote for a second the Report, it says (in rather cautious wording, as always), in the last sentence of paragraph 67: On this view, there would be some ground for making sixteen the age of "adulthood" since sexual intercourse with a willing girl of this age is not unlawful. Therefore, I should like to point out to this Committee that, on this first set of considerations, the Report comes to the conclusion that 16 would be the reasonable age.

I come now to the second set of considerations, which is paragraph 68. Here, the argument also applies, I think, to the Amendment moved by the noble Earl, Lord Iddesleigh. When does a man become more or less sexually fixed in his habits, and when does a man's sexual pattern, whether it is homosexual or heterosexual, become clear? I think that this is tremendously important, because on Second Reading many of your Lordships argued that young men go through a homosexual phase at school which nearly always goes over later into a heterosexual one, but that if, too early, someone comes along and excites them or induces them to practise homosexuality, they may be diverted into homosexuality instead of to their normal sexual relationships. I think it is very interesting indeed to see what the Wolfenden Committee said on that.

LORD SOMERS

May I interrupt the noble Earl for one second? Is he taking into consideration the fact that there is a difference between maturity physically and maturity mentally? It is admitted that both boys and girls reach physical maturity to-day probably a good deal earlier than they used to, but I do not think it can be said that they reach mental maturity any sooner—it is possibly later—than they used to; and, of course, that is the thing which is going to safeguard the victim.

THE EARL OF HUNTINGDON

I thank the noble Lord for that intervention, but I would suggest that an argument to divide physical and mental maturity into two completely separate compartments would be very difficult to maintain. One encroaches upon the other, as a person grows up, and although physical activities may, so to speak, go a little ahead or a little back, it is difficult to put into two compartments. But I will proceed with what the Committee said in this paragraph. The medical witnesses were unanimous in saying that the sexual behaviour was fixed at an early age. The majority said that it happened well before the age of 16, and a minority of the witnesses thought that it happened in early infancy. So the Wolfenden Committee, on this set of considerations, argued that the age of 16 would be the reasonable age of the attainment of adulthood for the homosexual.

The third set of considerations is dealt with in paragraph 69. This is the only paragraph in which it is suggested that 21 might be the best age. This seems rather strange; for when one studies this paragraph it appears to be somewhat nebulous; it seems to be based on semantic considerations, on words rather than on facts. It does not consider moral behaviour, effects or anything like that. It poses the question, when discussing the age of consenting adults: What is an adult? The Report says that, although people hold various views on this question, the Committee came to the conclusion that the consensus of opinion is that 21 is usually considered the age of adulthood. That is reinforced by the fact that that is the age at which a person can enter into legal contracts, and the age at which, on his own responsibility, a man can make a marriage. Therefore, says the Report, in effect, as in the popular conception 21 seems to be the age of adulthood, let us take 21 as the age.

I submit that this is a very flimsy argument on which to base this important question. I ask myself: Why was 21 originally chosen as the age of adulthood? Though it may sound far-fetched to some, I think this choice goes back a very long way—back not only to the time when the father of a family ran his business or estates and did not want his sons to interfere, but, possibly, to even earlier times when there was a widespread belief in magic. The number "seven" among the ancients was considered a magic number. Even in our Christian community seven was the number of days associated with the Creation. We have now a seven-day week; and, if you look into other cultures, you find this magical number seven always occurring. When the ancients were considering this question of coming of age I think they may have said: "Seven is much too young; twice 7 is 14, but that is still too young; three times 7 is 21. This will be the age." I suspect that something of that nature was the origin of the choice of the age of 21. I suggest that when we come to consider the facts, and not just a general conception of words, this paragraph has no rational validity.

The fourth and final set of considerations are dealt with in paragraph 70. This, I think, is the hub of the matter; because, in paragraph 66, when the Committee were dealing with these different sets of considerations they said that the fourth one dealt with the consequences which would follow from the fixing of any particular age; and that, I think, is very important. Paragraph 70 starts by asking what would be the consequences if the age were fixed at 21. Here, one runs into difficulties straight away; because it is rather an anomaly to say that two young men of 20 who enter into a homosexual relationship are criminals and can be tried in the courts and sent to prison, when, a few months later, if they do the same thing they will be perfectly guiltless. It is a difficult situation. The Committee go on to say that whatever age is decided upon, there will always be a moment in time when an act is illegal, though a month or so later it will not be illegal. But, if the age were fixed at 18 that would get over this difficulty to a large extent, because under the provisions of the Children and Young Persons Acts a young person under 18—say, one of 17—would be considered a fit subject for "care or protection". But I do not think that anyone could argue that a 19-year-old or a 20-year-old could claim to come under those provisions.

THE EARL OF IDDESLEIGH

The legal position is that if a young person up to the age of 21 is undergoing full-time education, he remains a "child" within the definition of the Children and Young Persons Act.

THE EARL OF HUNTINGDON

I still feel that in practice it is very difficult to take a young man of 20 and treat him as in need of care or protection, under the Children and Young Persons Acts. This is perfectly logical with a 14-yearold child, but difficult with a 20-year-old.

BARONESS WOOTTON OF ABINGER

The care-and-protection provision ends at 17.

THE EARL OF HUNTINGDON

I thought that was the case. I am much obliged to the noble Baroness for her support. As I was saying, if we take this age we get over some of these difficulties to a large extent, so that if two young people have a homosexual relationship they need not come before the courts or to be charged. One of the objects of this Bill is to enable us to avoid sending to prison young people who are perfectly respectable, hard-working citizens in all respects other than this one attitude, which they cannot help. We want to prevent them from coming before the courts, being made criminals and having their whole lives spoiled.

Of these four sets of considerations, the Wolfenden Committee in the first one suggested the age of 16; in the last, under-18; and in only one of them, a very curious one, the age of 21. It is difficult to think why, with those solid arguments, they should have done so; and I suspect that there was a difference of opinion on the Committee. But that we shall probably never know. Some clue is given in paragraph 71, which is the final summing-up. I think that two things had influenced them. One was the question of National Service: what would happen then? That, I submit, no longer applies; because we do not now have National Service.

The other point, which I think perhaps is the only argument for fixing the age at 21, has some validity. I should like to read a short sentence from the Report which I think clarifies the matter. The Committee, after saying how great was the difference of opinion among them, finally decided on the age of 21. They then went on to say: Nevertheless, most of us would prefer to see the age fixed at twenty-one,"— and this is the important thing— not because we think that to fix the age at eighteen would result in any greater readiness on the part of young men between eighteen and twenty-one to lend themselves to homosexual practices than exists at present, but because to fix it at eighteen would lay them open to attentions and pressures of an undesirable kind from which the adoption of the later age would help to protect them. I think that was the one and only argument that could be used against making the age 18, rather than 21. Therefore I should like to say a few words about that case, because I think it is a valid argument which we ought to examine.

We are all aware, I imagine, that both young men and, much more, young women are seduced by other men, or other people—far more young women than young men, obviously. In these seductions, no doubt certain arguments are used. The advantage of money and a job, or promotion, may be argued. We all know from hearsay—I do not know how true it is—that particularly in the theatrical profession this is a tremendous temptation to young women. That profession is immensely overcrowded and it is hard to get a start in it at all. Most of the young girls in the profession are good-looking, and therefore tempting to male members of the profession. A good many, no doubt, secure their first jobs on the stage by complying with someone's importunity; that could well have happened and we admit it. But in order to combat that, which I am sure we all deplore, no one would suggest that we should make it a crime or a felony for any man to sleep with any girl who was under the age of 21 and not his wife. That is the equivalent of what we shall do if we make the age 21 rather than 18 for these people.

I would emphasise, too, that the whole position of that age, which must have been a menace to a good many young people, has during the last fifty years changed out of all manner from the reason nowadays, when it is not a question of a person looking desperately for a job but of a person with a job to be filled looking for a young man to fill it. To-day there are many more jobs available than young people to fill them. I suggest that in these days any self-respecting young man, if, as the noble Earl, Lord Iddesleigh, suggested, he were approached by his boss or employer in this way, would just walk out. If he were any good, he would find no difficulty in getting a job elsewhere. In other words, the situation of fifty years ago which greatly lent itself to seductions of this kind has very largely ceased to exist.

There will, of course, always be some people who will do anything for money. We cannot legislate for them. Also, I think the question of this seduction is a small one, but it would open the door, if the age were 21, to additional blackmail. One can well imagine that some young man aged 18, 19 or 20 might pretend that he was 21 and persuade some other homosexual to sleep with him and then start this awful blackmail business again. There is that small consideration, but the main point I wish to make is that we do not realise sufficiently how much more mature young people have become.

After the Second Reading debate on this Bill, I had a very interesting letter from a psychiatrist who had worked for many years in the East End, at Bow. Among other things, he said that people had not realised over the many years he had worked there how young people are becoming much more mature much earlier. If one wanted a rough yardstick, he thought that every year a given state of maturity was reached a month earlier. If we think of people twenty years ago and of the state of maturity then, we find that the position is very different to-day, and it will be very different in two or three years' time. I say, with respect, that it is ridiculous to look at young men of 18, 19 or 20 who are perfectly responsible and grown-up, who have gone to jobs and are working—some are married with children, one young man I know is managing an estate office at the age of 20—and to say that these young people are immature, unable to look after themselves and must be protected. It is a completely false situation which will lead to a lot of trouble and difficulty and I strongly suggest to your Lordships that, when I come to move it, you accept my Amendment and reduce the age from 21 to 18.

5.35 p.m.

VISCOUNT MONTGOMERY OF ALAMEIN

We have heard a very great deal to-day, and previously, about what is right and what is wrong at various ages, and so I handed in to-day a manuscript Amendment to say that the right age was not 21 or 25; it was 80. The purpose of that, of course, is that after the age of 80 it does not really matter what we do. I myself am rising 78, and the great thing is that at the age of 80 at least one has the old-age pension to pay for any blackmail which may come along. I regard the act of homosexuality in any form as the most abominable bestiality that any human being can take part in and which reduces him almost to the status of an animal. The time will come when we shall have to choose a title for this Bill, and I think that instead of, "Sexual Offences Bill [H.L.]" the proper title should be, "A Charter for Buggery". I beg to move.

THE CHAIRMAN OF COMMITTEES

If the noble and gallant Viscount, Lord Montgomery of Alamein, will excuse me, he cannot move his Amendment now, but I will call it later. The Amendment we are now discussing is Amendment No. 4. As has already been said, I think it would be best—although it is entirely for the Committee, and not for me to say—and probably more convenient to debate all three Amendments together. Only one Amendment can be called at a time; the second cannot be called until the first has been disposed of.

LORD STONHAM

I did indicate at an earlier stage this afternoon that it might be helpful on an occasion such as this if I gave the Government view, not on the question of principle but on the practical effect of the Amendments, and that I would have to work within the somewhat rigid parallel bars of my brief. Your Lordships will be aware that, as the Amendment of the noble and gallant Viscount, Lord Montgomery of Alamein, was a manuscript Amendment and put in only at the last moment, I had not had time to consult the Department and therefore cannot give the official view on the Amendment. If I may be so daring as to express my personal view, I think that the Amendment really means that the noble and gallant Viscount thinks that we do not reach the age of discretion until we are 80. He has just confessed to being still on the sunny side of 78, and what he is really doing—this is very surprising to me—is giving notice that he does not think he will reach the age of discretion for another two years. I hardly think that would be the general view, although I appreciate that this Amendment is put forward—at least I hope it is—with the idea of good clean fun, and anything that is good clean fun on a subject such as we are discussing is most welcome.

I shall therefore address myself to the two Amendments, one on the age of 25 as Moved by the noble Earl, Lord Iddesleigh, on behalf of the noble Lord, Lord Saltoun, and the other on the alternative age of 18, which my noble friend Lord Huntingdon put so appealingly. The two arguments to a large extent cancel each other out. The noble Earl, Lord Iddesleigh, said that a young man of 21 could be very lonely, and if an older man who becomes a friend of this young man happens to be a homosexual, he will have a great influence on the young man. My noble friend Lord Huntingdon pointed to the fact that in the case of a girl, the age of consent is 16, yet we are proposing to fix a young man's age of responsibility in this respect at 21. He quoted the Wolfenden Report fairly with regard to the view that there was some ground for making 16 the age of responsibility, but I do not think he dealt in full with the arguments which the Committee put forward for rejecting this idea.

I would quote from paragraph 71 the passages which my noble friend did not quote: While there are some grounds for fixing the age as low as sixteen, it is obvious that however 'mature' a boy of that age may be as regards physical development and psychosexual make-up,"— my noble friend made the point about maturity at a younger age— and whatever analogies may be drawn from the law relating to offences against girls, a boy is incapable, at the age of sixteen, of forming a mature judgment about actions of a kind which might have the effect of setting him apart from the rest of society. Then, a line farther on, with regard to young men between 18 and 21, the Report says: We have, however, encountered several cases in which young men have been induced by means of gifts of money or hospitality to indulge in homosexual behaviour with older men, and we have felt obliged to have regard to the large numbers of young men who leave their homes at or about the age of eighteen and, either for their employment or their education or to fulfil their national service obligations, are then for the first time launched into a world in circumstances which render them particularly vulnerable to advances of this sort. I am bound to say that my noble friend Lord Huntingdon appeared to put a strong case, but it is the view of the Government that the views expressed by the Wolfenden Committee in paragraph 69 on this point carry very great weight and ought to be decisive. In other fields of behaviour, the law recognises the age of 21 as being appropriate for decisions of this kind. For example, it is at that age that a man is held to be capable of entering into legal contracts, including marriage. Apart from legal and medical technicalities, we believe that it would be accepted as a matter of ordinary usage that a man should come of age at 21. We believe it is a matter of common sense and of logic that at the age of 21 a man should be regarded as mature and responsible for his actions. Of the three gradations, 80, 25 and 18, it would seem that 21 may be accepted as the mean age for adulthood, and I think that as a matter of commonsense, that would be the thing to do.

THE LORD BISHOP OF CHICHESTER

May I support what the noble Lord, Lord Stonham, has just said? Within the two ages, 18 and 25, the standard age of 21 seems to fall as quite the natural answer. I admit the average is slightly queered by the intervention of the noble and gallant Viscount and his particular age. It is clear that the Wolfenden Report considered in close detail all the arguments, and we could go on for a long time analysing the point of when psychologically, physically or civically a person becomes fully responsible for his own judgments, fully matured in his own feelings, fully able to assess the situations and the pressures of other people around him. Clearly this would vary greatly between one individual and another. For that reason, I think the Wolfenden Committee were wise in coming down on what would be recognised by the general public as the normal age at which everyone might rightly expect to have full responsibility for his actions, and if he pleaded irresponsibility at that age no one would support him in it.

I think that to advance the age to 25, tempting though it may be, is unrealistic, unless it was balanced by a similar kind of advance to 25 in many other ways in which people are responsible for their own lives, contractual obligations and the like. Therefore, tempting though it is, I do not think that we could carry it through. On the other hand, in spite of all the arguments for an earlier age which have been so forcefully put again by the noble Earl, Lord Huntingdon, there are certain obvious reasons why we should wish to retain within the area of general protection young men up to the normal age of 21. One is because many of them, whatever their condition and development at 18, are just at that age going into a number of occupations which call them into peculiar and different situations. For instance, many of them go into the Services—but that is being dealt with on an Amendment that follows.

Another serious situation arises with the developing educational programme. More and more young men will be going away from their homes, for the first time, it may be, at the age of 18, to go to university or to further education of some sort. They are then in new kinds of communities, rather artificial communities, in which there are a great number of young people together, experimental communities, in which they are themselves growing and curious and perhaps a little less on their guard. I think it is our duty, if we can sustain it, to see that within that general field of education we should carry up to the age of 21, the age provided in this Bill, a great degree of provision for their security, rather than leave them at an early age still to feel their own way in a society which is extremely complex and extremely difficult for many young men to see their way through.

THE EARL OF ARRAN

I welcome the spirit of both the Amendments put down. One is concerned with the protection of youth and the other with justice and reason, and all these things are close to our hearts. Taking the Amendment of the noble Lord, Lord Saltoun, I honestly think that he is going too far in his excellent intention. There comes a time in every man's life when he has to make his mind up for himself, when he has to be a free agent and legally responsible for the things he does. He has a vote at 21, and though some would say that that age has been fixed arbitrarily, on the whole it works pretty well. Why should we make this one exception in this one aspect of life? And why 25?—why not 35 or 45 or, as it has been suggested, 80?

I have more sympathy with the Amendment of the noble Earl, Lord Huntingdon. I confess that it will be an utterly illogical position if the age of consent for a girl is 16 and for a man 21. How can we possibly defend it in logic? Are girls tougher than boys, better able to look after themselves than boys? Surely not. Surely we must still regard women as the weaker sex. There is this great complication, adverted to by the noble Earl, that girls have babies and boys do not. I find it difficult to resist the Amendment of the noble Earl, Lord Huntingdon. But I do so, all the same. I am no slavish follower of the Wolfenden Committee's Report, but the more I hear it referred to, the wiser the document seems to be. But, after considerable discussion, they decided that 21 was the best age; and they were probably right. It may well be that if experience shows, as I think it will, that we are being over-cautious in the matter, and reform, if it comes, will not open those dreaded, and I think imaginary, flood gates to the whirlpool of homosexuality, there may be further legislation. Meanwhile, let us play it safe. If the noble Earl, Lord Huntingdon, presses his Amendment to a Division—and I shall well understand it if he does—I personally will abstain. In logic, I must be with him; but I am afraid lest we go too far.

VISCOUNT MONTGOMERY OF ALAMEIN

It would seem that we can make some progress in this battle, and if it will help in any way I beg leave to withdraw my suggested Amendment for the age of 80, and let us get on with the battle.

THE EARL OF ARRAN

I am grateful to the noble and gallant Viscount. Nobody has a better sense of humour than he, and I share that with him. But we have to be serious in this debate and, as he says, we must press on.

LORD BROCKET

I spoke on the noble Earl's Motion originally and in the Second Reading debate, and my views are therefore well-known. I am against the Bill, and having voted in favour of the Amendment moved by the noble and learned Viscount, Lord Dilhorne, this afternoon, I am willing to do anything to prevent this Bill from becoming law. But in this particular case we have had an interesting debate, and I must say I am quite relieved that the noble and gallant Viscount has withdrawn his Amendment. I notice that he said that if blackmail were demanded of anyone of 80 he would be in receipt of the old age pension anyhow and that would be useful. Of course, that starts a little earlier, and he might have withdrawn it and gone down by easy stages. But in this case I think the Wolfenden Report defeats the suggestion of the noble Earl, Lord Huntingdon, of a reduction to the age of 18. I am not going to read out anything of paragraph 71, but it is well argued; and I think the noble Earl, Lord Arran, is right in saying that the conclusions reached at the end of paragraph 71 are right.

I should like to say one other thing. The noble Earl, Lord Arran, used the words, "Let us play it safe". I should like to play a little safer. I have previously said in this House that if teenagers have inclinations this way, and if this Bill becomes law, they will say: "Everything is all right when I am 21. Therefore, I am going for this particular form of perversion". I should like to give them the little extra age suggested by the noble Earl, Lord Iddesleigh, of 25. Therefore, if it comes to a vote on these Amendments, I will support the Amendment moved by the noble Earl, Lord Iddesleigh.

THE MARQUESS OF HERTFORD

I was greatly impressed by the arguments of the noble Earl, Lord Iddesleigh, and I should have been more impressed by them had I not read the Wolfenden Report. Until I read the Wolfenden Report, I was certainly under the impression that the young man between the age of 18 and 25 was very liable to be influenced in this matter by a homosexual friend. But it appears that I was wrong. I think others of your Lordships may well have thought alone the same lines. But if you read carefully the relevant part of the Wolfenden Report, you will find that the Committee, which, after all, studied the matter for, I believe, three years, came out clearly with a statement that a man's sexual inclinations are fixed either at birth or in the first few years of his life. Therefore, it would not seem to be terribly important if a man of about the age of 21 does or does not have a homosexual experience with another man. If he is a homosexual by nature, he will sooner or later feel those inclinations; and if he is not, he will almost certainly revert to normality as soon as opportunities offer. For that reason, I do not think that one need be too worried about the possible dangers of homosexual behaviour in universities. Therefore, I would support the noble Earl, Lord Arran, in leaving the age at 21.

THE EARL OF IDDESLEIGH

I am grateful to the noble Lord, Lord Brocket, for his support. I have not received the support I had hoped for from another quarter, or general support from the Committee, and I should not wish to put your Lordships to the trouble of a Division. I am bound to say that I cannot accept for one moment the view that homosexual inclinations are formed at birth or shortly afterwards. All experience contradicts this. If we consider the most noted case of a homsexual prosecution in this country, there was a man with a wife and two children, and a mistress, who afterwards took up homosexual practices. It is completely contrary to all experience to say that homosexuals are formed at birth or at any early age. I hope that we shall not hear this argument again. I will not trouble your Lordships to divide. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

THE EARL OF HUNTINGDON had given notice of an Amendment to leave out "21" and insert "18". The noble Earl said: I do not want to say much more on this Amendment, but just to answer the noble Earl, Lord Iddesleigh, I would say that it seems rather contradictory to go against all the medical evidence of the Wolfenden Report in regard to the sexual pattern being formed in childhood. I do not know the case the noble Earl referred to, of the homosexual, who, I think he said, had a wife and children.

THE EARL OF IDDESLEIGH

It was a man who had a wife and two children, and a mistress, and then he became a homosexual.

THE EARL OF HUNTINGDON

I think one of the important arguments I left out was that some genuine homosexuals really do try to make a marriage, but in the end it is usually a wreck, as this one was. However, as everybody seems to be divided, if it pleases your Lordships, I will not move my Amendment.

VISCOUNT MONTGOMERY OF ALAMEIN

And it seems that 80 is out.

5.57 p.m.

VISCOUNT DILHORNE moved to add to the clause provided that the parties thereto are not members of the armed forces". The noble and learned Viscount said: After that interesting discussion on age limits, which covered a very wide range of ages (and whether or not we have reached the right decision on it we can at least come back to it on another occasion) we now turn to another subject which I consider to be one of considerable importance. Your Lordships will not need to be reminded of the powerful speech made by my noble friend Lord Montgomery of Alamein on Second Reading, when he drew the attention of the House to the position of the Armed Forces under this Bill as it then stood. He then said: If these unnatural practices are made legal, a blow is struck at the discipline of British Armed Forces.…."—[OFFICIAL REPORT, VOL 266 (No. 79), Col. 647, May 24, 1965.] He said that with all the weight of his authority. Then, your Lordships will recollect, an argument developed with regard to Section 66 of the Army Act. There are similar sections in the Air Force Act and in the Naval Discipline Act, but for the sake of convenience I will refer only to the Army Act.

LORD REA

Would the noble and learned Viscount excuse me? Am I wrong in thinking that it was decided to discuss this Amendment with No. 13? Is he addressing himself to both?

VISCOUNT DILHORNE

The noble Lord, Lord Rea, is wrong in thinking that at this stage. I was going to say something about my Amendment, then refer to the other Amendment, and suggest that we should not be out of order to discuss the other Amendment. I shall ask the Committee to divide on the Amendment I am moving and I shall explain why, although, so far as I can see, on this occasion the noble Earl, Lord Arran, has come some way to meet me.

THE EARL OF ARRAN

I think our Amendment goes further than the Amendment of the noble and learned Viscount.

VISCOUNT DILHORNE

I hope the noble Earl is right; but I shall be most surprised if he is. Intentions are one thing—

LORD SHACKLETON

May I interrupt—

VISCOUNT DILHORNE

I should like to get on.

LORD SHACKLETON

Do I understand that the noble Viscount is hoping to speak on the subject of Amendment No. 13, because clearly it will save the time of the Committee if we can discuss them together. This would seem to me to be a convenient moment. I am all for the noble and learned Viscount getting on, but it would seem to be for the convenience of the Committee to discuss the two together.

VISCOUNT DILHORNE

I hope to speak to the Amendment I am moving. I shall have no objection to any reference being made to the Amendment in the name of my noble friend, which is No. 13. I do not go quite so far as to say I have been looking forward to speaking on that Amendment, but the two are related.

I was reminding your Lordships of the discussion which took place when the noble Lord, Lord Shackleton, I think it was, intervened in the speech made by my noble and gallant friend Lord Montgomery of Alamein on Second Reading as to the effect of this Bill on Section 66 of the Army Act. That section makes it possible to punish those in the Army who are guilty of disgraceful conduct of an indecent or unnatural kind. I said in the course of the Second Reading debate that, as this Bill in terms states that it is to take effect notwithstanding any statutory or Common Law provision, it must override Section 66 to this extent: that no one in the Armed Forces who is over 21 could be convicted under Section 66 by court-martial of homosexual conduct with a consenting adult.

I have thought about the matter again since our debate, and I adhere to the opinion I expressed then. It is to make clear beyond all doubt that this Bill, if enacted, would not affect members of the Armed Forces that I propose to move this Amendment. I put it down a very short time after our Second Reading debate. Later on on the Order Paper there is Amendment No. 13 in the name of my noble friend Lord Arran and others of his friends. The object of the Amendment, if I understand it correctly, is to leave Section 66 with its full effect, but to let this Bill override Section 70 of the Army Act, 1955. That is the section which makes it possible to charge before a court-martial a member of the Armed Forces with an offence against the criminal law. The purpose of that Amendment would seem to me to permit the charging of a member of the Armed Forces with disgraceful conduct of an indecent or unnatural kind, but to prevent a member of the Armed Forces who committed buggery from being charged with that offence. I must say that I cannot see any valid reason for that distinction. If a member of the Armed Forces does commit that offence, why should he not be charged with it? Why should it be sought to put a gloss on the offence by describing it as "indecent or unnatural conduct"?

My noble friend made a very powerful speech on Second Reading (or it may have been the earlier debate) saying that these acts which are called "unnatural" are natural for homosexuals. If the Amendment that he is to move is carried, it will be open to the defence before a court-martial to argue that conduct of a homosexual character was not, if it was committed in private, indecent and not unnatural. Whether or not that argument would prevail, I do not know; but if we were to deal with it in the way the noble Earl proposes we should be creating that opportunity for debate and argument before a court-martial, and a great opportunity, it may be, for barrack-room lawyers. Courts-martial, of which I have had some experience in years gone by, take long enough in all conscience, without raising this further opportunity.

I can see no point in the distinction made by my noble friend in his Amendment, if I have understood it correctly. Instead of seeking to affect one part of the Army Act, one part of the Naval Discipline Act, and one part of the Air Force Act in their application to members of the Armed Forces, I put down this simple Amendment to make it perfectly clear that this Bill should not operate at all in relation to any members of the Armed Forces. I do not think I need add anything to what I have said. I do not think that any Amendment in this context, in seeking to make the Bill not apply to members of the Armed Forces, could go further than mine, and I can see no valid reason whatsoever for the limitation which is proposed in my noble friend's Amendment. The fact that it has gone a little way to meet the point of view expressed on Second Reading will, I hope, induce the noble Earl now to go this further stage and to make it quite clear, by the acceptance of this Amendment, that this Bill is not to apply to members of the Armed Forces. I beg to move.

Amendment moved— Page 1, line 7, at end insert the said words.—(Viscount Dilhorne.)

6.7 p.m.

THE MINISTER OF DEFENCE FOR THE ROYAL AIR FORCE (LORD SHACKLETON)

It might be for the Convenience of your Lordships if I intervened at this point, and I hope your Lordships will agree, since we are really considering the merits of different Amendments, that we should also discuss at this moment Amendment No. 13. I intervened during that rather extreme speech by the noble and gallant Viscount, Lord Montgomery of Alamein, purely from the standpoint of the Services. I should make clear again that, whatever my personal views about this Bill, I am arguing from a Departmental point of view. I am not concerned with the merits of this particular Bill.

I must first of all disagree with the noble and learned Viscount that the Army Act or the Air Force Act does not adequately provide the powers that are necessary, and I am surprised that he should suggest that, whatever the civil law should be, homosexual acts between Servicemen would not be described as disgraceful conduct. And I am surprised that he should think that the passing of this Bill would alter the judgments involved. Of course, this particular section of the Act to which he referred is not the only one; indeed, the Amendment, as I understand it, is so drafted as to provide for action under other sections—for instance, Section 64, which refers to officers who behave in a scandalous manner. Again, I hope that the noble and learned Viscount would accept that courts-martial would regard this as behaving in a scandalous manner. There is another section under the Air Force Act, Section 69, "Conduct to the prejudice of Air Force discipline", the penalty for which can be a considerable period of imprisonment, which I should have thought was at least comparable to the imprisonment which may be ordered by the courts where they order imprisonment in such cases as these.

It may be convenient for your Lordships to know that although, from the technical point of view, the Amendment in the name of the noble Earl, Lord Arran, is not, as now drafted, entirely satisfactory, it is the view of the Government that we ought not to oppose it. However, I hope that the noble Earl will accept an Amendment on Report stage to leave out the words "save and except", and from there on; but this is a detail into which we can go later.

VISCOUNT DILHORNE

May I interrupt the noble Lord? I should like to follow what he is saying. If he is suggesting that we leave out the words "save and except" and the words which follow on, then there is nothing between us except the language in which it is expressed. There is nothing in content between that Amendment, as so amended, and the Amendment standing in my name; that is to say, that the Bill will not apply to proceedings under the Army Act, the Air Force Act or the Naval Discipline Act. If that is the noble Lord's view, it is very different from Lord Arran's Amendment, but is entirely in accord with the Amendment that I have put down. I hope that the noble Lord will make the position clear.

LORD SHACKLETON

If the noble Viscount will allow me to make my speech, I will come in a moment to his Amendment. The noble and learned Viscount's Amendment fails on legal grounds. The effect of his Amendment would be to make only Servicemen liable to prosecution in the civil courts for behaviour which is no longer an offence for the rest of the population. I am sure that it was not his intention that matters which normally fall within the disciplinary and legal responsibility of the Services should, in respect of these offences, be transferred to the civil courts. We should have a most anomalous position in which the civil courts would be in a position of having to take action on homosexual offences only in relation to Servicemen.

I speak having been fully advised on this matter, and the noble and learned Viscount said that he had put down his Amendment in a good deal of a hurry. I do not disagree with his general approach, and I am sure the noble Earl, Lord Arran, does not disagree with it. But I hope that the noble and learned Viscount will not press his Amendment, on the grounds, first, that it would mean transferring to the civil courts offences which rightly belong to the Services to deal with, and, second, that it is the view of the Service advisers, who certainly have not at any time expressed views for or against this Bill, that the provisions of the present Act take care of this particular matter. If necessary, my noble and learned friend the Lord Chancellor would, I am sure, support this view. In those circumstances, I hope that the noble and learned Viscount will agree that his Amendment would not quite achieve what he set out to achieve.

VISCOUNT DILHORNE

I have listened with great interest to what the noble Lord has said. There seems to be far less between his view and mine than I thought from his introductory remarks. I would make it perfectly clear that I was not suggesting that if the argument was put forward that this conduct was not indecent, or unnatural, it would necessarily succeed. What I was saying was that if proceedings for what is now sodomy are to be brought under Section 66, or under the section charging behaviour in a scandalous manner—or, indeed, conduct to the prejudice of good discipline—it would be open to argument and would be a matter for the court in each case to decide whether the conduct proved comes within that general description.

The point I was making was that, if a man is charged with committing sodomy, it seems to me that there is a great deal to be said for letting him be charged with that offence before a military court. I thought I had made it clear that I was concerned to keep in effect Section 70 of the Army Act, and the equivalent sections of the other Acts. Those sections provide that any person subject to military law who commits a civil offence, whether in the United Kingdom or elsewhere, shall be guilty of an offence. It is under those sections that the courts-martial now have power, and would continue to have power, to try persons charged, for instance, with gross indecency. Unless Section 70 applies, a person cannot be charged on a civil charge before a court-martial.

When the noble Lord, Lord Shackleton, tries to shoot down this Amendment by saying that it would transfer jurisdiction to the civil courts, I must say, with the greatest respect to him, that that is really complete rubbish. The jurisdiction is kept by the courts-martial under Section 70 of the Army Act and the equivalent sections in the other Service Acts. What he might have said was that if my Amendment was accepted it would be possible for a trial to take place for these offences in the civil courts; but when he accuses my Amendment of being bad in law because it would transfer jurisdiction from the courts-martial to the civil courts, I am afraid that he has not correctly appreciated Section 70 of the Act. So long as it is perfectly clear that Section 70 will remain in full effect—although I will certainly consider what the noble Lord has said—I think that that would be acceptable to me. However, I would ask the noble Lord to bear in mind that this Bill is not removing sodomy entirely as a criminal offence, nor is it completely abolishing the offence of gross indecency. It is making them not an offence only where the act has been between consenting adults; so that we are not getting a complete repeal of the existing law.

Of course, I did not know what attitude the Government would take either to my Amendment or to that of the noble Earl, Lord Arran, but if there is agreement as to what we want to achieve, the finding of a correct form of words should not involve insuperable difficulty. I want to be quite sure that Section 70 is preserved in fact, and that this particular Bill does not tamper in any way with the Army Act, the Air Force Act, or the Naval Discipline Act. If that is secured, I shall be perfectly prepared to agree to it; and if the noble Earl, Lord Arran, is prepared also to express his agreement with what the noble Lord, Lord Shackleton, has suggested, I am ready, subject to what my noble friends may say, to withdraw the Amendment that I have moved. But I want to consider carefully the Amendment that the Government move and reserve the right, if I am not satisfied with it—because I think it is an important matter—to table a further Amendment on the Report stage.

LORD BOOTHBY

I make no claim to the legal knowledge of the noble and learned Viscount, Lord Dilhorne, or, indeed, of the noble Lord, Lord Shackleton, who has equipped himself so well with legal knowledge for this debate, but it seems to me that the point at issue between the noble and learned Viscount and the noble Lord is extraordinarily narrow. Reading the Amendments as a pure layman it seemed to me that my noble friend Lord Arran went rather further than the noble and learned Viscount, Lord Dilhorne. I think it might be helpful to the House if the noble and learned Lord the Lord Chancellor gave us an opinion, but if he is not prepared to do so to-day perhaps he could do so at the Report stage. It seems to me that the issue is indeed a narrow one. The two noble Lords have come very near to agreement, and it seems to me that by discussion between them they can come to agreement, and therefore perhaps the noble Viscount would see his way to withdraw his Amendment

6.20 p.m.

LORD SHACKLETON

I do not know whether the noble Earl, Lord Arran, is going to contribute to this debate; it would clearly be to the satisfaction of the noble and learned Viscount if he were to do so. Perhaps I might say that I do appreciate the rather esoteric but none the less fundamental points that the noble Viscount made, that there are certain offences which will still remain offences after the passing of this Bill, and there is of course no intention—and I will deliberately state this—to repeal Section 70 of the Air Force Act. I think that is the same as the corresponding section in the Army Act, and I would certainly give the noble Viscount that guarantee. Perhaps the noble Earl would indicate that he would be prepared to consider a further Amendment on Report stage. Indeed, were it not for the fact that it might make the Committee more happy to have his Amendment in, so far as it goes, it might have been better to have left it to the Report stage. I think this will go a long way to meet the point. On this, as the noble Viscount says, there is not much difference between us. I am always nervous at tangling with Lord Chancellors or ex-Lord Chancellors on legal points. But I am sure we can get it satisfactorily agreed.

LORD BYERS

Since my name appears on the Amendment, may I say that I think the procedure suggested is a very good one? This is a highly technical matter. Perhaps discussions could take place before Report stage to get an agreed view. We are advised that exclusion of Section 70 is an important feature, and this is what we would have divided on. I would suggest that we should defer it to the Report stage and not technically agree to the Amendment the noble Viscount has indicated. I should like to know at a later stage exactly what relationship it will have to Sections 12 and 13 of the Sexual Offences Act, 1956. I think there is more to it than the simple Amendment which the noble Viscount has suggested.

VISCOUNT DILHORNE

I have done my best to understand that. It is very difficult to deal with questions of drafting at the present moment. I do not think the noble Earl, Lord Arran, was here when we started this discussion. Also, I do not think my noble and gallant friend the Field Marshal was here.

THE EARL OF ARRAN

I was here.

VISCOUNT DILHORNE

I was right about one. What I should like to see whether we can get agreement upon is this: so far as members of the Armed Forces are concerned, if they commit gross indecency together or sodomy or any homosexual activity when they are over 21 they will be triable by and can be dealt with by court martial. That is all I am wanting to secure. But I go one stage further than that and say if they have committed sodomy I think they ought to be charged with that offence, and I say that for the rather technical reason that it would deprive them of possible arguments of the nature I have suggested; and that is why I should like to see Section 70 retained in operation in this context. I would be perfectly prepared to withdraw this Amendment but for the words which fell from the noble Lord, Lord Byers. We could perhaps agree to have a meeting to discuss this.

There is one further point which I did think would be commented upon as a possible ambiguity in the Amendment in my name. I am glad it escaped the notice of the noble Lord, Lord Shackleton. We spoke about misconduct between members of the Armed Forces. I am not sure whether it is the view of the Committee that if misconduct is committed between a member of the Armed Forces and a civilian the member of the Armed Forces should still be subject to military discipline for that conduct. I would have thought it would be right he should be. But if that be so, that again is a matter which we should consider. I am not trying to waste time, but I do regard this as a very important question. Before we have our discussions I do think it would be useful if we could get at least the tentative view of this Committee as to whether a member of the Armed Forces who takes part in misconduct should remain within the scope of military discipline, whether it be with another member of the Armed Forces or with a civilian. I would have thought it would be right that should be so, and if it is so and we have agreed I do not think the drafting of the necessary Amendment would be very difficult. If that is agreed, I would certainly ask leave to withdraw the Amendment.

THE EARL OF ARRAN

I am going to speak very briefly, but as my name is on the Amendment and I have been referred to, speak I must; and also because on Second Reading I gave the House, speaking through the noble and learned Lord on the Woolsack, an assurance that Section 66 of the Army Act would be preserved. We should like to think we have gone further in our Amendment than the noble Viscount has, and for the very good reason that so far as it reads at the moment his Amendment seems to indicate if two members of the Armed Forces do something wrong together they can be court martialled, but if it is done by a civilian and a member of the Armed Forces it would seem that the charge might not be enforceable. I want to make it absolutely clear to your Lordships that we feel very strongly on this point. I know many of your Lordships feel equally strongly. I can only say that we have no intention to allow homosexual law reform, if it should become law, to interfere in any way in the discipline of the Armed Forces on which the safety of this country depends.

LORD SHACKLETON

Perhaps I might reply briefly to the noble and learned Viscount. I should not like to-day to advise on what matters should properly fall within the jurisdiction of Service courts and what should fall under civil courts. I take his point. But I think this is clearly a matter on which I should express no opinion, because it might well be that the military authorities will not wish in such circumstances, where a civilian was involved, to exercise jurisdiction. So I would not want to mislead the noble Viscount. Quite clearly anything involving members of the Services is a matter of great concern to the Services. In these circumstances, I suspect the noble Viscount will be satisfied as of now. I understand that the Report stage is to be next Monday, so we shall have to talk rather quickly, and I understand the noble Earl, Lord Arran, would be prepared to have talks at any rate before whenever we next meet.

LORD BOOTHBY

But it is absolutely vital, I think, to get this question perfectly clear. I think the noble Viscount is absolutely right. I think the view of this House is overwhelmingly in favour of the Services Acts: that is to say, that disgraceful conduct between members of the Services should be punished by court martial. But I think that if you once get into the realm of trying to punish offences committed between members of the Forces and civilians in civilian courts you will get in the most awful mess. The Committee must make up its mind about this.

VISCOUNT DILHORNE

I was never for one moment contemplating, nor indeed was I suggesting trials before a civilian court where a member of the Armed Forces and a civilian were involved. The point I wanted to get established and recognised, as I think the noble Lord has done, is that a member of the Armed Forces who commits such conduct should be amenable to military, naval or Air Force discipline. That is what I wanted to see secured. It may be that as a sort of backhander my Amendment preserves some jurisdiction of the civil courts. But my experience has been—the situation may have changed now—that offences of this sort committed in this country are not ordinarily tried in the Assize Court, but by court martial. That may have been altered, and I may now be wrong. But I am quite willing to discuss this question with the noble Lord. I think we are clear in our minds what we want to achieve, and, in the circumstances, I beg leave to withdraw the Amendment.

LORD MOLSON

Before the noble and learned Viscount withdraws it, may I say that the point that has been under discussion is whether the case of some homosexual offence by a member of the Services with a civilian should be punishable, and punishable by court martial. It appears to me that there is great danger—

LORD BOOTHBY

Not in the civil court.

LORD MOLSON

We have to be most careful about this matter. I think we might find a position which would be really most unjust, where a soldier would be subject to punishment and the civilian would not. So it is of the utmost importance that this matter should be safeguarded.

VISCOUNT DILHORNE

That can happen now. That is one of the necessary consequences of the acceptance of enforcement of military discipline. I do not think that is a valid argument at all. I am quite content to leave the matter, on the understanding that we can have talks to try to achieve our object. I ask leave to withdraw this Amendment.

Amendment, by leave, withdrawn.

6.32 p.m.

VISCOUNT DILHORNE moved to add to the clause: ( ) The commission of any such act when more than two persons are present shall not be deemed to be in private.

The noble and learned Viscount said: I do not know how long the noble Earl, Lord Arran, intends to ask us to continue this evening, but I think this is a most important Amendment and I rather hope that we can have a full discussion upon it. The Amendment is to deal with the question of privacy. The Wolfenden Committee did not seek to define what they meant by the words "in private". The Report contained no definition of what "in private" meant. But the Committee did say 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 may be likely to see and be offended by it.

I see that the Amendment of the noble Earl, Lord Arran—Amendment No. 20—seeks to give effect to that intention as expressed by the Wolfenden Committee. To me, the commission of a heterosexual or homosexual act in private means something quite different from applying the test whether any member of the public is available to see it or whether it is committed in a public place. I would remind your Lordships that on Second Reading reference was made to what are commonly called "buggers' clubs". Presumably, they operate on private premises. If this Amendment is rejected and that of the noble Earl is carried, as I see it, it will mean that buggers' clubs can operate with complete impunity. Then, again, if a house in a town or in a country village becomes a place of resort by sodomites, it need not necessarily constitute a brothel but a place of common resort that is bound to give rise to great scandal. Yet this Bill, even if Amendment No. 20 is accepted, will make such conduct lawful.

I put this question in all seriousness to the noble Earl and others who support this Bill: is that really what they want? Surely, the right test is this: that the conduct shall be deemed to be in private unless more than two persons are present when the homosexual conduct takes place. If there are only two people, then, surely, that can be regarded as in private, unless of course it takes place in a public place. But then there will not be just two people together. If that test is taken, then it prevents this Bill from becoming a charter for these buggers' clubs, which really do exist. I do not myself think that many people will consider that heterosexual intercourse in the presence of more than two persons was taking place in private. But if you accept my noble friend's Amendment, then homosexual conduct taking place between more than two persons can still be taking place in private.

I do not think I need say any more about this, except to suggest to your Lordships that if this Amendment is accepted it will make the Bill much more workable and much more acceptable. When one looks at Amendment No. 20, one has to determine that the place where the act was committed was not a public place. The words "in private" mean in a place which is not a public place. One does not wish to have an argument as to what really constitutes a public place. In my noble friend's Amendment a "public place" is defined as meaning any highway, public path or garden, any sea beach and any public bridge, road, lane, footway, square, court, alley or passage, whether a thoroughfare or not; any public lavatory or cubicle therein; and those portions of any building or open space to which, at the time of the alleged offence, the general public have a right of access, whether on payment or otherwise. If that Amendment is carried, any homosexual activities which are conducted in a place which does not come within a "public place" as so defined are to be held as committed in private. I must say that I think that is not right. I think that the right test—it is quite a simple test—is as I put it in this Amendment—namely, the commission of any such act when more than two persons are present shall not be deemed to be in private. I beg to move.

Amendment moved— Page 1, line 7. at end insert the said subsection.—(Viscount Dilhorne.)

6.39 p.m.

THE LORD ARCHBISHOP OF CANTERBURY

I should like to support the Amendment just moved by the noble and learned Viscount. I think that his Amendment hits upon a workable definition of the words "in private" which will improve the measure. His Amendment will clearly bring clubness, and anything approaching clubness, still under the condemnation of the law. I feel it my pleasure and duty to support the noble and learned Viscount.

LORD BOOTHBY

No doubt to his amazement, I find myself in total agreement with the noble and learned Viscount; and if this Amendment is pressed to a Division I will support it.

THE EARL OF HUNTINGDON

I am afraid that I find myself in total disagreement with the noble and learned Viscount, because I think this is an extraordinary definition of "privacy" which is altering the whole basis of what, up till now, has been the law. Suppose it were to be taken as a precedent that the amount of people in a room made it public rather than private. To take ridiculous examples, if a married couple in summer weather were sitting up in bed in the morning, the lady being clad only in her nightdress, one supposes that that would be perfectly all right, and perfectly legitimate; but on this basis, when the maid came in with the breakfast, bringing the number in the room up to three, it would then be a public place. Or supposing the noble Lord is having a late supper with myself—

VISCOUNT DILHORNE

The noble Earl, in the instance he has given, is not suggesting that anything improper is taking place. It depends what they are doing.

THE EARL OF HUNTINGDON

Surely if she were in a public place dressed only in her nightdress, that under this definition would be improper.

VISCOUNT DILHORNE

I am not suggesting that this is a public place. I am abandoning the test of "a public place". My Amendment just says: The commission of any such act"— that is, an act of an homosexual character— when more than two persons are present shall not be deemed to be in private.

THE EARL OF HUNTINGDON

That surely strengthens my point of view. I was giving an illustration of the married couple who are in bed, and who are then in private, but was pointing out that immediately the maid comes into the room with breakfast, there are three people, and presumably that puts the matter out of the category of private. In other words, so long as there are two people present they are "in private"; but the moment the third person comes into the room the situation is different. Think of the complications that might arise when having a light supper with a bottle of port, with two people dining together. When two friends came in would that mean that one could not serve them with a glass of port because one would require a licence.

Those are exaggerated examples, but I suggest that the definition of "in private" as being when not more than two people are present might lead to extraordinary abuses and difficulties. Surely the difficulty could be more simply overcome by saying that anywhere that was not private would be a public place; a place to which the public, either by payment of money or any other ways, have the right of access. That would seem to me to be a form of words which would define "a public place".

BARONESS HORSBRUGH

Are we trying to define "a public place" or "in private"? I thought that our object was to find a clear definition for "in private".

LORD BOOTHBY

Before the noble Earl replies, does he not realise that most people who wish to indulge in sexual activities of any kind prefer to do it alone?

THE EARL OF HUNTINGDON

I agree. I am only saying that it is setting a dangerous precedent to lay down that whenever there are more than two people in a room then it is no longer in private. That is all I am suggesting.

LORD BOOTHBY

You don't want an audience.

THE EARL OF HUNTINGDON

I am suggesting on the other hand, that it would be easier to define what is "in public", as the noble Earl seeks to do in a later Amendment. Then one can automatically say that what is not in public must be in private. That would be an easier way. I suspect that the matter of homosexual clubs, and so on, is much exaggerated. In any case an Englishman's home is his castle. I do not follow the idea of defining "in private" as related to when three people are in the room as against two. It seems to me to be stretching the point.

LORD BOOTHBY

It spoils the whole thing.

6.45 p.m.

THE EARL OF ARRAN

I naturally respect the purposes of the noble and learned Viscount's Amendment. No one likes the idea of homosexual orgies. If it comes to that, no one likes the idea of heterosexual orgies, either. As these "buggers' clubs" have been referred to, perhaps the noble Lord, Lord Stonham, could tell the Committee to what extent they exist. The principle, surely, is that if people wish to make love, they do not want to do it in the presence of others. To try to define what is meant by the words "in private" seems to me to be an impossible task. No one, I am advised, has ever attempted it in the English law, except in the negative formula which means that "in private" means in a place which is not a public place.

The noble and learned Viscount is now laying down a new definition of privacy which, I am advised, will seriously affect the law of the land. We for our part are more diffident. We stick to Wolfenden, paragraph 64 of the Report, which says: Our words 'in private 'are not intended to provide a legal definition. Many heterosexual acts are not criminal if committed in private but are punishable if committed in circumstances which outrage public decency, and we should expect the same criteria to apply to homosexual acts. It is our intention that the law should continue to regard as criminal any indecent act committed in a place where members of the public may be likely to see and be offended by it.… It will be for the courts to decide, in cases of doubt, whether or not public decency has been outraged, and we cannot see that there would be any greater difficulty about establishing this in the case of homosexual acts than there is at present in the case of heterosexual acts. That sounds to me good sense. But, in fact, as Lord Dilhorne pointed out, we have gone a little further, and have attempted a definition of what constitutes "in public". It is an easier thing to do. We have taken as our precedent, in particular, the Public Order Act, 1936, which I think is almost word for word the same. Perhaps we have gone too far, and your Lordships may decide that we should rest content with the definition in line 3 of Amendment 20: 'in private' means in a place which is not a public place". I should be happy to have that, if that were your Lordships wish.

These are points of law and I am quite unable to dispute them. As your Lordships know very well, I know nothing whatever about the law. Where I should like to challenge the noble and learned Viscount is on the battleground of common sense. What does Lord Dilhorne's Amendment imply? It means simply that there must be no one else in the room when the homosexuality takes place, otherwise it becomes a crime. In short, the people must lock the door and make sure they are alone. Laying aside the fact that few people, heterosexual or homosexual, are so depraved as to wish others to witness their erotic activities—and depravity is not the monopoly of homosexuals—who are the other people likely to be? A policeman looking through the window or hiding behind the curtain?—for under the terms of the Amendment the police would have the right to secrete themselves if they had reason to suspect that a homosexual act was likely to take place. Or the milkman on his daily round? The man selling life insurance? Immediately upon their entrance, fortuitous or deliberate, it ceases to be sin and becomes a crime. "I happened to be passing", says the third party, "and I saw …". Could there be anything more conducive to blackmail? Could there be anything more absurd?

As I have said, I see the point and purpose of the Amendment; indeed, I sympathise with it. But these, I submit, are not very good arguments. They are based largely on prejudice and upon emotion. Once again the wish is to discriminate between homosexual and heterosexual sin: to make, as it were, one law for the rich and another for the poor. Let us make no mistake about it, the heterosexuals are rich indeed in the blessings conferred upon them. For my part I regret that I cannot accept the Amendment.

VISCOUNT DILHORNE

I shall ask your Lordships to support me in the Lobby. When the noble Earl refers to people passing by, I would point out to him that that is the very test suggested by Wolfenden in paragraph 64, which I read and which he read again. If a person passing by sees the act, then it is suggested by Wolfenden that it should be a criminal act. I do not believe myself that the courts would apply that test in interpreting what is meant by the words "in private".

We are not contrasting here a private place and a public place, and that is where the noble Lord, as a matter of common sense, has gone wrong. What we are discussing is whether certain conduct takes place in private, and to determine that we can use our ordinary common sense. I would suggest to the Committee that the best test of privacy in that context is to say that it shall cease to be private if the commission of the act takes place in the presence of more than two people. That would exclude all these homosexual societies, clubs or whatever you like to call them, and I think it accords with the true intent of Wolfenden when it is correctly appreciated.

LORD STONHAM

I was not quite clear from the first remarks of the noble and learned Viscount, when he moved his Amendment, what he felt would be the extent of the effect of this proposed new subsection. I do not know whether he felt that the Amendment would have repercussions on the meaning of "in private" in relation to other offences. From our looking at it, it appears that the new subsection would stand on its own and it would apply only to Clause 1 of the Bill. I am grateful to have the noble and learned Viscount's affirmation of that. I was somewhat confused by the reference during his speech to Amendment No. 20, which contains a definition, and I should not like it to be thought because at this stage I am not commenting on Amendment No. 20, that we would necessarily accept what is said there. There are quite a number of questions which we can very usefully—

VISCOUNT DILHORNE

I am sorry if I misled the noble Lord. I spent quite a lot of time criticising Amendment No. 20, because it is very artificial in character. It is not really seeking to define what is meant by "in private", but to contrast a public and a private place, which are two different things.

LORD STONHAM

I am most grateful to the noble and learned Viscount, but I had to reserve the position until the end of the day. The only other point that I should wish to make, because I do not desire on behalf of the Government to express any opinion on the principle of this Amendment, is on the question of the buggers' clubs which was raised by the noble Earl, Lord Arran. I remember the graphic description which was given by the noble and learned Lord, Lord Goddard, during, I think, the debate on Second Reading, and of course I made it my business to see what information we had at the Home Office about these clubs. I am in some difficulty because I think we need a definition of what is meant. I should not have thought that the term, used in the way that the noble and learned Lord, Lord Goddard, used it, would be meant to cover, say, a number of men just dancing together. They might even be dancing together in a public place and would not necessarily be committing any indecency. I took his meaning to be places, houses, you might say male brothels, where men congregated together for homosexual purposes.

VISCOUNT DILHORNE

As I understand it—and I know of one or two of these cases—this description is usually applied when there is a whole collection of people who have gathered together in one place to engage together in homosexual activities.

LORD STONHAM

I am grateful for the noble and learned Viscount's confirmation, because that is exactly the kind of place about which I have information. My information is to the effect that in the 1930s there were several causes célèbres when, perhaps, 20 men were arrested in one house and charged at the same time with this offence of indecency, and in most cases a woman housekeeper was present and charged also. But my further inquiries have not revealed any similar cases in recent years—at least, known to the police. But I should mention, of course, that the noble and learned Lord, Lord Goddard, spoke about these cases as when he was on circuit.

VISCOUNT DILHORNE

Is there any record of these cases? Because when the noble Lord says that, I am afraid it conflicts rather with my recollection of what I have heard in recent years. I am not suggesting that these cases are many in number—I do not think the noble and learned Lord, Lord Goddard, did that—but they do occur from time to time. I think that was his point. There may be no record at the Home Office.

LORD STONHAM

I am not disputing that they may occur. I merely wish to point out that we have records of cases to which I referred which occurred some years ago, but similar cases have not come to our attention in recent years. I am quite prepared to accept that somewhere this sort of thing may still continue.

LORD DERWENT

I do not like to interrupt, but I think I am right in saying that the only Home Office records would be of cases taking place in the Metropolitan Police area. Is that not so? If it takes place in Birmingham or Liverpool, the Home Office would have no record of it.

LORD STONHAM

As the noble Lord will doubtless know, there are many occasions when we consult chief constables in other police forces, but on this occasion there has not been time to consult chief constables in the Provinces. But we have, of course, made inquiries in the Metropolitan area and I felt it right to mention that fact. Apart from that, I have no observations to make on this Amendment.

THE JOINT PARLIAMENTARY SECRETARY, MINISTRY OF LAND AND NATURAL RESOURCES (LORD MITCHISON)

May I, with great respect to all concerned and without wishing to take up more than a minute or two, just suggest that there is possibly room for further consideration here? The phrase used in the Wolfenden Report was "in private" and I suppose that what is not in private is in a public place. I can hardly see much distinction between the two. The term "public place" is used in the Streets Offences Act. There is no definition of it, but it has been held to be a place to which the public has access, whether on payment or otherwise. That is, I think, the foundation of some sort of definition, and if one looks at the Wolfenden Report itself one sees that that is the kind of test which they have in mind.

It is quite true that such words are not intended to provide a legal definition, but they suggest a question of the public's being able to look in, as it were. A place is public, says Stevens on Criminal Procedure, within the criminal law against indecency, if it is so situated that what passes there can be seen by any considerable number of persons if they happen to look. I think it may well be that if one sought to apply that, one would come to a definition which was rather wider than that suggested by the noble and learned Viscount, and rather narrower than that suggested by the later Amendment on the Order Paper. I believe that that is a possibility and, clearly, it is most advisable, if one takes the whole matter seriously, as indeed we are doing, that there should be a similar test in this Bill to that in the Streets Offences Act as regards indecency generally in the criminal law.

I do not think that the presence of two or more people is that kind of test at all, and one would get cases under indecency generally, or if you like under the Streets Offences Act definition, where someone was in public, while it was not so under what it is sought to introduce here. I suggest, therefore, with great respect to everybody concerned, and as a very junior and unlearned Member of this House, that it might be a good thing to look at this subject again. After all, there are going to be talks on other matters. This is a subject which could be dealt with at the same time, and it seems to me that there is a case for it.

VISCOUNT DILHORNE

This is not by any means such a technical matter as the last Amendment that we discussed. Does the noble Baroness wish to speak?

BARONESS GAITSKELL

I want to say a word. I wanted to learn from the noble and learned Viscount how we were to know that there was more than one person present. How many persons—one more? Are we going to employ agencies to track down the third man? Why should we not apply the same criteria of privacy to homosexuals as we apply to heterosexuals? Are we going to set up a pool of King's proctors, or are we going to resort to micro-television sets in the keyhole and methods of that kind? In this way we are simply going to escalate towards a Puritan police state. We should be very jealous of our position, and guard the privacy of our private lives. With the rapid growth of communication, few of us would wish Telstar or Early Bird to be transmitting from the interior of our bedrooms. So long as private behaviour of adult homosexuals does not outrage public propriety, I do not think that in a civilised society homosexuals should be persecuted, victimised or convicted for this kind of thing.

As for the "buggers' clubs" that Lord Goddard mentioned, I may be very ingénue about this, but I did not realise, when he spoke of these clubs, that it meant that people were committing this abominable act, as it is referred to, at these clubs. I myself thought that this was a place where homosexuals gathered to be together, and I do not see any reason why they should not do that. In Holland, I understand, there are homosexual clubs, and it may be that a case can be made out for people of like tastes getting together. That would be a question for the Committee to go into.

LORD BOOTHBY

Before the noble and learned Viscount replies, may I just say a word to the noble Baroness who has just sat down? I think there is an enormous difference to be drawn between what are called "clubs" where homosexuals meet to establish contact, and sexual activities on the part of more than two or three people. I am very anxious to see this Bill go through. I do not think it will go through this Parliament, but I think it will almost certainly go through the next Parliament if it is sensible. However, I think that, if Parliament were to be asked to legitimise sexual parties, by the heterosexual or the homosexual, for the conduct of sexual activities and for the benefit of some people who are described as voyeurs—and we all reach that stage sooner or later—it would prejudice the chances of this Bill. Therefore, I am against that. I am not in the least against the kind of pubs or clubs which exist in this country and undoubtedly in Holland, as the noble Baroness has said, where people of homosexual tendencies meet for the purpose of making acquaintance with each other, but I do think that if this House were to legislate for sexual activities of any kind, heterosexual or homosexual, in public, with more than ten or fifteen people present, it would do irreparable damage to this Bill.

LORD BROCKET

We have had a very interesting debate, in that so many different expressions of opinion have been given, but, having studied the question raised by these Amendments, I do feel that the ex-Lord Chancellor, Lord Dilhorne, has struck on an extremely foolproof Amendment, if I may call it that. As he is backed up by the noble Lord, Lord Boothby, I think we ought to press this Amendment to a Division.

BARONESS WOOTTON OF ABINGER

There is just one point which I think ought to be borne in mind. If we accept this Amendment it will mean that, if a third person is present when one of these acts takes place, that third person will be in a magnificent position to blackmail.

VISCOUNT DILHORNE

I do not know why that third person should be in a better position for blackmail than person No. 1 or person No. 2. What this Amendment is directed at is what you might call a homosexual party, where three or more are engaging in homosexual activities; and that should not be regarded, in my view, as homosexual activities in private.

If I may say so to the noble Baroness, Lady Gaitskell, I am not seeking to make the law too tight. Cases of homosexuals merely gathering together would never have been before the criminal courts in the cases to which Lord Goddard referred. There must have been homosexual activities as well. I think they were of the character referred to. The noble Baroness referred to pools of King's proctors. I am not for one moment suggesting that the King's Proctor's staff, which is large enough in all conscience, should be increased for this purpose; that really does not come into it. Nor do I think the Street Offences Act is in the least degree relevant. At the time, so far as I can recollect, I had a great deal to do with securing the passage of that measure, which was a very controversial measure. In that case there was very great difficulty in defining satisfactorily, for the purposes of the jurisdiction of that Act, what constituted a public place in a town. It was not easy. But here we are concerned about what can properly be described as homosexual conduct in private.

Whether homosexual conduct is in private or not in private is a question of fact. It must depend upon the circumstances of each case. And I do not believe for one moment that any court would say that homosexual activities were not in private just because, while they were being carried on, someone opened the door of the bedroom and happened to see in. That would not make the commission of the act in public; it would be between two people in private, and it would not become criminal because someone happened to see what was going on. On the other hand, it would become criminal if there were more than two people in that room engaging in homosexual activities.

LORD BOOTHBY

If there was a party.

VISCOUNT DILHORNE

If there was a party—and I think that is right.

BARONESS WOOTTON OF ABINGER

If the noble and learned Viscount would give way, that is not what the Amendment says. The Amendment says, … when more than two persons are present.

VISCOUNT DILHORNE

If more than two persons are present it might well be described as a party. A party has not been defined, either, but it would be quite a party if there were ten or twelve present, would it not? It might be a "liberal party". But if there were more than two present I do not myself think that you could accurately describe the conduct as being carried out in private. I am not trying to get an exclusive definition of "privacy", because I do not think that that is possible—

THE EARL OF ARRAN

If the noble and learned Viscount—

VISCOUNT DILHORNE

I should like just to finish the sentence; I will give way then. I do not think it is possible to give an absolute, exclusive definition of "in private", because a lot will depend upon the particular circumstances. All I am seeking to secure here is that, if more than two are present at the commission of the conduct, it cannot be

regarded as taking place "in private". I think that is common sense.

THE EARL OF ARRAN

I was wanting to ask the noble and learned Viscount whether, if a policeman were present in the room hiding behind the curtains or under the bed, the conduct would be in private.

VISCOUNT DILHORNE

So far as the parties to the conduct were concerned, I should think that any court would say that they, so far as they knew and were aware, were in private if they said that they thought they were alone and had no reason to suspect that they were not. I think that any court, if it believed that evidence, would say that the act was done in private and that it would not cease to be in private because of that. If, 100 yards away, the noble Earl, Lord Arran, with a pair of binoculars, was able to look through the window to see what was going on, the commission would still be in private. There would be no more than two persons present. I should like to press this Amendment. I feel very strongly about its desirability and I think it will make this Bill better than it is now.

LORD BOOTHBY

The noble Viscount is not suggesting that the noble Earl, Lord Arran, would look through a bedroom window with binoculars, I am sure.

VISCOUNT DILHORNE

No.

BARONESS GAITSKELL

May I ask the noble and learned Viscount what is the position with regard to orgies, as he described, of heterosexuals? Is it a criminal offence for other people to be present when men and women are enjoying themselves?

VISCOUNT DILHORNE

I should not like to give an answer offhand. The noble Lady says, "enjoying themselves". I should think that orgies of that sort would be ordinarily amenable to the criminal law. I can only give that answer "off the cuff".

7.10 p.m.

On Question, Whether the said Amendment (No. 7) shall be agreed to?

Their Lordships divided: Contents, 41; Not-Contents, 26.

CONTENTS
Albemarle, E.	Beswick, L.	Bossom, L.
Arwyn, L.	Blyton, L.	Boston, L
Auckland, L.	Boothby, L.	Bowles, L.
Brain, L.	Horsbrugh, Bs.	Rathcavan, L.
Brocket, L.	Howard of Glossop, L.	Samuel, V.
Canterbury, L. Abp.	Iddesleigh, E.	Shepherd, L.
Chichester, L. Bp.	Jessel, L.	Somers, L.
Chorley, L.	Kilmuir, E. [Teller.]	Soulbury, V.
Dilhorne, V.	Lincoln, L. Bp.	Stamp, L.
Goschen, V.	London, L. Bp.	Strange, L.
Greenway, L.	Longford, E. (L. Privy Seal.)	Strange of Knokin, Bs.
Grenfell, L.	Monsell, V.	Strathcarron, L.
Haire of Whiteabbey, L.	Montgomery of Alamein, V. [Teller.]	Tangley, L.
Hives, L.
Hobson, L.
NOT-CONTENTS
Archibald, L.	Gaitskell, Bs.	Royle, L.
Arran, E. [Teller.]	Gardiner, L. (L. Chancellor.)	St. Davids, V.
Bedford, D.	Hertford, M.	Sandys, L.
Bowden, L.	Huntingdon, E.	Shackleton, L.
Burden, L.	Kinross, L.	Strabolgi, L.
Byers, L.	Maugham, V.	Wade, L.
Cranbrook, E.	Ponsonby of Shulbrede, L.	Wells-Pestell, L.
Dinevor, L.	Queensberry, M. [Teller.]	Wootton of Abinger, Bs.
Francis-Williams, L.	Reay, L.

Resolved in the affirmative, and Amendment agreed accordingly.

LORD SHEPHERD

I understand that the next Amendment may take some time. In view of the arrangements which have been made for supper, I wonder whether this might not be a convenient moment for this Committee stage to be adjourned until 8.20 p.m.

VISCOUNT DILHORNE

I am wondering whether we ought to discuss this proposal a little more, and consider whether we should adjourn until 8.20. There is, as I am aware—I have said it, and no one has contradicted it—not the slightest possibility of this Bill's being enacted this Session. Whatever we do about this Bill in this Session, if it is reintroduced next Session, we may have the same debates all over again. We are not going to save anything and we may not save any time by prolonging the Committee stage of this Bill. I am wondering, therefore, whether it will serve a useful purpose, interesting though it would be, if we carried on after Dinner this evening with the Committee stage discussions which, as I see it, we could not possibly finish unless we sat about as late as we did on one occasion when considering the Greater London Bill.

I am wondering whether it is worth while—it is in the hands of your Lordships—to sit after we adjourn in a few moments. I doubt myself whether it would serve any useful purpose, and it would result in noble Lords being fatigued. I do not know exactly what the noble Earl, Lord Arran, wishes. I threw a fly to him, asking why, having got his expression of opinion on Second Reading, he was so keen that we devote our energies to this Committee stage. The noble Earl did not respond then; perhaps he can do so now. We have had a pretty lengthy Sitting. Some noble Lords have taken an active part and the debate has been very good. I would add that these are important subjects and we cannot help but note that the Committee will get a little thinner as the hours go on.

LORD SHEPHERD

Before the noble Earl, Lord Arran, advises the Committee about what course he thinks we should take, I think it right that I should inform the Committee that the business between now and the end of July will be pretty heavy. It seems to me that we are quite unlikely to be able to provide further time for a Committee stage and then for a Report stage. If the Committee feels it would like this Bill to be put into proper order, noble Lords might consider it advisable to make a serious effort to complete the Committee stage this evening, in which case there might be a possibility of providing a Report stage on the following Monday.

I appreciate what the noble and learned Viscount, Lord Dilhorne, has said about fatigue—that is something we have to face from time to time—but I think the Committee should be aware of the congestion of business. If noble Lords feel that they can complete the Committee stage, there may be a chance for further stages of the Bill. If the Committee stage is extended to another day, I think it would be very difficult indeed to provide suitable and adequate time for further stages of this Bill.

LORD BOOTHBY

Before the noble Earl, Lord Arran, replies, may I say that I threw precisely the same sort of fly over him as the noble and learned Viscount, Lord Dilhorne, has referred to. His reply was rather impressive. He said that if we produced a carefully considered and moderate Bill we should have far more chance of getting it through in the next Parliament, if not in this one. I think that was a fairly formidable reply. As he knows, I have roused his discontent by exercising such influence as I have in getting modifications rather than additions to this Bill, because I think it would have a much better chance of getting through in another place in the next Parliament—I am sure that it would not go through before—if it was a moderate and reasonable Bill. I think that there is quite a lot to be said for boxing on and getting the Bill finally through to the Report stage, so that it may be ready for another Parliament, which I think will come before very long, and the Bill then will have a better chance of getting through.

VISCOUNT DILHORNE

We should be employed on the business of providing a Bill for next Session. That is, perhaps, an enjoyable occupation, but I understand, because of what the noble Lord, Lord Shepherd, has said, that unless we finish the Committee stage tonight there will be no prospect of having a Report stage—

LORD SHEPHERD

I said "little prospect".

VISCOUNT DILHORNE

There will be little prospect. I ask your Lordships to look at the Marshalled List. We have just dealt with Amendment No. 7. We shall have to sit very late indeed to complete these Amendments—that, I think, is undeniable. Therefore I would stress to my noble friend that unless he is prepared to ask the Committee to sit until a very late hour indeed, as I see it there is not the silghtest chance of finishing the whole of the Committee stage to-night. With the best will in the world—we have not been wasting time—I cannot see that that is likely to be accom plished. Therefore I put the question to him for serious consideration—he may think that we may have been helpful or hindering to-day—whether he really thinks that it is right to ask the Committee to go on sitting and complete only more of the Committee stage, and not finish it, after the adjournment. I can see little point in that. I hope he will bear in mind that we have had a very useful discussion, and that he may think it wise to conclude matters now.

I did not put my argument primarily on the ground of fatigue. This is an important measure, and if the noble Earl wants to adopt the course suggested by the noble Lord, Lord Boothby, and get a draft of the Bill for introduction next Session, he had much better try to get a draft through a Committee at an earlier part of the day when the Committee would be fully attended, and not try to get it through at a late hour, on a Monday evening particularly, when many of their Lordships have other engagements.

LORD BROCKET

If next Monday is free for Report stage, would it not be better, from every point of view, to continue the Committee stage then?

LORD SHEPHERD

May I answer that'? The point is that if we extend the Committee stage until next Monday, it means that the Report stage will come at the middle or latter part of July, and, as noble Lords will know, this is the moment of crunch so far as legislation is concerned. I suggest that we have had Order Papers containing as many Amendments as there are on the Order Paper this evening, and that between 8.30 and 10 o'clock we seem to make considerable progress. If we could complete the Committee stage this evening, it would be possible to take the Report stage next Monday, and then, I should think, there would be a chance, if the House so wished, of giving this Bill a Third Reading. I am giving this advice only from the business time-table point of view. I think the Committee should not be under any illusions at all.

LORD JESSEL

I hope that the noble Earl, Lord Arran, will follow the suggestion made by the noble Lord, Lord Brocket. I know that what he wants is to have a draft Bill which can come up again. He will have that if we complete the Committee stage this day week. If we go on tonight the Committee will get thinner and thinner, and he may lose Divisions which he would not lose normally, and, from his point of view, it would be most unsatisfactory.

LORD STONHAM

I think that the noble and learned Viscount, Lord Dilhorne, will recall that in connection with one of his Amendments he accepted the assurances of my noble friend Lord Shackleton; and of the remaining Amendments which we still have to consider the intention of quite a number seems very reasonable but the Amendments are in fact defective. In other words, there are Amendments which would need a Report stage if we are going to get a tidy Bill, which is apparently the intention. I think that should be borne in mind.

THE LORD PRIVY SEAL (THE EARL OF LONGFORD)

May I say a word from, I hope, a neutral position but with some responsibility for the ultimate happiness of everybody? I realise that it is going to inconvenience some noble Lords if we go on after Dinner, but others have made arrangements to be here the whole day. I myself was to speak at a public dinner and at great inconvenience to my hosts I put it off because I assumed that we were going through with the Bill. We have here the most reverend Primate and the right reverend Prelates, who would be ready to proceed this evening. I am not saying a word of criticism of anybody who has done much of the speaking this afternoon, but it is certainly not the right reverend Prelates who have been given the opportunity of oratorical exercise, and after all the speaking that has been done by the noble and learned Viscount, to say that now we must adjourn and leave the right reverend Prelates kicking their heels this evening would be very hard on the right reverend Prelates—may I finish? It is the first time I have broken silence, which is not quite true of the noble and learned Viscount opposite. While the House will decide, there are two sides to this question. May I finally suggest that the noble Earl, Lord Arran, should give us some guidance, because it is for him to make the suggestions. It is certainly not for the Government.

VISCOUNT DILHORNE

For the noble Earl the Leader of the House to say that after all my speaking—I am afraid that I had to speak rather a lot—it is rather unfair that the most reverend Primate should be deprived of his opportunity of speaking, is a reflection which I rather resent. I have only done what I think is right on this Bill and I certainly did not suggest that the Committee stage should be adjourned on any ground of personal convenience. If the noble Earl really thinks that it can be finished at a reasonable hour, I believe he is wrong. I raised this matter because of that very ground. I do not think that, unless we sit until a very late hour indeed, we can possibly finish this Committee stage. I must say, having spent a great deal of the day and a great deal of other time working on this Bill, that I do resent this kind of observation coming even at this hour from the noble Earl who leads the House. I certainly have not sought to put forward this suggestion to your Lordships with a view to considering my personal convenience; I would not think it right. I do not know what the most reverent Primate thinks about it. It may well be that if we do not finish the Committee stage to-day, we shall not get a Report stage or Third Reading. But if we continue the Committee stage on another day, we shall have probably reached agreement on many more points, and seen better how the land lies, than we shall to-night. For instance, when the Committee considered the matter concerning the Armed Forces we managed to dispose of that fairly quickly because we found that there was a considerable amount of agreement. We are not going to serve much more of a useful purpose by carrying on to-night, as the noble Lord, Lord Jessel, has said. I do not know what the most reverent Primate feels about this, but I believe that if we come to this Bill fresh on another occasion and continue then, we shall be likely to make it much more effective.

THE LORD ARCHBISHOP OF CANTERBURY

As a number of the Amendments are in my name, I have set apart the day for this purpose and I am entirely ready to serve the Committee if it continues its sitting, but I should like the matter to be decided on what is in the interests of the total progress of the Bill. I hope that the noble Earl who introduced it will give us his own guidance.

THE EARL OF ARRAN

It is a terrible responsibility because, as the noble Earl the Leader of the House has said, some noble Lords have come long distances and given up their day to be here and they may feel annoyed and disappointed if we stop at this point. Others may feel that we shall not give these matters proper discussion if we go on too late at night. Some of my clever, learned and helpful friends in the House advised me to leave it alone and not to go beyond Second Reading, but I decided that we ought to have the Bill if possible go through the House, even if it were still to go into limbo, so that we could present a more or less ready-made document in the next Session. I was also influenced by the fact that I was told that not to go to Committee might seem to be withdrawing the Bill, and I had no intention of withdrawing it.

In regard to whether the House should go on or not, the noble Earl has asked for my guidance but I should much prefer your Lordships to give me guidance. Would it be a good idea to have a vote of a friendly nature on this question, so that the convenience of the majority would be served?

LORD SHEPHERD

I have already suggested that we should adjourn for one hour, but in view of the discussion I

would amend the time from 8.20 to 8.35 p.m., when we will resume the Committee stage, and I formally move to that effect.

Moved, That the Committee do now adjourn during pleasure until 8.35 p.m.—(Lord Shepherd.)

THE CHAIRMAN OF COMMITTEES

The question is: That the Committee do now adjourn during pleasure until 8.35 p.m.

VISCOUNT DILHORNE

I would move an Amendment to get the issue determined. The Motion moved by the noble Lord does not raise the issue that the noble Earl, Lord Arran, wants. His Motion is that we adjourn for an hour to have dinner. Therefore, I must move an Amendment to make it read that the Committee do now adjourn.

THE CHAIRMAN OF COMMITTEES

The noble and learned Viscount's Amendment will be "to leave out all words after adjourn".

VISCOUNT DILHORNE

I beg to move accordingly.

Amendment moved— Leave out all words after "adjourn".—(Viscount Dilhorne.)

On Question, Whether the Amendment shall be agreed to?

Their Lordships divided: Contents, 16; Not-Contents, 47.

CONTENTS
Albemarle, E.	Goschen, V.	Kilmuir, E.
Bossom, L.	Grenfell, L.	Montgomery of Alamein, V.
Brocket, L. [Teller.]	Horsbrugh, Bs.	Somers, L.
Cranbrook, E.	Iddesleigh, E.	Soulbury, V.
Dilhorne, V.	Jessel, L. [Teller.]	Strange of Knokin, Bs.
Drumalbyn, L.

NOT-CONTENTS
Airedale, L.	Gardiner, L. (L. Chancellor.)	Queensberry, M.
Archibald, L.	Greenway, L.	Reay, L.
Arran, E.	Haire of Whiteabbey, L.	Royle, L. [Teller.]
Auckland, L.	Hertford, M.	St. Davids, V.
Bedford, D.	Hives, L.	Samuel, V.
Boothby, L.	Huntingdon, E.	Sandys, L.
Bowden, L.	Kinross, L.	Segal, L.
Bowles, L.	Lincoln, L. Bp.	Shackleton, L.
Brain, L.	London, L. Bp.	Shepherd, L.
Byers, L.	Longford, E. (L. Privy Seal.)	Stamp, L.
Canterbury, L. Abp.	Maugham, V.	Stonham, L.
Champion, L.	Merthyr, L.	Strabolgi, L.
Chichester, L. Bp.	Mitchison, L.	Tangley, L.
Dinevor, L.	Monson, L.	Terrington, L.
Francis-Williams, L.	Mottistone, L.	Wells-Pestell, L.
Gaitskell, Bs. [Teller.]	Ponsonby of Shulbrede, L.

Resolved in the negative, and Amendment disagreed to accordingly.

On Question, Motion agreed to.

[The Sitting was suspended at a quarter to eight o'clock and resumed at a quarter to nine.]

VISCOUNT DILHORNE moved to add to the clause: ( ) Consent to a homosexual act induced by the payment of money or a gift shall not be deemed to constitute consent for the purposes of this Act.

The noble and learned Viscount said: We resume this debate knowing that all we are doing is to help my noble friend Lord Arran to draft a complete Bill. We are only trying to assist the noble Earl, who I hone will be sufficiently appreciative of our efforts to produce a Bill which might be tolerably acceptable. He himself said that the Bill, when it was first introduced by him, could not conceivably be passed into law, and I am glad he recognised that. There are already certain defects in the Bill which we will try to eradicate perhaps at later stages.

This Amendment, which I now propose to move, is also one of the important Amendments, and I could have hoped that we had a slightly fuller attendance than we have at this moment for its consideration. The curious thing about the Wolfenden Report, which in some respects is an excellent document, is that it uses terms that it does not seek to define. We had a great debate a little time ago on what was meant by the words "in private". I think most people would know perfectly well, if you asked them, whether something was done in private or in public. The difficulty is to find the appropriate words for insertion in a Bill. When one turns to the other matter, which is dealt with at paragraph 63 of the Wolfenden Report, the question of consent, what the Wolfenden Report there state, dealing with consent, is this: … we should expect that the question whether or not there has been 'consent' in a particular case would be decided by the same criteria as apply to heterosexual acts between adults. We should expect, for example, that a 'consent' which had been obtained by fraud or threats of violence would be no defence to a criminal charge; and that a criminal charge would also lie where drugs had been used to render the partner incapable of giving or withholding consent, or where the partner was incapable for some reason (for example, mental defect) of giving a valid consent. I do not wish to criticise that passage.

Then the Committee go on to say: We are aware that the quality of the consent may vary; consent may amount to anything from an eager response to a grudging submission. We are aware, too, that money, gifts or hospitality are sometimes used to induce consent. But these considerations apply equally to heterosexual relationships, and we find in them no ground for differentiating, so far as the behaviour of adults is concerned, between homosexual and heterosexual relationships. That is all that the Wolfenden Committee say about the question of consent. Whether someone has consented to these activities is a question of fact. It may sometimes be not easy of proof, but, none the less, as I see it, it is a question of fact.

The question that I seek to raise in this Amendment is, I think, the not unimportant question of whether consent induced by payment of money or by a gift should be deemed to constitute consent for the purposes of this Bill. If you are going to say that you are outside the ambit of the criminal law provided you have consent, no matter how it is obtained, then it seems to me that you are in fact opening the door to male prostitution. Female prostitution is not of itself an offence unless the prostitute behaves in a certain way; but do we really want as a matter of policy to do anything to encourage male prostitution?

We have heard to-day, I think it was from the noble Lord, Lord Soper, something about the affection which can exist, and I have no doubt does exist on occasions, between homosexuals. I should have thought there was all the difference in the world between the cases of two homosexuals who have formed a genuine but unnatural affection for each other and the male homosexual who seeks to gratify his lust by inducing, it may be much younger men, it may be those who have only just reached the age of 21, to consent to homosexual practices. A strong case has been argued—I do not agree with it myself—for saying that homosexual activities between adults who have freely consented should be allowed. That is one thing, but it is going far further than that to say that we will allow it if the homosexual can, by some means or other, by gifts or payment, by hook or by crook, obtain consent to the practices he wishes to indulge in.

If one turns to paragraph 71 of the Report of the Wolfenden Committee, one sees that the Committee say there: We have, however, encountered several cases in which young men have been induced by means of gifts of money or hospitality to indulge in homosexual behaviour with older men, and we have felt obliged to have regard to the large numbers of young men who leave their homes at or about the age of 18".

I have read those words because they support what I believe is the case, that while it is perhaps true that not all homosexuals seek to get recruits to their ranks, there are others who do, and others who do so by means of gifts of money or hospitality. They do a lot of proselytising, and it may well be that when that happens it leads to the younger person himself becoming more of a homosexual, if not exclusively a homosexual as opposed to a heterosexual.

The question which I am raising I believe is one of very great importance. I do not know the views of the noble Earl, Lord Arran, on this. He has been remarkably silent during the course of this Committee stage—

THE EARL OF ARRAN

May I intervene at this stage to say that the noble and learned Viscount, Lord Dilhorne, has spoken so much that I have hardly been able to get a word in edgeways.

VISCOUNT DILHORNE

I do not favour being interrupted by the noble Earl for that kind of observation, but the noble Earl is perfectly aware that, according to the procedure of this House, at Committee stage he can speak more than once; but seldom has he made an effort to make a speech. He intervened for a short time in the first debate but he has left it to others to conduct the case for this Bill. All he has said to the Committee really is, "I do not mind how long the Committee stage goes on, I do not mind who speaks, but what I want to have at the end of it is a Bill. and I hope that you will give me one". That I think is a correct summary of his approach.

THE EARL OF ARRAN

I am not asking that. I am asking that the House should give itself a Bill.

VISCOUNT DILHORNE

If the noble Earl can restrain himself for a little while, refreshed though he may be, he will have ample opportunity for making as long a speech as he feels inclined to. I come back to this particular point because I think it is a question of considerable importance. I feel that consent induced by such methods should not count as consent for the purpose of this measure. The noble Earl, Lord Arran—I am sorry to have to refer to him again—has an Amendment down, No. 17, to say that it would be an offence for a person knowingly to derive financial advantage from inducing the homosexual prostitution of another person", and the marginal note of that is "Person living on earnings of prostitution". That really does not cover quite the same field as I am now considering. I am not dealing with the question of someone living on the earnings of prostitution. I should like to make that quite clear. What I am suggesting is that it would be right to say in this measure that consent—it may be of a young person—induced by gifts or hospitality should not, for the purposes of this Bill, count as consent so as to exclude the older person from the scope of the criminal law. I beg to move.

Amendment moved— Page 1, line 7, at end insert the said subsection.—(Viscount Dilhorne.)

8.57 p.m.

THE LORD CHANCELLOR (LORD GARDINER)

As the noble and learned Viscount has referred to me, perhaps I might give a purely personal opinion, as distinct from any opinion on behalf of the Government. There is here, I think, a difference of opinion, and of course a perfectly honest difference of opinion, on the whole of this subject. But those of us who are in favour of the Bill want to see a rational approach to this subject, and we do not see really in what way the sexes are to be differentiated. This Amendment, as it seems to me, merely introduces complication into what in principle, if one is once agreed on the principle, is fairly simple. I am very glad to observe that since dinner the noble and learned Viscount has been calling it "hommo"-sexual and not homosexual (with the long "o"), as he did throughout the afternoon, because the word has nothing to do with man.

So far as the sexes are concerned, of course where there is no consent there is an assault. And, in relation to heterosexual intercourse, consent has to be judged as a question of fact. The fact that money or hospitality may be involved does not prevent consent, if there is consent, from existing. As between two women an older woman may give money or hospitality to a younger woman to commit homosexual practices with her. This is no offence at all; it does not prevent consent, so there is no offence. If there were no consent, of course, even between two women there would be an offence. What I think those of us who are, broadly, in favour of this Bill feel is that there is no rational reason for distinguishing in this way between men and women. If one feels, as I feel, that to make this a criminal offence between men when it is not between women does, on the whole, more harm than good, for the reasons which were given on the Second Reading, then I cannot see, on this particular point, why once more the noble and learned Viscount wants to introduce a distinction which would be applicable only to men and not to women.

The point that has never been answered, though I implored an answer on the Second Reading debate, was the question whether those who are opposed to the whole of this Bill, as the noble and learned Viscount is, think that there ought to be a similar law for homosexual practices between women; and if they do not, how they justify what on the face of it is a cruel piece of sex discrimination. This is just another example of it. As between men and women, there is either consent or there is not. The consent may be obtained by money or hospitality. If there is no consent the act is a criminal offence; if there is consent, it is not. As between women and women, whatever gifts of money or hospitality there may be, if there is consent there is no offence; if there is no consent, it is an assault. I cannot myself feel that there is any reason, therefore, for this Amendment, which once more would draw this distinction between practices between men and similar practices between women.

Amendment No. 17, to which the noble and learned Viscount referred, seems to me to point the other way. This is a case in which the noble Earl is seeking to assimilate the law, so far as homosexual practices between men are concerned, with those between anybody else. It is an offence to live on the earnings of prostitution so far as women are concerned, and so it should be so far as men are concerned. Speaking purely personally, therefore, I would oppose this Amendment on those grounds.

THE LORD BISHOP OF CHICHESTER

Could the noble and learned Viscount explain to us a little more clearly how one defines "induced"? I speak with great ignorance, and there may be some legal definition. Here we are asked to put into the Bill the phrase: induced by the payment of money or by a gift. I was wondering how this could be described and how it could be implemented by the law. It seems to me that it is so vague and ill-defined that the Committee might care to have the words explained in a little more detail.

VISCOUNT DILHORNE

With great respect, I should have thought that the meaning was perfectly obvious. Whether consent has been induced by a gift of any kind is a pure question of fact. The trial would be one by jury, and it would be for the jury to determine on the evidence before them. There is no need for a definition there; one applies the ordinary English meaning to the words. I do not think that there can be any difficulty about that. It is a test which the jury would have to determine on the evidence available.

I have listened with interest to what the noble and learned Lord the Lord Chancellor said. The conflict here is in regard to the process of what I might call equalisation of the sexes before the law: either treating sodomy as exactly the same as heterosexuality, as no worse and having no distinction; or, on the other hand, seeing to it that this Bill does not, in fact, operate to encourage male prostitution. I may take a different view from that of the Lord Chancellor, and probably do on many things. It is quite true that, of itself, female prostitution is not a criminal offence. But I must say that I think for us in this House to pass a Bill which does anything to encourage male persons to become prostitutes, even though it produced more equalisation or rationalisation between the sexes, is something that I should regard as wrong. That is why I have put down this Amendment.

I know that it may make a difference in the law between the sexes. But there are differences between the sexes apart from the law, and I cannot believe that the principle of uniformity of treatment is one which should override the consequences of rejecting this Amendment. The noble and learned Lord, when he replied to me—and I am glad that he has spoken; I listened to him with great attention—did not in any way challenge the propositions which I put forward. Under the Bill as it stands, unless this Amendment is carried it opens the door wide for male prostitution, for inducing consent by the payment of money or by gifts. If there is a gift of money to a young man by an older man and the receipt of it by the young man, followed by their going off together and engaging in homosexual practices, I do not think it would be difficult for any court to come to the conclusion that it was the money which induced the consent. It is because I do not want to see the door opened as wide as that that I have tabled this Amendment.

This Amendment will not do anything to inhibit the two genuine homosexuals who have a real affection for each other and who seek to cohabit together. It will not penalise them at all, but it may penalise the man who goes round trying to seduce younger men who are over 21 by gifts and by the payment of money. If it could be shown that he has got their consent—the consent of perhaps more than one young man—to these activities, then, indeed, he would not get the protection of the Bill. I hope that I have made my point clear. I accept the point made by the Lord Chancellor that if one is trying to create strict uniformity between the treatment of women and of men my Amendment is not in accordance with that line of thinking; but I feel that one can pay far too high a price in this field for uniformity. I urge the Committee not to open the door to male prostitution, which, in my belief, is what rejection of this Amendment would mean.

THE EARL OF HUNTINGDON

I hesitate to enter into a field where legal experts are involved. I have no claim to any knowledge of the law, but one difficulty that I can see about this Amendment is in regard to gifts. It would be difficult to decide what in fact is a gift. If one gives a cigarette to some body, I suppose it is a gift. If two perfectly normal homosexuals are having a relationship—not a question of prostitution at all—and are in a café and one offers the other a drink and afterwards they go home together, then, according to this Amendment, that is an offence.

VISCOUNT DILHORNE

Nobody is going to suggest that a gift of a cigarette would be sufficient to induce somebody who was not willing to engage in homosexual activities to engage in them. I must ask the noble Earl to be a little realistic. The consent has to be induced by the gift. Unless that could be proved, the prosecution would fail. It would have to be a gift of such a character followed by conduct so that the jury would be satisfied that the consent was so induced.

THE EARL OF HUNTINGDON

Would the noble Viscount accept a cigar rather than a cigarette?

VISCOUNT DILHORNE

If the noble Earl is offering me a cigar, it would be greatly appreciated.

THE EARL OF HUNTINGDON

My point is that it is very difficult to draw the line if with, say, from £100 down to a cigarette, one has to decide whether or not it is a gift. It would lead to complications. I have been told—I have no great authority on this—that in Denmark a somewhat similar law was introduced at one time which led to infinite difficulties. The police had to arrest a young man and search his pockets in order to find out if he had a gift or had more money on him than he should have. It is a complicated matter, and I would support the noble and learned Lord the Lord Chancellor on this point in saying that it would be much better to stick to the heterosexual standard, rather than try to distort the law and have one law relating to the male sex and another to the female sex. It would be better to concentrate on the other Amendment which makes it an offence to live on immoral earnings, which we all agree is abominable. That would be a better way of striking at this matter than by accepting the noble Viscount's Amendment.

9.10 p.m.

LORD CONESFORD

This is the first time that I have intervened on this subject, but I do not think this question is quite as simple as is being suggested in the speeches from the Benches opposite. I follow and agree in part with what the noble and learned Lord, the Lord Chancellor said, and I am sure that if this Bill is to be passed by this House at all, we want it to meet the main object that commended itself to the Wolfenden Committee, but not to cause what everybody would think was a scandal.

The right reverend Prelate asked a very valid question: What do you mean by "induced"? Let me give him a very simple example of a man who publicly offers money to a man, without any doubt at all, to commit sodomy with him. That is an attempt at what has hitherto been a very serious crime. If that attempt succeeds, is that really a result which even the promoters of this Bill would be happy to see? I am sure that it is not. I think the subject with which we are now dealing is not wholly divorced from the first Amendment that was considered this afternoon and rejected by the Committee. As a result of that, what has hitherto been a serious crime will not be a crime at all if committed between consenting adults in private.

I understand the motives, the high motives, that have commended themselves to the most reverend Primate and to the right reverend Prelates that made them think that that is a merciful and wise course. I appreciate that, and see the argument for it. But are we sure that it should carry us to this further point: that we should protect a man whom we should all regard as a perfectly horrible person, who wished to corrupt others—of course, I appreciate that if he attempts to corrupt anybody under 21 he is not protected by this measure—by making an offer of money, and perhaps large sums of money, not to buy affection but to buy the commission of an act that has hitherto been a crime? I can only say that it is not at all obvious to me that that is desirable, even in the view of those who, for reasons that I well appreciate, think that on the whole this Bill is wise. I believe that the Amendment moved by my noble and learned friend, though it may not be absolutely right as it stands, is an attempt to meet a real problem, and I think it deserves serious consideration.

THE EARL OF KILMUIR

I can be very short because I agree entirely with every word that my noble friend Lord Conesford has said. I would just put this point to the noble and learned Lord the Lord Chancellor. Here we are, dealing with a complete reversal of the criminal law of many centuries; we are not starting afresh. But we are dealing with it on the basis that everyone who has spoken has said that homosexual acts—and particularly, as the most reverend Primate said this afternoon, homosexual acts either using the oral method or the form of penetration that is in the offence of sodomy—are horrible, unnatural and beastly acts. That is the basis on which every noble Lord who has spoken in this House has approached the problem, that we are legalising what we all say—and right reverend Prelates have been as categorical on this aspect of the matter as anyone else—are horrible, unnatural and beastly acts.

As we start from that basis, are we now to take the second step in the argument of the noble and learned Lord the Lord Chancellor, that, unless this Bill makes equal in the eyes of the law, as they have never been in our law, the position of men and women, then the Bill is faulty? I ask the most reverend Primate, I ask the right reverend Prelates: Why is it a good thing that men should get away—

THE LORD ARCHBISHOP OF CANTERBURY

If I may—

THE EARL OF KILMUIR

If the most reverend Primate will allow me to finish, I think he will see my point.

THE LORD ARCHBISHOP OF CANTERBURY

I must interrupt the noble and learned Earl. He is speaking on the assumption that I disagree with him. I do not disagree with him. I intend to vote for this Amendment.

THE EARL OF KILMUIR

Then may I apologise at once to the most reverend Primate and put my question, not to him, but generally, because this is the most important question? Why should it be right for people to tempt a young man? After all, we have seen this happen. My noble and learned friend Lord Dilhorne and I dealt with these cases when we were in the Army. We have seen older men tempt young soldiers with money, hospitality and gifts. Why are we to say that that is a right path on which to pursue our improvement of the law?

The noble and learned Lord the Lord Chancellor has said, "Well, lesbianism is not an offence, and it is not an offence to tempt a woman". But, if we are trying to improve the law, why should we leave the law in the state that there is no penalty for tempting a young man? I say we ought to protect the young man; and I am sure that, when I put it that way, what I said a moment ago in making an interrogative imputation must surely have been a fault because I am sure that the right reverend Primate would not think that to do otherwise is the proper path for the law to take. I am with the noble and learned Lord the Lord Chancellor in trying to improve the law in every way. We may disagree as to the matters that have arisen in this Bill, but I think this is something which ought to be considered before we let it go out from this House that we tolerate temptation by money, gifts and hospitality in a field where it has been unlawful before. That is not improving the law; that is degrading the law.

THE LORD CHANCELLOR

As the noble Earl referred to me, may I say that those of us who are in favour of the Bill as a whole are so because we think on the whole the law as it is at present is doing more harm than good: partly because it prevents people, or discourages them, from taking advice—it discourages them from going to doctors for they do not quite know whether a doctor may think it is his duty to tell the police—and because it is a charter for blackmailers. If we pass this Amendment we are not going to achieve our object, because all the blackmailer has to do is to say, "Unless you give me money I shall tell the police that you paid me something or that you gave me hospitality." So, one of the principal objects in passing the Bill will not have been achieved, because we all want to get rid of blackmailers if we can. If the Bill is passed without this Amendment it will achieve that object, but if we accept this Amendment, then, in relation to blackmailers, we are going to be in the same position as we are now.

Finally, I shall do a little inducing myself. I would wish to induce either the noble and learned Viscount, Lord Dilhorne, or the noble and learned Earl, Lord Kilmuir, to tell us frankly: Do they think—because we have in the Services, for example, cases of Lesbian conduct between women—that it ought to be the law that if an older woman provides money or hospitality for a younger Lesbian it should be a criminal offence?

THE EARL OF KILMUIR

The answer to that is that it is, of course, a complete red herring. No one knows it better than the noble Lord the Lord Chancellor. I believe that once a proposal was made, though it went no distance at all, that Lesbianism should be an offence. However, no one has reported on that, and it has not been considered, if my memory is right, for 43 years by either House. And I say it is no answer for the noble and learned Lord the Lord Chancellor to say, "Are you in favour of a new and uninvestigated criminal offence?" I say, if I may put it with the greatest respect, that it is his duty and the duty of everyone in this House to make the new law we are now dealing with in respect to men right; and I do not think it is right if we ignore this possibility. The noble and learned Lord Chancellor's point on blackmail has no foundation whatsoever. The same argument applies—and the words, as the Lord Chancellor knows, are very much the same—to false pretences, where you have to establish a false pretence and an inducement. I have never heard anyone suggest that it eased the path of the blackmailer if he could say that a false pretence had been made to him and that money had been given on that basis.

I put it to the noble and learned Lord that no one has answered the very simple point which I ventured to make on Second Reading, that one way to avoid being blackmailed is not to commit the homosexual act on which the blackmailer is relying. That is a way of avoiding what is now, as I understand it, still regarded as a sin and still regarded as something which no one would tolerate in a priest in the Church of England. To-day we are rapidly drifting into the position that the obvious way of avoiding sin, by not committing it, is too difficult for mankind. If we are slipping into that position under this leadership, then heaven help us as a country!

9.25 p.m.

LORD BOOTHBY

As I see it, the main object of this Bill is to avoid blackmail. We know that there are more cases of blackmail in connection with homosexuality than anything else in this country. I suggest to your Lordships that if this Amendment is passed, the main object of the Bill will be destroyed. We are out to avoid blackmail. I have consulted a number of eminent solicitors in the course of the last three months, some of the most eminent solicitors of all. They have said this to me and I think it is a point, "If anyone who occupies a position of public responsibility, or is in a position of public notoriety, came to us and said he was being blackmailed, rightly or wrongly, with reason or with no reason, for homosexuality, we should very much hesitate to advise him to fight the case. On balance, we should advise him to pay. But if it were Mr. John, or Mr. Smith, or Mr. Jenkins, of Wolverhampton, or Leicester, or perhaps even Edinburgh, someone who was of no importance at all, he would pay his fine of £.10, and that would be the end of the matter, and there would be no headlines in the newspapers at all".

I sincerely believe that this is absolutely wrong. Any young man in this country is in a position to blackmail a man who is in a position of responsibility, or who is a well-known figure in this country. I have been advised—I assure the noble Earl, and I am sure he would agree with me; I cannot mention names but they are the very best solicitors—that in these cases the probability is that they would say, "Pay, and finish with it, because we can give no guarantee whatever of any safety or security". That is what I want to avoid in this Bill above anything else.

LORD CHORLEY

It seems to me that the two noble and learned Lords who are supporting this Amendment so strongly are so emotionally involved in this problem that they have lost the sense of proportion that lawyers ought to bring to bear on matters of this kind. The idea that something ceases to become consent because there is a gift attached to it is completely new in the whole domain of English law. It is a most astonishing proposition. They go on to say that men of over 21 years of age are no longer to be free agents. They are to be curbed in this sort of way by the law. When they look back on this debate in a few weeks' time I think they will be puzzled to know how they could be led to such an emotional situation. It has never been suggested in the whole of history that men over 21 should not be free agents in respect of what they decide to do and that they should be curbed in this way. On the face of it, it is a proposition that I should have thought would not hold water for a minute.

LORD CONESFORD

I have heard more astonishing law from the last two speakers than I have heard during the rest of my legal life. It would seem that the noble Lord, Lord Chorley, is under the impression that bribery is no offence.

LORD CHORLEY

Is the noble Lord suggesting that this is a case of bribery? It is not within a mile of bribery.

LORD BOOTHBY

Blackmail.

LORD CONESFORD

The noble Lord, Lord Boothby, flits from pillar to post with such rapidity, reversing what he said in his last speech with every new speech he makes, that it is difficult to keep up with him. The noble Lord, Lord Boothby, said that an eminent solicitor, wisely nameless—

LORD BOOTHBY

More than one.

LORD CONESFORD

More than one solicitor advised a person who was being blackmailed to pay up. I can only say that the most eminent practitioner in the law at the time I first began to practise told me that from time to time he had been consulted by people who were being blackmailed. He had always given the same advice—pay nothing and tell them to be damned. He said, "I know that my advice was right, but it was seldom taken".

I am in complete sympathy with the noble and learned Lord the Lord Chancellor and, so far as I understand him, with the noble Lord, Lord Boothby, in loathing blackmail. What astonishes me in this whole controversy is the quite extraordinary view that, if we pass this Bill or something like it, the blackmailing of homosexuals will cease. Why on earth should it? The noble Lord, Lord Boothby, said, quite rightly, that to a public man a reputation of being homosexual could be very harmful. Therefore, the revelation that he is a homosexual—

LORD BOOTHBY

I really must protest against that. I never said that I was a homosexual—"The revelation that I was a homosexual".

LORD CONESFORD

I said nothing of the kind. The noble Lord is not always the person concerned if he is concerned at all. I shall perhaps be saying something of what the noble Lord, Lord Boothby, did earlier in this debate, about which I had intended letting him off.

LORD BOOTHBY

Be careful.

LORD CONESFORD

I will be careful. If it is damaging to a public man to be known to be a homosexual, whether it is a criminal offence or not, the blackmailer can make a threat of revealing the fact, and that threat may be so severe that it may be worth buying off with money. Therefore, it is untrue to say that the mere passing of a Bill of this kind will end the risk of blackmail in connection with homosexual offences.

I share what I am sure is the hope of the Lord Chancellor, that if there is a reform of the law, blackmail will diminish; but I do not put it higher than that. Can we not get some of the advantages of a reform of the law without opening the door to something that everybody in the House, whatever his views on this problem, would think horrible—namely, a rich man using his wealth, not to buy affection, but to buy the commission of what has hitherto been a serious criminal act? That, as it seems to me, is a real risk. It is against that that my noble and learned friend Lord Dilhorne has devised this Amendment. It may he imperfect; there may be objections to it; but I am sure it deserves more respect than it has hitherto received.

Since I promised that I would deal with the noble Lord who has so consistently interrupted everybody who has been making a speech on this subject throughout this afternoon, let me come to the noble Lord, Lord Boothby. At an earlier stage in the proceedings, on the very first Amendment to-day, the noble and learned Lord—

LORD BOOTHBY

I am not learned.

LORD CONESFORD

No; but Lord Dilhorne is. My noble and learned friend Lord Dilhorne said that in earlier proceedings Lord Boothby had misrepresented to the House the nature of this Bill and the nature of the Report of the Wolfenden Committee. This was indignantly denied by Lord Boothby.

LORD BOOTHBY

Hear, hear!

LORD CONESFORD

Very well. Then I would recommend Lord Boothby to acquire a copy of the Hansard of May 12 of this year, and to turn to column 131. He will there find that he interrupted my noble friend Lord Rowallan with these words: All we are talking about is the Labouchere Amendment, and that is all that the Wolfenden Committee wants to be removed."—[OFFICIAL REPORT, Vol. 266 (No. 73).] Lord Rowallan said: I am afraid that I cannot accept such a statement. Then Lord Jessel said this: My Lords, if the noble Lord, Lord Boothby, had been here a little earlier, he would have heard from my noble friend Lord Dundee a very full description of what happened. Then I intervened for, until this evening, the only time I have intervened on this topic, as follows: My Lords, I am not taking any side in this intervention, except to say that the noble Lord, Lord Boothby, is entirely wrong in saying that all we are discussing is the Labouchere Amendment, or that that was the sole subject of the Wolfenden Report.

"LORD BOOTHBY

Of course it was.

"LORD CONESFORD

Of course it was not."

At that point the noble Earl the Leader of the House very properly intervened with the suggestion that Lord Rowallan might get on with his speech. I hope that the quotation I have made from the previous intervention of the noble Lord, Lord Boothby, will show how utterly wrong he was in suggesting that my noble and learned friend Lord Dilhorne had misrepresented him in any way in the speech that he made, and I hope that possibly what I am saying now may induce him to—

LORD BOOTHBY

Keep his trap shut.

LORD CONESFORD

—to remain in a sedentary position until he has something worth while to say.

LORD BOOTHBY

I have something worth while to say. It is not true that I have interrupted the whole of this afternoon. I want to say that Sir John Wolfenden has said to me on more than one occasion: "The guts of my Report was the repeal of the Labouchere Amendment. If I can get that, that is what I really want. That is what matters." And I quote Sir John Wolfenden as having said that. That is true. It has been said again and again, and it is what I have always said. The noble Lord has been beastly to me, and I do not see why he should, because I have been a great friend of his for over thirty years.

LORD STRABOLGI

Perhaps, with respect to the noble Lords, Lord Cones-ford and Lord Boothby, we might get back to the Amendment. I hope that the Committee will not accept it, for it seems to me quite unworkable, unprovable, in law. As the right reverend Prelate has pointed out, it is very difficult to tell what is meant by the word "induced". It is also very difficult to tell what could be meant by "a gift". Furthermore, as the noble Lord, Lord Boothby, has pointed out, it opens the way to the blackmailer. After all, why should an older man who gives a younger man a gold cigarette case with his initials on it—which is a favourite gift, I believe, between homosexuals—be running the gravest risk of blackmail through having a gift of that kind proved because it is something tangible, when, on the other hand, there may be another man embarking on a course of seduction who takes a younger man out to a series of expensive dinners, or perhaps even abroad for a holiday, and it would be very difficult to prove that the younger man had not paid his share?

Furthermore, I think there has been a tendency of this Committee to see things far too much in black and white. We have heard about people who have been homosexuals all their lives and who will never be anything else. That is not true. It is well known that many men are homosexuals at some time in their lives and not at others. Some men are homosexual and heterosexual at the same time. Other men have never been homosexual until middle age, and then suddenly change. Things are not so easy as that, because human nature is not as simple as that. Human nature is an infinitely complicated thing, and we are dealing with an infinitely complicated matter. Young men are not seduced always by gifts. What is a much more insidious form of seduction, if seduction it is, is when the older man seduces by his wit, by his superior education, by his greater culture, by his more sophisticated background. I shall be very interested to know how the noble and learned Viscount, Lord Dilhorne, proposes to legislate against that.

9.44 p.m.

LORD STONHAM

I should like briefly, as my noble friend Lord Strabolgi suggested, to get back to the Amendment. I want particularly to return to a point raised by my noble and learned friend the Lord Chancellor, which has not so far been answered. We have had from the noble and learned Viscount, and the noble and learned Earl, Lord Kilmuir, quite passionate speeches in which they both referred to the fact that throughout the years there has been inequality of treatment as between men and women. If I may say so with respect, no two noble Lords in this House have in recent years helped to create more inequality of treatment between men and women than the noble and learned Viscount, Lord Dilhorne, and the noble and learned Earl, Lord Kilmuir. At an earlier stage to-day the noble and learned Viscount reminded us that he had played a prominent part in the Street Offences Act.

VISCOUNT DILHORNE

Is the noble Lord going to say that the Government are going to repeal it?

LORD STONHAM

No; I was just referring to the noble Lord's part in it. It is within my recollection, and the noble Earl's, that he too played a prominent part in this House in securing the passing of the Street Offences Act. The noble Earl will recall that Section 1 of that Act says: It shall he an offence for a common prostitute to loiter or solicit in a street or public place for the purpose of prostitution. The noble Earl will recall that many times I protested against the injustice to women, as I saw it, which was perpetrated in that Act but, when the women were cleared off the streets, as some of them have been, they then plied their trade of prostitution in houses. The position then—and the noble Earl obviously approves—is that they are not then committing any offence; nor is the man who buys their favours. Apparently it is quite all right.

I am astounded at the inconsistency which the noble and learned Viscount is displaying. In this Amendment an exactly similar act by a male is to be created an offence. The noble and learned Earl, Lord Kilmuir, used a phrase which was something like, "introducing a completely uninvestigated offence," which was precisely what was done in the Street Offences Act.

THE EARL OF KILMUIR

Would the noble Lord allow me to intervene? The Street Offences Act gave effect to the other part of the Wolfenden Report, and every noble Lord in support of this Bill has said how marvellous the Wolfenden Report is; indeed, we have been told that we ought not to deviate from it at all. We put into effect the recommendations of the Wolfenden Report. When I used the phrase "uninvestigated offence" I was referring to lesbianism, on which, so far as I know—and I have not been corrected—there has been no report, and it has only once been discussed in Parliament in the last fifty years.

LORD STONHAM

The noble Earl has virtually taken the words right out of my mouth, because I was immediately coming to the point of using the Wolfenden Report to demonstrate his fantastic inconsistency in this matter. The noble and learned Viscount, Lord Dilhorne, in his opening speech was kind enough to read us almost two paragraphs of the Wolfenden Report in support of his arguments, but in the second extract he carefully stopped short at the words: We are aware, too, that money, gifts or hospitality are sometimes used to induce consent. He did not then go on to use the words of the Wolfenden Report: But these considerations apply equally to heterosexual relationships, and we can find in them no ground for differentiating, so far as the behaviour of adults is concerned, between homosexual and heterosexual relationships. The noble and learned Earl, Lord Kilmuir, has just gloried in the fact that nearly six years ago the Government of the day accepted that section of the Wolfenden Report; but at this very moment, with regard to men, he has completely rejected this recommendation, so he can hardly claim in aid that I then objected to the other part of the Wolfenden Committee's Report with regard to women. What we really have to decide is not whether we are desirous of encouraging male prostitution, but whether we want to bring into the attitude with regard to men and women another new inconsistency, another new inequality. As my noble and learned friend the Lord Chancellor pointed out, that would be quite wrong.

There is one other point that I wish to make. The noble and learned Viscount, in replying to the right reverend Prelate, seemed to dismiss in a airy fashion the suggestion that there would be any difficulty about deciding what constituted a gift. He said the courts could easily decide it. In the course of this debate many examples have been quoted of what might be used as a gift. But what about the gift of a job? What about employment? That is one of the most difficult things to establish, but it has been done many times in this particular relationship, and I would say that in that respect alone the Amendment is defective and ought not to be accepted.

THE EARL OF HUNTINGDON

May I say one word in relation to Lord Conesford's speech, which I did not quite understand. His argument, I think, if I correctly understood it, was that as Lord Boothby suggested it would be a great handicap to be known as a homosexual in public life, therefore it would not make much difference whether it was legal or not. But surely the noble Lord will appreciate the degree of difference. It is one thing having a slur put about on a homosexual who may be inclined that way, which is unfortunate, but it is a very different thing if the threat is of going to prison and becoming a criminal and having one's whole life ruined that way. It is a much bigger weapon surely.

BARONESS WOOTTON OF ABINGER

I do not wish to enter into the morals of this matter, which have a fascination for many of your Lordships which I do not share. I merely want to say that this Amendment seems to me to be quite impracticable. How are the courts to decide whether a gift was made as a condition of consent to a homosexual act? Somebody asks somebody else to dinner on the Wednesday. Thursday, Friday and Saturday pass. On Sunday he makes improper suggestions. Is the dinner held to be an inducement or not? That situation, in an enormous number of variations, can be repeated over and over again. It is quite impracticable, and it is, incidentally, one of the reasons why those who wish to make prostitution a crime are not able to do so.

9.53 p.m.

THE EARL OF ARRAN

Perhaps I may intervene; I think the noble and learned Viscount, Lord Dilhorne, would like me to say something. I shall be very brief—I do not believe in long speeches. Once again I am with the noble and learned Viscount in the spirit of his Amendment, but again T must oppose it, and head-on. I do so first of all for the reason given by the Lord Chancellor. The noble and learned Viscount is seeking to discriminate between heterosexual and homosexual prostitution. I would oppose the Amendment on that ground alone. But I oppose it more strongly still because I believe, as the noble Baroness has just said, that it would be entirely unenforceable. Prostitution, the buying and selling of human bodies, is an odious thing, but no one has yet found a way of stopping it; and for that reason, if for no other, it is not illegal in this country.

Others have claimed expertise in the matter of the Street Offences Act. Your Lordships may remember that when we were discussing that Bill I went to Hyde Park and picked up a lot of prostitutes and got to know them very well. So I am not altogether unaware of the problems that beset them. Even if you want to discriminate, how on earth are you going to prove that someone has been paid for his services and nothing else? If he has £5 on him, how can you tell whether or not he had it on him when he met the other fellow, or that the other fellow gave it to him?

Even if it was given, how can you prove that it was not for an innocent purpose—it might have been in payment of a debt. And, in the last resort, even if payment is proved, how on earth can you determine whether it was the money which induced the man to commit the act? I think it was the noble Earl, Lord Huntingdon, who asked what would constitute a gift. It is not only money. A cigarette was regarded by the noble Viscount as not sufficient. He was more doubtful about a cigar. What about a drink in a pub? What constitutes a gift? How could any jury decide what is a gift, let alone what it is given for? I believe these proposals to be entirely unworkable, and the noble and learned Viscount must surely know it. Our purpose being largely to repeal existing laws which are unenforceable, what is the purpose of introducing new ones?

Then there is the question of blackmail. I shall have occasion to speak about blackmail on another Amendment. It has been suggested that this matter of blackmail has been overstated. The noble and learned Lord, Lord Goddard, on Second Reading, thought that the blackmailer would find equal scope for his practice if he threatened to expose a man, not to the police but to his friends and to what he called decent society. I quote the noble and learned Lord who said, "He will be ostracised". It is greatly to the credit of the noble and learned Lord if he thinks, in his innocence, that this attitude still obtains. I am glad to say that in this generation people do not believe in ostracising, let alone in persecuting, those who, through no fault of their own, are born to misfortune. We believe in justice for the under-privileged.

The blackmailer's instrument being that of fear, what is it that man fears most? I would say death, and even the bravest and most Christian of us must fear that. Next, I would say prison. A man who is threatened with exposure to his wife or to his boss or to his friends may be willing perhaps to stand up to the blackmailer. If the blackmailer carries out his threat, he may be humiliated or divorced or sacked, or avoided by the more sanctimonious. But he will live it down; he should be able to live it down. If he is a man of courage, he will live it down. But a man who is threatened with exposure to the police, that is with prison, may think to himself, even to-day, that he has only two alternatives—to pay up or to kill himself. I should like to believe, and I half believe, that it is safe for a man to go to the police and say that he is being blackmailed—"I am being blackmailed; help me." I like to think that the police would always give their unequivocal support on these occasions. I like to think this, but I am not certain that everybody believes it to be so.

Can we come back to the immediate Amendment? In saying that I oppose Lord Dilhorne's Amendment, may I recommend to your Lordships instead Amendment No. 17, which is in direct accord with paragraph 115 of the Wolfenden Report? It was referred to, I think, by the noble and learned Viscount in his speech. It was felt by the Wolfenden Committee that, while male and female prostitutes should be dealt with pari passe—and I think that was the point of the noble and learned Lord Chancellor—it was essential that there should be legal safeguards against third parties who may make money from the protection of male prostitutes: the pimps and the ponces in fact. We must wholeheartedly agree with this, and Amendment No. 17 is the result.

Our purpose is clear. With Wolfenden, and with others, we think it wrong to discriminate between male and female prostitution. We believe it utterly unpractical to attempt to decide whether or not the heterosexual or homosexual act has or has not been induced by money. We are determined that those who live on immoral earnings should be punished. I ask your Lordships to reject Amendment No. 8, and. when that has been done, to accept in its place Amendment No. 17.

VISCOUNT DILHORNE

The debate on this Amendment has covered an extremely wide field. Indeed, the field has been considerably expanded by the noble Earl. We have had introduced into this debate a number of considerations which are wholly irrelevant. The noble Earl, Lord Kilmuir, referred to the Lord Chancellor's reference to Lesbianism as a complete red herring. I entirely agree with him. But the Lord Chancellor also introduced another red herring in his reference to blackmail in relation to this Amendment. I believe the biggest myth about this Bill is that, if it is passed, one will get rid of blackmail for homosexuality. I do not believe that for one moment. There is not one word of support for that in Wolfenden.

May I remind your Lordships, when so much stress is laid by the noble Earl on blackmail, of what Wolfenden said? I will quote the last bit of paragraph 110, and paragraph 111. They give the figures and say: These figures represent an average of eight cases a year, and even allowing for the reluctance of the victim to approach the police, they suggest that the amount of blackmail which takes place has been considerably exaggerated in the popular mind. Then they go on to say, in paragraph 111: We will certainly not go so far as some of our witnesses have done and suggest that the opportunities for blackmail inherent in the present law would he sufficient ground for changing it. We have found it hard to decide whether the blackmailer's primary weapon is the threat of disclosure to the police, with the attendant legal consequences, or the threat of disclosure to the victim's relatives, employer or friends, with the attendant social consequences. It may well be that the latter is the more effective weapon; but it may yet be true that it would lose much of its edge if the social consequences were not associated with (or, indeed, dependent upon) the present legal position. That is their summary of the present situation.

LORD BYERS

Could the noble Viscount give way for a moment? He did not read out to the House the part of paragraph 110 where it says Most victims of the blackmailer are naturally hesitant about reporting their misfortunes to the police, so that figures relating to prosecutions do not afford a reliable measure of the amount of blackmail that actually goes on.

THE EARL OF ARRAN

Would the noble Viscount allow me to say this?—

VISCOUNT DILHORNE

May I answer the noble Lord on my right before answering the noble Earl on my left? I was endeavouring to be not too long. If the noble Lord will look at the last sentence, which I did quote, from paragraph 110, it says: These figures represent an average of eight cases a year, and even allowing for the reluctance of the victim to approach the police …. That was recognised in the section I cited. I could read, even at this late hour, a great more of this Report.

LORD BYERS

It would give a more balanced view.

VISCOUNT DILHORNE

If the noble Lord wishes me to do so, I will certainly read the whole passage on blackmail. There are three paragraphs.

THE EARL OF LONGFORD

Is it necessary?

VISCOUNT DILHORNE

The passage reads: The third criticism was one that found more frequent expression among our witnesses, and we were more than once reminded that the Labouchère amendment has frequently been referred to as the Blackmailer's Charter '. This Amendment certainly provided greater opportunities for the blackmailer. Nevertheless, the fact that buggery, attempted buggery and indecent assault were already criminal offences offered ample scope for the blackmailer and would have continued to do so even if the amendment had not passed into law. Indeed, English law has recognised the special danger of blackmail, in relation to buggery and attempted buggery in Section 29 of the Larceny Act, 1916. Then comes paragraph 110: We know that blackmail takes place in connection with homosexual acts. Nobody has disputed that. There is no doubt also that a good many instances occur where from fear of exposure men lay themselves open to repeated small demands for money or other benefits, which their previous conduct makes it difficult for them to resist; these often do not amount to blackmail in the strict sense, but they arise out of the same situation as gives rise to blackmail itself. Most victims of the blackmailer are naturally hesitant about reporting their misfortunes to the police, so that figures relating to prosecutions do not afford a reliable measure of the amount of blackmail that actually goes on. However, of 71 cases of blackmail reported to the police in England and Wales in the years 1950 to 1953 inclusive, 32 were connected with homosexual activities. I do not think I misrepresented the position by giving a summary of their conclusions. These figures represent an average of eight cases a year, and even allowing for the reluctance of the victim to approach the police, they suggest that the amount of blackmail which takes place has been considerably exaggerated in the popular mind.

LORD BOOTHBY

I know that the noble and learned Viscount—

VISCOUNT DILHORNE

Might I deal with one noble Lord at a time? It is easier that way. I quoted that, first of all, in support of my proposition that it had been exaggerated in the public mind. I think I did not do anything unfair in just reading that passage. It is a conclusion of the part that precedes it.

Secondly, it is said that Wolfenden never for one moment suggests or supports the proposition that if this Bill is passed we shall get rid of blackmail for homosexual offences. The Lord Chancellor did, I think, suggest that, but I believe that that is going much too far. I have had discussions with very experienced counsel in the criminal world, and one of them said to me the other day in conversation that he simply could not understand this assumption that blackmail for homosexual offences would go if this Bill was passed; and for the very reason indicated by the noble Lord, Lord Boothby, that there is always the possibility of blackmail of anyone in a position of responsibility because of the position he holds (those are the words of the noble Lord) or of anyone who is a well-known figure, because of the fear of exposure to his family, to his employer and to his associates. Blackmail so far as this Amendment is concerned is, I think, a wholly irrelevant question, for this reason. There can always be blackmail by someone who says, "After all, I did not consent, and I will say that I did not consent unless you pay me." There is always that possibility of blackmail whether or not this Amendment is passed. This Amendment is not concerned at all either with blackmail or with Lesbians. What it is concerned with is simply the question of male prostitution, and I want to bring the Committee back to that if I may.

One can go too far in seeking to secure uniformity in the treatment of men and women by the law. At the present time, as my noble and learned friend Lord Kilmuir has said, it would be illegal and criminal to attempt to procure the commission of an act of sodomy, and I dare say that there have been a number of cases where it has been proved that the attempt has been made by the giving of a gift. We are now suggesting that consent to that act should make it not a criminal offence if the persons concerned are over 21.

What I am seeking to convince the Committee is that consent obtained, induced, by gifts should not count for that purpose. The noble Baroness, Lady Wootton of Abinger, says that that is quite impracticable. It is no more impracticable from the point of view of the courts than proving that money has been obtained by false pretences. All that has to be proved here is that the gift has induced the consent. There may be a number of cases where you cannot prove it because the evidence does not come up to that; there will be others where you can, and it is not an argument for resisting this Amendment to say that there are some cases where the making of a gift inducing the homosexual activities will not be capable of proof to the satisfaction of the jury. I am not quite sure whether the noble Earl the Leader of the House is following the argument that I was posing.

THE EARL OF LONGFORD

I was most anxious to follow it, but I had lost track of it at a crucial point.

BARONESS WOOTTON OF ABINGER

Will the noble and learned Viscount give way for a moment? There is a considerable difference between these gifts and those which are the subject of proceedings for false pretences. In this case the gifts may be of a kind which are ordinarily exchanged in the course of ordinary social intercourse—somebody buying somebody a drink, or somebody taking somebody else out to dinner—and that is an entirely different matter from extracting money for the payment of goods when the goods are not actually to be delivered.

LORD BOOTHBY

Before the noble and learned Viscount—

VISCOUNT DILHORNE

May I deal, first of all, with the noble Lady? I will not forget the noble Lord, Lord Boothby—it is almost impossible to forget him. The noble Lady is surely wrong about that, for this reason: it is quite easy to find out what a gift is. You may be given a cigarette—that is a gift. You may be given a drink—that is a gift. It would be quite easy for the jury or court to determine whether or not there was a gift. But to satisfy a jury here, you would have to satisfy them that the gift had induced consent to that course of conduct; and I do not suppose for one moment, the burden of proof being on the prosecution to prove it beyond reasonable doubt, that a jury would be satisfied that a young man or a man under 21 had agreed to this kind of conduct for the kind of gift that has been suggested—a cigarette or a cheap cigar. I do not believe a jury would be satisfied by that.

On the other hand, if a jury found that a man had been given £20, that he had gone off to a room immediately afterwards with the other party and that homosexual conduct had then taken place, I should have thought there would be no difficulty at all in the jury coming to the conclusion that that was a gift which had in fact induced consent. Of course, it would not depend entirely on that; but I am afraid I entirely disagree with the noble Lady when she says that this would be quite impracticable.

BARONESS WOOTTON OF ABINGER

The noble and learned Viscount will perhaps pay me the compliment of realising that I made no reference to a gift of a cigarette. I referred to gifts such as drinks and entertainment at dinner, that take place in the course of normal social intercourse. I think the noble and learned Viscount put my case better than I could have put it myself when he remarked that the jury would find it very easy in the easy cases and extremely difficult in the difficult ones.

VISCOUNT DILHORNE

So they do in many other fields. In driving cases and in many other fields they have to apply their common sense to determine it. I know the noble Lady did not refer to the cigarette or the cigar, but the noble Lord—I think she was out of the Chamber at the time—did in fact give those illustrations. But, for the reasons I have stated, I do not agree with her that it is quite impracticable and quite unenforceable.

The noble Lord, Lord Stonham, said, "What about the gift of employment, the gift of the job?" There, again, if it was established to the satisfaction of the jury that that job had been given as payment for consent to a homosexual act, then, indeed, I do not think that that consent would count for this purpose.

LORD CHORLEY

If I may—

VISCOUNT DILHORNE

If I may, I should like to take the interruptions in turn. I had promised the noble Lord, Lord Boothby, that I would give way to him.

LORD BOOTHBY

With due apologies to the noble Lord, Lord Conesford, the noble Viscount has been scrupulously fair in his argument to-night, but he has omitted what I think is the most pregnant sentence of all in the Wolfenden Report. May I, just for the record, read it? It is only a sentence: At the least it is clear that if this is no more than one among other fields of blackmailing activity, the present law does afford to the blackmailer opportunities which the law might well he expected to diminish".

THE EARL OF ARRAN

And, on this point, is it not a fact that the late Lord Jowitt, I think, said that 90 per cent. of the blackmailing cases which came his way when he was Attorney General were concerned with homosexual practices?

VISCOUNT DILHORNE

I must say this, as the noble Earl, Lord Arran, has said that—and it has been said repeatedly—that when I was Attorney we certainly did not keep statistics of blackmailing cases, and blackmailing cases very seldom came the way of Law Officers in their professional capacity. I really do not know on what period those statistics were based. But it is, I am sure, clear that blackmail does not relate only to homosexuality. It does not take place only because of fear of prosecution. The fear of exposure is a very potent thing. I have never said it might not be marginally diminished by this Bill. I have given expression to the view, which is sincerely held by others of great experience, that this will not lead to a diminution, but to an increase of it.

As I was saying, I think this question of blackmail in relation—did the noble Lord, Lord Shackleton wish to say something?

LORD SHACKLETON

I was trying to urge my noble friends to allow the noble and learned Viscount to complete his speech so that we could come to a decision on this point.

VISCOUNT DILHORNE

I am grateful to the noble Lord for his help. But, I am ready to give way, and I will give way to the noble Lord, Lord Chorley, when I have finished this sentence. Blackmail is wholly irrelevant to this issue. What we have to decide here is whether or not we wish to encourage male prostitution.

LORD CHORLEY

This is an important point in relation to a trial of this kind, which I shall have to hear at the quarter sessions, if the noble Viscount gets his way. He said that it is easy to prove these cases to a jury. In most of the cases the only evidence will be the evidence of the other criminal. This will be a criminal offence if the noble Viscount gets his way. The noble Viscount knows well that to prove a case against a man out of the mouth of his fellow criminal is very difficult, in that it involves the difficult problem of corroboration, and I support the view of the noble Baroness, Lady Wootton of Abinger, that this would lead to an extraordinarily difficult if not impossible state of the law.

VISCOUNT DILHORNE

I think that was not so much a question as another speech.

VISCOUNT ST. DAVIDS

I should like to suggest to the Committee that on looking round the Benches I do not believe that there is a single Member present who has not by this time made up his mind in this matter. I was wondering whether the noble and learned Viscount might not agree that this was the time when we might put this matter to the vote and get rid of this point. I do not believe there is a single Member present whose mind can be changed through further argument.

VISCOUNT DILHORNE

I gave way for an interruption, thinking that it was a question; but it was a speech, just as was that of the noble Lord, Lord Chorley. If I had not been so interrupted and asked so many questions I should have been much shorter. It is no desire of mine to take up your Lordships' time. We have a very heavy programme if we are to finish to-night. The Committee will bear in mind, however, that I have been asked a number of questions which I have sought to deal with to the best of my ability. I do not think I can be blamed for taking a long time. The noble Lord, Lord Byers encouraged me—"induced" me, if I may use the word—to read out paragraphs of the Wolfenden Report; then the noble Lord, Lord Boothby, chided me because I had left out one sentence.

I now come back to the question that I was coming to when the noble Lord, Lord Chorley, rose: it is that the real issue is a vote either in favour of or against male prostitution. Those in favour of allowing that now to take place, for consent to be obtained by gifts in this way will oppose this Amendment. I do not believe that is right. I therefore shall press this Amendment to a Division.

Resolved in the negative and Amendment disagreed to accordingly.

10.20 p.m.

On Question, Whether the said Amendment (No. 8) shall be agreed to?

Their Lordships divided: Contents, 18; Not-Contents, 37.

CONTENTS
Albemarle, E.	Drumalbyn, L.	Peddie, L.
Auckland, L.	Goschen, V.	Samuel, V.
Beswick, L.	Hobson, L.	Shepherd, L.
Blyton, L.	Horsbrugh, Bs.	Somers, L.
Conesford, L.	Iddesleigh, E.	Strange, L.
Dilhorne, V. [Teller.]	Kilmuir, E. [Teller.]	Tangley, L.

NOT-CONTENTS
Airedale, L.	Hertford, M.	Ponsonby of Shulbrede, L.
Archibald, L.	Hives, L.	Queensberry, M.
Arran, E. [Teller.]	Huntingdon, E.	Reay L.
Bedford, D. [Teller.]	Jessel, L.	St. Davids, V.
Boothby, L.	Kinross, L.	Sandys, L.
Byers, L.	Lincoln, L. Bp.	Segal, L.
Chorley, L.	Longford, E. (L. Privy Seal.)	Shackleton, L.
Cranbrook, E.	Maugham, V.	Stamp, L.
Dinevor, L.	Merthyr, L.	Stonham, L.
Emmet of Amberley, Bs.	Mitchison, L.	Strabolgi, L.
Gaitskell, Bs.	Monson, L.	Terrington, L.
Gardiner, L. (L. Chancellor.)	Mottistone, L.	Wootton of Abinger, Bs.
Greenway, L.

10.25 p.m.

THE LORD BISHOP OF LONDON: moved to add to Clause 1: ( ) A person shall not be deemed to have consented to such a homosexual act as is mentioned in subsection (1) of this section if he was, at the time when the said act was committed, suffering from mental illness, psychopathic disorder, subnormality or severe subnormality as defined by section 4 of the Mental Health Act 1959. ( ) Notwithstanding the provisions of the last foregoing subsection a person who commits such an act as is mentioned in subsection 1 of this section with another person who is suffering from such mental illness, psychopathic disorder, or subnormality as is mentioned in the last foregoing subsection shall not be guilty of an offence unless he knows or has reason to suspect that that other person is so suffering. The right reverend Prelate said: I beg to move Amendment No. 9. I hope I need not keep your Lordships for two minutes on this point. The object of this Amendment is to give protection for those who are victims of assault or of apparent consent and who are not in a position to know what it is they are doing—that group of mentally affected persons who, in our judgment, need protection. This Amendment is drafted along the lines of the protection that is given to women under Section 7 of the Sexual Offences Act, as amended by the Mental Health Act, 1959. In that case, as here, there is an exception for a man who does not know or has no reason to suspect the other person's mental state. It may well be that this principle will commend itself to your Lordships, although the precise way of securing it may require further consideration. In the belief that the principle is important and protection should be given for this group of persons, I beg to move.

Amendment moved— Page 1, line 7, at end insert the said subsections.—(The Lord Bishop of London.)

LORD STONHAM

The right reverend Prelate has made the purpose of this Amendment very clear. As he has indicated, the principle may appeal to your Lordships, because the Amendment seeks to ensure that a person suffering from mental disorder or mental subnormality within the meaning of the Mental Health Act, 1959, cannot give consent to a homosexual act, and to give protection to a person who may commit an offence inadvertently by performing a homosexual act with a mentally disordered person when he has reason to believe that consent has been obtained and has no reason to believe that the other person is mentally disordered. Section 4(1) of the Mental Health Act, 1959, states: … in this Act `mental disorder' means mental illness, arrested or incomplete development of mind, psychopathic disorder, and any other disorder or disability of mind; and ' mentally disordered ' shall be construed accordingly. The next four following subsections define the terms of "severe subnormality", "subnormality", and "psychopathic disorder".

The Amendment, as it stands, gives the mentally disordered greater protection from homosexual acts than they have in respect of heterosexual acts. The provisions dealing with heterosexual acts set the following limits. First, under Section 7 of the Sexual Offences Act, 1956, it makes it an offence to have unlawful sexual intercourse with a defective. Section 128 of the Mental Health Act, 1959, makes it an offence, first, for a member of the staff of a mental hospital to have unlawful sexual intercourse with a patient, and secondly, for any man to have unlawful sexual intercourse with a mentally disordered patient in his guardianship, custody or care.

Under the Amendment which the right reverend Prelate has moved, any person suffering from mental illness (even if not a mental patient or in no way brought within the procedures of the Mental Health Act, 1959) would be unable to give a valid consent to a private homosexual act with any person. The Amendment makes any sexual act committed with a demented person an offence and would be much wider than the present position.

As the right reverend Prelate made clear, subsection (2) of the proposed Amendment deals with understandable ignorance of mental disorders on the part of the other party. This is one safeguard. But the Amendment then still goes wider than the existing analogous heterosexual provisions. The existing provisions for indecent assaults on men and indecent assaults on women are identical: Sections 14(4) and 15(3) of the Sexual Offences Act, 1956. A defective cannot in law give any consent which would prevent an act from being an indecent assault.

The position, therefore, is that if the right reverend Prelate's Amendment, as it stands, were accepted, it would go very much wider than the present position, and he may not wish that to be. It is for the right reverend Prelate to indicate whether he does wish to widen the field in this way, or whether he might feel that it would be advisable to withdraw the present Amendment with the idea that, with any necessary alteration, a new Amendment covering the same point can be submitted on the Report stage.

THE LORD BISHOP OF LONDON

I thank the noble Lord for that explanation. It was not our purpose to widen the scope as fully as the noble Lord explained might be the case. I would, therefore, beg leave to withdraw this Amendment in the hope that it can be redrafted in a more satisfactory form for the Report stage.

VISCOUNT DILHORNE

Before the right reverend Prelate takes that course, I should be very grateful to him if he would make quite clear exactly what it is he wishes to achieve. As the clause is drawn, its effect is really more curious than the noble Lord, Lord Stonham, suggested. In fact, it would mean that the mentally defective was liable to prosecution, when if he had in fact been able to give a consent he would not be able to any prosecution. What I should like to have made clear by the right reverend Prelate is this. Is what he is seeking to do to ensure that anyone who commits a homosexual practice with a mentally defective shall still be within he ambit of the criminal laws to the same extent as a man who has intercourse with a mentally defective woman? Is hat what the object is? Because tying his particular clause to the giving of consent in certain circumstances produces extremely difficult and awkward circumstances.

THE LORD BISHOP OF LONDON

The purpose was to get that sort of relationship which has been referred to, as where it is an offence for a man to have unlawful sexual intercourse with a women who is mentally defective, and to enable some protection to be given to patients, or mental defectives, whose position, because of their deficiency, could be abused by those who wish to make use of them. If we have not achieved that by the wording of this Amendment, then I shall be very glad to have it achieved by a proper course.

Amendment, by leave, withdrawn.

Clause 1, as amended, agreed to.

THE LORD ARCHBISHOP OF CANTERBURY moved, after Clause 1, to insert the following new clause:

Homosexual offence with person over 16 but under 21 years of age

". A person who has attained the age of 21 years who commits a homosexual offence contrary to section 12 (Buggery), section 13 (Indecency between men) or section 32 (Solicitation by men) of the Sexual Offences Act 1956 with another person who has attained the age of 16 but has not attained the age of 21 years shall be guilty of an indictable offence and shall be liable to a maximum penalty of 5 years' imprisonment."

The most reverend Primate said: I beg to move Amendment No. 10. Its purpose is to give effect to what I believe to be an important part of the Wolfenden recommendations concerning penalties and protection of the young. The effect of this new clause, if it were accepted, would be twofold. First, it secures a maximum penalty of five years for a variety of offences between adults and boys between the ages of 16 and 21. Hitherto, in cases of gross indecency between people in this category the maximum penalty has been two years, and to make the maximum five years for gross indecency, alongside the other group of offences, would give some of that added protection to the young which I believe to be so highly desirable.

The second effect of this new clause would be to bring homosexual buggery into the same class of penalty as these other offences. The Committee has already decided that in respect of consenting adults the criminal distinction between sodomy and other homosexual offences is removed. With that step taken, it seems unsatisfactory that here there should be such a big disparity between a life sentence for sodomy and the present maximum sentence of two years for other homosexual offences. Therefore, the clause, by bringing homosexual buggery between these persons into the same categories as the other offences so that they are all subject to a maximum penalty of five years, I think is doing the right thing, and I believe that it would provide a workable law with sufficient penalties and more protection for the young than the existing law provides. I beg to move.

Amendment moved— After Clause insert the said new clause.—(The Lord Archbishop of Canterbury.)

10.40 p.m.

VISCOUNT DILHORNE

I know this Amendment follows the recommendation of the Wolfenden Committee, but I would ask the most reverend Primate to think again with regard to this Amendment, as indeed he did think again, I gather, after expressing his assent to the proposition put forward by my noble and learned friend Lord Kilmuir on the earlier Amendment. I have no objection to raising the maximum sentence for gross indecency when it is committed with a youth of the age of between 16 and 21, which is one part of what this Amendment seeks to do; that is indeed a protection of the young. But I have very strong objection to the reduction of the maximum sentence of life for buggery, to five years, when the buggery is committed by an older man with a youth of between 16 and 21 years. Here we are not concerned with the question of consent at all: that does not arise; here we are concerned with the one thing that one really does want to discourage—namely, offences of this sort committed by older men with youths.

Under this proposal, if someone of forty or fifty commits this offence of sodomy with a youth of 17 he will be liable to a sentence of only five years' imprisonment, although it may be that he has had several previous convictions for precisely the same type of offence. It is not enough as a maximum, and I think it would be much better to leave the maximum where it is for that offence and leave it to the judgment of the judges. I am sure they can be relied upon to exercise it wisely and correctly.

I say it is not enough because I have been engaged in years gone by in some very distressing cases. I might perhaps mention one case because it happened so long ago that I think I can safely speak about it. It was a case of a middle-aged man with a number of youths. He had served a sentence of seven years, and having served that sentence he came out and it was not a long time before he had committed a whole series of these offences in the most disgusting circumstances with a whole series of youths. Of course it could be said, and truly said, that that man was not going to be reformed by a sentence of imprisonment, be it five or seven years. There I entirely agree. But that man had to be kept out of circulation if the youth in that part of the world were to have any protection at all, and five years really would not have been enough, either for the first or the second sentence.

I do not think this recommendation in the Wolfenden Committee's report is really so very positive. Your Lordships will see in paragraph 89, in the second half of the first sentence—I will not read the whole of it, if the noble Lord, Lord Byers, will forgive me—

LORD BYERS

I thought I had better just check it.

VISCOUNT DILHORNE

I will read as much as the noble Lord bikes. I will not read the first half of the sentence because it is irrelevant to this point: and there may even be a case for retaining the present maximum penalty of life imprisonment for really serious cases (for example, those in which repeated convictions have failed to deter a man from committing offences against young boys. or cases in which serious physical injury is caused in circumstance approximating to rape), though cases of this sort would fall into the category of indecent assault, They then say that the maximum penalty of ten years for indecent assault should normally suffice for even the most serious cases. What I should like to see here is a maximum which gives the courts power to deal properly and adequately with the most serious cases. I really do not think five years, again for uniformity, for treating sodomy the same as gross indecency—and the character of the offences must differ very widely indeed—is giving enough discretion to the courts.

If your Lordships would turn to paragraph 92 of the Wolfenden Report you will find that halfway down one finds this sentence: In prescribing maximum penalties, the law must necessarily have regard to the worst case that could arise ". And then they say: the penalties we have suggested are intended to be maximum penalties applicable to the worst cases that could arise in each of the categories. I do not think Wolfenden is right about that. I do not think the courts would take the view that that maximum is the maximum applicable to the worst kind of cases that come before the courts. I appreciate the desire of the Wolfenden Committee to try to get more uniformity into our maximum sentences. In fact one can pay too big a price for it. I would ask the most reverend Primate whether he would withdraw this Amendment and give further consideration to it, and perhaps himself consult some of those who are charged with the duty of trying these cases and determining what are the appropriate sentences, bearing in mind that what one wants is a maximum which will be applicable to the worst cases which will arise.

THE LORD ARCHBISHOP OF CANTERBURY

When the noble Viscount refers to the worst cases, are they not those described as indecent assault?

VISCOUNT DILHORNE

I would not say they are always. They sometimes may be. Some cases of sodomy I would say, are much worse than indecent assault. I do not think one would normally want to go over ten years, perhaps, for indecent assault. What the most reverend Primate is suggesting is that the maximum should be five years for offences committed by a man over 21—maybe 40 or 50—with another man between 16 and 21. If there was ever a case where one should be careful to see that the maximum was adequate for the worst case of that character within those age groups, surely it is that. I do not believe that five years gives an adequate margin. I think one ought to trust the judges more and increase the margin. I am not concerned with keening "life". I do not believe anyone would pass a life sentence for this offence in these days. But I do stress as strongly as I can that to go from life to five years is to go too far.

LORD STONHAM

On this occasion I would support almost entirely the advice given by the noble and learned Viscount to the most reverend Primate, if not entirely for the same reasons he advanced. There are more anomalies which would be created than have so far been mentioned. I think we would all agree—certainly I would agree—that it is a reasonable proposal to increase the maximum penalty for the offence of gross indecency from two years to five years. This would lessen the disparity which many of us regret between offences against the person and against property. The other alteration which the most reverend Private suggests, returning to a maximum of five years from the present maximum sentence of life imprisonment, really creates quite a number of extraordinary anomalies because the most reverend Primate will recollect that Wolfenden recommended four reductions of sentence, all of them related to buggery. Therefore, if we accepted the partial implementation of the Wolfenden recommendation, we should have some remarkably anomalous results. For example, buggery of a 20-year-old would carry five years imprisonment if the offender was over 21, but if the offender was 17 it would carry life imprisonment; and an offence of buggery in public between consenting adults of any age would also carry life imprisonment. I can confirm, much as it is hateful to me, that there are men in prison who are actually serving life imprisonment for this offence, and they are indeed extraordinary and tragic cases. Equally, there is a much larger number of men in prison who are serving comparatively minor sentences, as the noble and learned Viscount pointed out. But the Amendment also departs from Wolfenden by providing that the importuning of a youth should carry five years' imprisonment, though Wolfenden proposed that the maximum penalty for all forms of male importuning should remain at two years.

There is one further point, although it is a minor one: even if your Lordships did feel, with the most reverend Primate, that his Amendment as it stands should be proceeded with, I should have to ask that there should be an addition to it, because any increase in maximum penalties must be expressly said (and I hope the noble and learned Viscount will agree with this) not to apply to offences committed before the commencement of the Act. That is an established principle for increases in these penalties. So I hope that what has been said in this somewhat unusual alliance on this occasion will mean that the most reverend Primate will feel able to accept this advice.

There is just one other anomaly—it is remarkable how many there are, when one examines the matter. The noble and learned Viscount, Lord Dilhorne, mentioned buggery by assault on a 16-yearold by a 21-year-old, for which Wolfenden recommended ten years. But I am advised that it does not necessarily follow that the Archbishop's Amendment would apply to that case, to reduce the maximum to five years, since the man would probably be charged with indecent assault for which the maximum would be ten years. This is just another point which would have to be clarified in the Amendment. So I hope that the most reverend Primate will feel able to withdraw the Amendment, on the understanding that it may be possible to look at it again on Report stage and achieve at least something of his objective.

THE EARL OF CRANBROOK

I had not intended to take part in this debate, but I would ask the most reverend Primate not to withdraw this Amendment. One of the things that has struck me during the course of the debate has been the tremendous emotion which the crime of sodomy seems to arouse, emotions to which noble and learned Lords here are no more immune than are the rest of us. I cannot but feel, with that example before me and before the rest of your Lordships, that this is quite clearly a case for which Parliament itself should lay down the limit of the penalty which should be imposed, and that that limit, on the principles which we followed in a Division earlier this evening, should be the same as applies to an act of gross indecency. It is obvious that this Amendment will need tidying-up. I should hope we might accept it this evening, accept the principle of it, and tidy it up on Report stage.

THE LORD ARCHBISHOP OF CANTERBURY

I still adhere to the essential content of my Amendment, for what it is worth; namely, bringing to an end the great disparity in this category between a life sentence for one kind of homosexual behaviour and the very much smaller sentence for another. I think that all the contents of the Amendment are good. I accept the advice of the Home Office that there are other matters of penalty with which this clause does not deal and which ought to be dealt with; and I certainly pay great attention to the plea of the noble and learned Viscount that there is a category of the mad, repetitive offender for whom there may need to be some special provision so long as the category is not determined simply by the nature of the physical act, which, as I have tried to indicate before, is a wrong basis.

But the points made on both sides of the Committee seem to me to be supplementary to the content of my Amendment rather than arguments for its withdrawal; so I should like to persist with it, while welcoming very much the addition of some of these supplemental suggestions at the Report stage.

VISCOUNT DILHORNE

I am sorry that the most reverend Primate is to take that course. I should much prefer that he withdrew this Amendment—he has expressed his point of view—and tried to redraft it so as to meet with general approval. It will not be at all easy to change this Amendment in a way that would meet the difficulties raised by Lord Stonham, or to meet the points raised by me. What will happen, if this Amendment is carried, is that we shall have a long debate on Report stage and cut it out again; and nothing will be left to put in its place. Surely it would be better for the most reverend Primate and his friends to withdraw the Amendment now and try to devise some form that we could accept. I can assure him that if this new clause is carried in its present form there will certainly be efforts to have it taken out of the Bill completely on Report stage.

THE LORD ARCHBISHOP OF CANTERBURY

There may be efforts to take it out completely; but while welcoming the Amendments to the Bill with which I feel sympathetic, I hope that those efforts will be defeated.

LORD STONHAM

If the most reverend Primate will allow me to say so, I am sure he would not wish to add an Amendment to this Bill which would create more anomalies than it removes and which, in the particular instance which I mentioned to him, might do more harm than good. It is absolutely necessary, in any Amendment of this kind, to include a provision that any increase in maximum penalties must be expressly said not to apply to offences committed before the commencement of the Act. Withdrawal now, on the understanding that the intention is to endeavour to introduce on Report stage an Amendment which does what the most reverend Primate wishes to do, but at the same time avoids doing what, according to the best legal advice is wrong or unnecessary or cannot be done, seems the path of wisdom, rather than that we should pass this Amendment now and leave ourselves the almost impossible task of trying to put it right on Report.

THE LORD ARCHBISHOP OF CANTERBURY

I think the noble Lord, speaking for the Home Secretary, has now expressed sufficient identity of view with what I regard as the main content of this clause that I am content to withdraw it, in the hope that a better one will be introduced on Report stage.

Amendment, by leave, withdrawn.

11.0 p.m.

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

Prosecution for buggery or gross indecency

" .—(1) No prosecution in respect of buggery between men or gross indecency between men shall be commenced except by or on behalf of the Director of Public Prosecutions or with the sanction of the Attorney General against a man who was under the age of 21 years at the date of the offence charged, if the offence was committed in private.

(2) For the purposes of this section an offence shall be presumed, unless the contrary is proved, to have been committed on the date of the offence stated in the charge or indictment."

The right reverend Prelate said: I am not the Lord Archbishop of Canterbury, but I beg leave to move this Amendment on his behalf. Its effect is to give support to Recommendation No. (iv) of the Wolfenden Committee. The first clause of this Bill leaves as an offence any indecent homosexual act committed by a male person under 21. Under what circumstances should criminal proceedings be taken? The Wolfenden Committee themselves suggested that where the offender violates public decency or otherwise causes a public nuisance—for example, by persistent importuning—proceedings should continue as they are now; and where his behaviour is such as to constitute an indecent assault—that is to say, where a homosexual act is carried out against the consent of a partner, or where the partner was incapable by reason of age or mental defect of giving consent—clearly the law should continue to deal with it. In addition to those suggestions of the Wolfenden Committee, it might well be that proceedings should be taken where conduct seems to have been criminal or vicious or where there has been an element of prostitution or blackmail.

But there will be other cases where the need is for remedial treatment rather than for a prison sentence. Prosecution may not provide a solution in every case. The Amendment therefore seeks to secure an element of discretion in that no prosecution should be commenced except by, or on behalf of, the Director of Public Prosecutions, or with the sanction of the Attorney General. This would have the additional value of providing uniformity of practice with that which happens in Scotland, where homosexual offences are prosecuted usually in the sheriff's court by the procurator-fiscal. This Amendment would make proceedings in this matter in England and Wales similar to those in Scotland. I beg to move.

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

VISCOUNT DILHORNE

I hope, again, that the right reverend Prelate will withdraw this clause after consideration, because this raises issues which he has not touched upon. What he is wanting to secure, as I see it, is some uniformity of practice in the institution of prosecutions, but this is limited to requiring the consent of the Director or the Attorney-General where the accused was under the age of 21 years.

I say, first of all, that I do not think it is right to make the consent of the Director or of the Attorney General a condition precedent to the institution of a prosecution of this kind. What the right reverend Prelate requires, I think, can be satisfactorily met by an amendment of the Prosecution of Offences Regulations, 1947, under the Prosecution of Offences Acts, 1879 to 1908. Under these Regulations it is the duty of the Director of Public Prosecutions to institute, undertake or carry on criminal proceedings in, among other things, any case which appears to him to be of importance or difficulty or which for any other reason requires his attention. Regulation 6 makes provision for the reporting to the Director of Public Prosecutions of various numbers of offences among which are those under the Punishment of Incest Act, 1908, and offences of sedition and so forth.

So what one can achieve if the Government undertake to amend this Regulation (and this is where I go wider than the right reverend Prelate) is that every single case—and I think I would say every single case of prosecution for buggery, whether the person is under 21 or not—should be reported to the Director of Public Prosecutions, who will then have power, under these Regulations, if he thinks it is right to do so, to institute a prosecution. It is therefore unnecessary to go this further step, which is sometimes taken, of requiring the consent of the Director or the Attorney. In fact, that form of clause is nearly always objected to. I doubt very much whether Wolfenden was aware of the other system which has been in operation, but this form is always objected to. It is quite unnecessary, too, to have them both in the clause, as the Director works under the supervision of the Attorney.

Then there is the further difficulty on subsection (2), which says that the date of the offence shall be presumed to be the date stated in the charge or indictment. It is a perfectly proper charge in an indictment to say that the offence was committed on a day between January 1 and June 1. That would make the calculation of the date extremely difficult from the point of view of this clause. If the right reverend Prelate would withdraw this Amendment and join with me in pressing Her Majesty's Government to include these offences, and not limit them to offences in relation to a man under 21, and would join in pressing an amendment of these regulations, I think that would meet his point and the substance of the point raised in Wolfenden.

LORD STONHAM

I cannot give any undertaking such as has been suggested by the noble and learned Viscount, Lord Dilhorne. At the same time, I would give the same advice that he gave, that the Amendment should be withdrawn, but for different reasons. I think that a much simpler Amendment could be presented next time—because, in the view of the Government, there is no objection to the principle of this Amendment. But I have to point out that the accepted modern wording for this kind of provision—and I am quoting—is: … except by or with the consent of the Director of Public Prosecutions", with no reference to the Attorney General, as I think the noble and learned Viscount, Lord Dilhorne, said.

Provisions which I have just quoted—those exact words—would allow for cases to be prosecuted by local police forces, subject to the consent of the Director of Public Prosecutions being obtained, but it would be inconvenient to have a provision that prosecutions should not be brought by anyone other than the Director; and, since the Director works under the general direction of the Attorney General, it is not considered appropriate to mention both of them. Therefore it is really quite a simple Amendment that is required.

There is one other point which I must add, and that is that I am advised that this particular Amendment would impinge to some extent on the Forces, because it would not be practicable to obtain the necessary consent or sanction for prosecutions by court-martial to be held at sea or in overseas commands. The right reverend Prelate might therefore feel disposed, in order to cover that point, to make provision in his revised Amendment at Report stage for an additional subsection in these words: This section does not apply to prosecutions under the Army Act, 1955, the Air Force Act. 1955, or the Naval Discipline Act, 1957". I would submit that those are quite simple changes, which would, I am advised, bring the Amendment quite in order, so far as the Government are concerned, and would wholly meet the point which the right reverend Prelate has in mind. I hope that he will feel able to follow that course.

VISCOUNT DILHORNE

Would the noble Lord look at the alternative way of doing it, under the Regulations? Because in English law there is the well-established right, in theory, that anyone can institute a prosecution, even though it be for murder. What one wants is machinery on top of that whereby cases of this kind come within the purview of the Director of Public Prosecutions, where he can undertake it, if he wishes, and take full control, or leave it to the local police to operate. If he takes control, he can stop the case. He has power to do that. I think that would make it simpler. I hope the noble Lord will say that he will look at that rather than do something which, on the face of it, restricts the right to institute prosecutions because you have to get consent to the prosecution being instituted. I think, in practice, that would meet the right reverend Prelate, and I only press the noble Lord to look at this as a possible alternative.

LORD STONHAM

I shall be glad to look at that. What I said was that I was unable to give the undertaking that the noble and learned Viscount asked for. The position is that on the advice I have been given the Government's position would be fully met. But I will certainly do as the noble and learned Viscount suggests. I had in mind the feeling of what time is available in order to get a decision on this point and advise the right reverend Prelate. But I will certainly look at it and do what I possibly can in the matter.

THE LORD BISHOP OF LONDON

As the principle at issue has been so fully recognised, I should certainly not wish to press the Amendment in its present form. It obviously needs improvement, especially as to the last point to which the noble Lord, Lord Stonham, referred, about the Armed Forces. Therefore, in the hope that we can secure what is desired, whether it be by an amendment of the Regulations or, as Lord Stonham suggested, by his suggested Amendment—we shall have to look at it—I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

11.12 p.m.

THE LORD ARCHBISHOP OF CANTERBURY moved, after Clause 1, to insert the following new clause:

Medical evidence in respect of convictions under sections 12, 13 and 32 of Sexual Offences Act 1956.

" .—(1) Where a man is convicted of an offence to which this section applies and the man was, or appears to the court to have been, below the age of 21 years at the date of the offence of which he is convicted, the court by or before which he is convicted shall, before dealing with the case, consider the written or oral evidence of a medical practitioner in respect of that man.

(2) For the purposes of the foregoing subsection the medical practitioner whose evidence is to be taken into account shall be a practitioner approved for the purposes of section 28 (General provisions as to medical recommendations) of the Mental Health Act 1959 by a local health authority as having special experience in the diagnosis or treatment of mental disorders and the provisions of subsections (2), (3) and (4) of section 62 of that Act (which provides for the reception of medical evidence) shall apply.

(3) This section applies to any offence under section 12 (Buggery), section 13 (Indecency between men) and section 32 (Solicitation by men) of the Sexual Offences Act 1956."

The most reverend Primate said: The purpose of this new clause is to secure that when youths are charged and convicted for homosexual offences, before they are sentenced the court should receive a medical report. Clause 2 defines the nature of that report and the status of the doctor who gives it. There is not the slightest intention in this new clause of trying to substitute medicine for criminal justice. These acts are crimes on which there is a conviction and sentence and punishment. But the fact is that there has been a very big disparity throughout the country in the penalties given to youths for these offences, and it is hard to think that the penalties are always related to the condition of the youth.

The conditions of youths convicted of these offences may vary considerably. The youth may have some deep abnormality that needs treatment and correction. He may have some very superficial aberrations. He may be a generally vicious youth with a grudge against society, his viciousness taking this particular form. The youth's moral condition and need may vary enormously. In order to assist the court to form a right judgment as to how the youth should be treated and punished, the clause makes this provision for the report required. I beg to move.

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

LORD STONHAM

On this occasion we feel that this Amendment tries to do something which is already being done, and therefore it is not really necessary. It can, of course, be accepted that in a number of cases where a homosexual offender is under 21 the court will certainly need a medical report, although perhaps not a purely psychiatric report, before passing sentence. But in view of the factors which I will now mention, your Lordships will wish to consider whether a statutory requirement is necessary or desirable.

The first point that I would mention is that, since the Wolfenden Committee reported, the Streatfeild Committee has made recommendations about the information needed by courts before sentencing offenders. The general principles they enunciated have been brought to the attention of all courts, and it would be fair to say that there is an increased awareness about the need for psychiatric and other reports on offenders, and all courts have ample powers to remand offenders for the purpose of reports.

Secondly, the Streatfeild Committee also recommended improved arrangements for the actual preparation and submission of reports on offenders committed for trial, as all persons charged with buggery and gross indecency must be at present. Under these arrangements, which have been generally adopted by courts of assize and quarter sessions, a social inquiry is prepared on every accused person under 21 who consents to the necessary inquiries being made before the trial. Where an accused person is committed in custody, probation officers have been asked to draw the attention of the prison medical officer at the earliest possible stage of their inquiries to any case in which the inquiries suggest the need for a medical report. Where an accused person is committed on bail without a condition that he should undergo medical examination, mention is made in the social inquiry report of any cases which suggest that a medical report may be needed. And none of these arrangements derogates from the power of the court to decide itself that sentence must be adjourned so that further reports can be obtained.

Thirdly, if the court is considering imprisonment on an offender to which the Amendment applies, it is obliged, under Section 17 of the Criminal Justice Act, 1948, to obtain and consider information about the circumstances and to take into account any information before the court which is relevant to his character and his physical and mental condition. The court could not impose imprisonment unless it was of opinion that no other method of dealing with the offender was appropriate.

Fourthly, the Wolfenden Committee recognised that it would be odd to have a statutory requirement for reports on homosexual offenders only. It was not clear to them that homosexual offenders should be singled out from all other offenders for this special procedure. If a report of the kind proposed was to be compulsorily required, there seemed to them to be no reason why the requirement should not be extended at least to other sexual offenders; indeed, outside the range of sexual offences altogether, there were other crimes which seemed to the Committee to need medical investigation no less. Also, the Committee did not think that much would be gained by making obligatory what was at present within the discretion of the court, because if a court was not disposed to use its discretionary power to call for a report, it seemed doubtful whether it would be greatly influenced by a report which it was compulsorily required to obtain. Finally—and I think this is a point of importance—in some cases, particularly the minor cases of indecency where small fines are so often imposed, medical reports might be quite unnecessary, and the offender might even suffer considerable hardship by being remanded for such a report, particularly if he was remanded in custody when, without this Amendment, he would merely be fined and that would be the end of it.

The other point which I raised on the previous Amendment, with regard to the Forces, also applies here, because it is not practicable for a court martial in a Forces command to obtain the report of a practitioner approved for the purpose of Section 28 of the Mental Health Act, 1959, by a local health authority, as is mentioned in the Amendment.

Therefore, in any case, whatever the decision of your Lordships on the Amendment as it stands, we should have to ask for subsection (3) to be added to the Amendment to cover the position of the Forces. But the most reverend Primate may feel, in view of the rather substantial evidence which I have put forward, that what he wishes to do is in fact being done, except in those cases where it would be unnecessary or harmful and serve no useful purpose. He may feel that the Amendment may be withdrawn without damaging the present position.

THE LORD ARCHBISHOP OF CANTERBURY

I find a little lack of clarity in the Minister's statement. On the one hand, he urges that this clause is unnecessary because what it asks for is almost invariably done; on the other hand, he speaks of courts in which it is not done because the courts would not be in sympathy if they were told to do it. Thus he leaves the impression with me that there are courts which could profitably follow this procedure and do not.

LORD STONHAM

I am sorry if I did not make myself quite clear. The changes brought about since the Wolfenden Committee reported, by the implementation of the recommendations of the Streatfeild Committee, have to a large extent transformed the position. The point about magistrates not taking much notice of a report which they were compulsorily required to obtain, when in their own judgment they felt the report was not necessary, seems to me quite a reasonable one; and I am bound to say that I myself would be very sorry to see a compulsory provision, which would mean that in many of these cases where a fine would be imposed and that would be the end of the matter, a person would have to be remanded for a compulsory medical report when the circumstances might not justify it.

Some 34,000 or 35,000 people are remanded to prison every year; 8,000 of them are remanded for medical reports and only 1,000 odd are subject to orders under the Mental Health Act. I should hesitate long before incurring a risk that those numbers might be substantially and unnecessarily augmented.

THE LORD CHANCELLOR

If I may express a personal viewpoint, I cannot think it right that a young man under 21 should be sent to prison for an offence of this kind without there being a medical report, and with the greatest respect to my noble friend Lord Stonham I have known of a case quite recently where, in respect of Section 17, a young man under 21 was sent to prison for such an offence without any medical report at all being called for. Under that section the court is told to obtain a considered opinion about the circumstances—but that is not a medical report—and to take into account all information before the court which is relevant to his character and his physical and mental condition; but neither the prosecution nor the defence produced a medical report, and so they had not any medical report and they sent him to prison. I would respectfully suggest to the most reverend Primate that he should stick to his guns.

VISCOUNT DILHORNE

I hesitate to intervene in this battle on the Front Bench opposite. It is enjoyable to watch and I hope I shall not tilt the scales if I come in; I hope also that it will not be an unnatural alliance, although perhaps I ought not to use that term, if I rather associate myself with the noble Lord, Lord Stonham. I feel that the courts now, since Streatfeild, have ample powers for getting reports where, in the opinion of the courts, they would be of the slightest use to them in determining what is the right course to take. Sometimes one seems to imply that the people who have to decide this difficult duty are stupid and inhumane or do not bother, but of course the truth is that they want to take the right course and they want all the help they can get to enable them to do so. I do not believe that at the present time the courts have any hesitation in asking for that information and seeing that they get it where they think it will be useful. In the case the Lord Chancellor mentioned, I do not know what the facts were; it may be one of those cases where anyone with experience of that type of matter would think a medical report would be of no use at all.

I am certainly with the most reverend Primate in saying that I think it is very important that medical reports should be available where they can be the slightest assistance, but I share the view of the noble Lord, Lord Stonham, that it might be very tiresome to make the furnishing of such reports essential and compulsory in every single case. Take indecency between men; that may be extremely grave or it may be absolutely trivial. The sort of case comes up of such a trivial character that all the court thinks it necessary to do is to read the youth under 21 a very severe lecture and give him a very good warning; that may be all that is necessary in the light of his family background and so on. To say in that sort of case that it must be compulsory to have a medical report must mean that the youth will have to be remanded, perhaps in custody, for 14 or 17 days to get that medical report. I think there is a real problem here, but time is getting on and I should have hoped that this was one of the problems to which we could return on another occasion and have a much more full discussion. I should like to hear very fully from the noble Lord exactly the powers of the courts for obtaining information in cases such as this.

LORD CHORLEY

Speaking as a chairman of quarter sessions, I would say that Streatfeild, of course, is admirable, but it is extraordinarily difficult to carry out in practice, especially at quarter sessions which adjourn for weeks at a time. And one is faced with the alternative of keeping the man six or eight weeks while one gets a medical report about him, or, if it is not a serious case, dealing with him there and then. If some method could be devised by which the probation officer or somebody else could judge whether a medical report was necessary, so that it came before the bench which had to minister the sentence, it would be an enormous improvement. It is very difficult, in the circumstances of the work of the courts, to carry out the Streatfeild recommendation in the way one would like to see.

LORD BRAIN

I support the Amendment. I think it is very desirable that a medical report should be available in these cases. There are many complexities of human nature, and some of these young men may be suffering from high degrees of mental subnormality or other mental disorders not at all clear to the layman. It may be that the court will think it has no need of the medical report and would not benefit from it; but the court may be wrong; and if it is it can correct its view when it receives the report. It seems to me that to leave the situation optional is not to deal with the problem in the most effective way. It is not a question of whether the court has power to obtain the information, but whether in all suitable cases it avails itself of the power. I think the Amendment would provide information which would not be available to the courts otherwise and which would be of value.

11.30 p.m.

THE LORD ARCHBISHOP OF CANTERBURY

I am impressed by the point made by the Minister, that if this clause became law it might in some cases create an unnecessary delay and remand for an inquiry in matters so trivial that it was not really necessary. On the other hand, I am impressed, and shocked, by the news given by the Lord Chancellor, of the case of a youth imprisoned without a medical report. If that indeed does happen, it means that the position is not as cheerful as that suggested by the noble Lord, Lord Stonham. But, as the hour is late, I will withdraw the Amendment, allowing myself to make one concluding observation: that if only Her Majesty's Government would introduce a Bill, and the Home Office would give us a Bill, in which all these things were gone into, the proceedings would be more orderly, more coherent and far more progressive.

Amendment, by leave, withdrawn.

THE EARL OF ARRAN

We discussed this Amendment (No. 13), relating to the Armed Forces, when we were discussing Section 66 of the Army Act generally, and I think it was agreed that we should have talks about this and try to introduce something which will meet all the views concerned. Subject to the approval of the other movers of this Amendment I shall not move the Amendment.

THE CHAIRMAN OF COMMITTEES

I understand that the noble Baroness, Lady Wootton of Abinger, is not here and that Lord Chorley is moving the next Amendment. But the noble Earl, Lord Arran, has his name down to the Amendment. I do not know who will move it.

11.32 p.m.

LORD CHORLEY moved, after Clause 1, to insert the following new clause:

Limitation of prosecutions. 1960 c. 33.

". No Court shall try any indictment or information alleging a homosexual offence other than an indecent assault or an offence against the Indecency with Children Act 1960, unless the prosecution was commenced within 12 months from the date of the earliest offence alleged in such indictment or information."

The noble Lord said: On behalf of my noble friend Lady Wootton of Abinger, I beg to move the Amendment standing in her name. I can explain this shortly. During the earlier discussion, both in the general preliminary debate and also on Second Reading, various cases were mentioned in which, as a result of blackmail episodes, information was obtained by the police about earlier homosexual offences going back in some cases for several years, and as a result of this information being obtained prosecutions were launched. A general feeling was expressed by a number of your Lordships that this was quite unjust and unfair, and we therefore felt that it would be useful to have in the Bill itself a provision limiting the period within which prosecutions could be brought, and that is provided in this Amendment.

Your Lordships will see that it excludes cases of indecent assault and offences under the Indecency with Children Act, 1960, but in the generality of the cases imposes a limitation period of twelve months. The general rule in England, under the Common Law, is that there is no limitation period in regard to criminal charges. But in a substantial number of cases limitation periods have been introduced by Act of Parliament; so that this will not be anything out of the way. I have here a list of some twelve different Statutes with different limitation clauses, varying from blasphemy through to marriage offences, Revenue offences—even to treason. The nearest one to this is offences against girls under the Sexual Offences Act, 1956, where, in cases of unlawful sexual intercourse, or an attempt at this offence, with girls between 13 and 16 years of age, the limitation period is fixed at twelve months from the time of the commission of the offence.

This Amendment would be very similar to that and it is a not dissimilar type of offence. In all the circumstances I am sure the Committee will agree that this is a very proper provision to insert in this Bill. I beg to move.

Amendment moved— After Clause 1, insert the said new clause—

Limitation of prosecutions 1960 c. 33.

" . No Court shall try any indictment or information alleging a homosexual offence other than an indecent assault or an offence against the Indecency with Children Act 1960, unless the prosecution was commenced within 12 months from the date of the earliest offence alleged in such indictment or information."—(Lord Chorley.)

LORD BOOTHBY

Before the noble Lord, Lord Stonham, speaks, I should like to quote the case of Scotland, which I think in this respect is extremely important. As noble Lords probably know, no cases of this kind can be brought except by the procurators fiscal, who are themselves agents of the Lord Advocate. What they call "stale offences"

VISCOUNT DILHORNE

May I follow the example of the noble Lord and interrupt him? The question of consent by the Attorney General was the subject of Amendment No. 11. We are now on Amendment 14.

LORD BOOTHBY

So I am not in order at all? I may be on the wrong Amendment, but I think it is quite important. I do not think I am very much out of order so I am still going to say a few words. Under the law of Scotland what are called "stale offences"—that is, offences over six months old—are not allowed to be brought except with the approval of the Crown Office, which is with the approval of the Lord Advocate himself. I think that worked very well in the past and I hope the English will learn once again from the Scots.

LORD STONHAM

The present practice in relation to homosexual offences is that the Director of Public Prosecutions advises against the prosecution of stale offences except in cases where there are also current offences, when a count may be added in respect of old matter so that the court may be aware on conviction that the particular homosexual practice charged has continued over a period. The point which the Committee are now asked to consider is whether, despite this, a complete ban on stale prosecutions should now be imposed or whether there is a case for continuing the present arrangements, perhaps strengthened by a statutory requirement that such offences should be prosecuted only by or with the consent of the Director of Public Prosecutions.

The Committee may decide in favour of the principle of the proposed new clause. I am not opposing the principle of it, but I would mention that in the view of the Home Office the drafting may need revision. To give one example: the Amendment uses the words "other than an indecent assault". In law, it is doubtful whether this would include buggary by assault. Obviously my noble friends would not wish to grant immunity to those who commit such offences. But, subject to the possibility of redrafting, I wish to raise no objection.

LORD BOOTHBY

May I ask the noble Lord one question? Has the Director of Public Prosecutions in England powers comparable with those of the Lord Advocate in Scotland? The power of the Lord Advocate is complete.

LORD STONHAM

I am not fully conversant with the powers of the Lord Advocate in Scotland; but on the description of the noble Lord I think the powers of the Director of Public Prosecutions at the moment, without statutory provision, fall short of them.

LORD CHORLEY

It was clear during the earlier discussions that he had no actual power. He could just advise. There have been some cases where prosecutions had been brought by the chief constable against the advice of the Direc tor of Public Prosecutions. But the Home Office is prepared to accept this in principle, and if the noble Lord, Lord Stonham, would agree to help us with the drafting we should be happy to put the Amendment down against on the next stage.

11.40 p.m.

VISCOUNT DILHORNE

The Home Office expresses that view, but of course this is one of the occasions when the noble Earl, Lord Arran, expresses no view at all, although it is his Bill. There is a remarkable silence. I hope the Home Office will not be too forthcoming on this matter. If we are going to take the step of making these offences reportable in all cases to the Director of Public Prosecutions, then I do not think it is necessary to add to that a statutory time limit. Indeed, I can see disadvantages to it.

The noble Lord, Lord Boothby, asked whether the Director of Public Prosecutions' powers were comparable to those of the Lord Advocate. I do not think I am going to enter into that argument at this late hour of the night, but this I can say. The Director has power under the regulations to take over the conduct of any case, and it has happened in the past. I remember a case where there was a private prosecution for murder, and in theory in our country, as distinct from Scotland, anyone normally can institute a prosecution. In this case prosecution for murder was started but it was taken over under the exercise of those powers by the Director of Public Prosecutions, and he offered no evidence, and that was the end of that. So he has power to stop a prosecution.

I can see cases—there may be very few, but exceptional cases—where the public interest would think it desirable that there should be a prosecution, even though a period of twelve months had elapsed. But where the case comes before the Director, as the noble Lord has confirmed, there is a great bias against instituting anything in the nature of a stale prosecution. I hope that we should at least give a trial to the procedure which was considered under Amendment No. 11 and which was not accepted, but in which there was a discussion as to what might be done, rather than insert into the Statute a statutory time limit which will again be another exception to the general rule that in England we do not have such limits.

LORD AIREDALE

I had rather expected that the noble and learned Viscount would raise again the point which he raised on an earlier Amendment, that indictments quite often allege offences as having been committed on a certain date between two particular dates which may be several months apart. In that case I do not know whether the twelve months in this Amendment would begin to run from the earliest possible date or the latest possible date. I should have thought that was a matter which needed looking into.

LORD CHORLEY

It is covered by the words of the Amendment.

THE EARL OF ARRAN

This Amendment is, of course, in Wolfenden: it is recommendation No. (xiii). At first sight, the noble Lord was very inclined to say, as I was inclined to say: why should this particular crime be treated differently from any other? Of course, as has been pointed out by the noble Lord, Lord Chorley, it is not the only offence which is dealt with in this way. I think he mentioned eleven others, and there may be more. The one most immediately relevant is the one which he mentioned—offences against young girls.

After consideration, I think there are good solid reasons for this recommendation of Wolfenden, both in theory and in practice. If there is no limit to the period during which prosecutions may be initiated, it will surely lead to the most absurd and wrong situations. It will be possible for two men, happily married for many years, suddenly to be prosecuted for indecency committed when they were teenagers. Nor am I being fanciful. There was a case a few years ago in which a man was being blackmailed for an affectionate letter which he had written to another man in 1916, and he was frightened of going to the police about it. In this one case, of many, there should be a statutory limitation, and I hope that the Amendment will be accepted. I am mindful, of course, of what the noble Lord, Lord Stonham, has said, and if it is the wish of the Home Office that we should redraft it, so as to cover the points that he wishes to cover, it may be that the noble Lord. Lord Chorley, will be willing to look at it again and put down a further Amendment on Report stage.

LORD BOOTHBY

May I ask the noble and learned Viscount one question? I am sorry to interrupt so much, but I shall not ask any more. Is it not a fact that, under the law of Scotland, procurators-fiscal are instructed by the Crown Office never to bring any prosecution unless they deem it to be in the public interest and that if any doubt arises they must refer it to the Crown Office and. therefore, to the Lord Advocate?

VISCOUNT DILHORNE

I am afraid that I am in no position to advise the noble Lord as to the function of the procurator-fiscal. But it is always a consideration that has to be taken into account in this country, when cases are considered for prosecution, whether the public interest requires the institution of those particular proceedings. I remember that a statement was made in the House of Commons some time ago by the noble Lord, Lord Shawcross, when he was Attorney General, as to the kind of considerations taken into account in this country in deciding whether or not to institute a prosecution. I will not take up time now by repeating from memory what those factors were, but they were a very wide range of factors, all tending to the question of whether the public interest required it.

LORD CHORLEY

On the assumption that the noble Lord, Lord Stonham, will assist us in our drafting of this clause, so that we can put it down again at Report stage, I will ask leave to withdraw the Amendment.

LORD STONHAM

I think I should at this stage make the position clear. The position of the Government is that we wished to know the views of your Lordships on the principles of Amendments, and at the conclusion of the Committee stage (which I hope will be tonight) I shall consider the position of the Bill as a whole. Then, if the noble Lord cares to approach me, I shall be pleased to inform him of the result of the Government's consideration. But this particular Amendment, I understand, is rather difficult because of the defects in its drafting, and I hesitate to give any guarantee that we can solve the noble Lord's problem, or help to solve his problem, in view of the very short amount of time that there is between Committee stage and Report stage next Monday. But I will certainly do what I can.

LORD CHORLEY

It obviously should result in some improvement, at any rate, and, therefore, on the whole, I beg leave to withdraw the Amendment.

VISCOUNT DILHORNE

I understood that it is not the pleasure of the noble Earl, Lord Arran, that the Amendment should be withdrawn, in which case I assume that we should vote on it. He is in charge of the Bill, and he has said that he hopes the Committee will accept it.

THE EARL OF ARRAN

I said that I hoped the Committee would accept it, but I also said that I hoped it would be in a form which would be more suitable and would meet the views of everybody concerned, particularly the Home Department. I am quite willing if the Committee wishes it withdrawn.

Amendment, by leave, withdrawn.

11.48 p.m.

LORD JESSEL moved, after Clause 1, to insert the following new clause:

Amendment of Larceny Act 1916

" .(1) No prosecution shall be instituted in respect of any homosexual offence the commission of which is revealed or alleged during the investigation of any allegation that an offence has been committed under sections 29 (Demanding money, &c., with menaces), 30 (Demanding with menaces with intent to steal) or 31 (Threatening to publish, with intent to extort) of the Larceny Act 1916 except when certified by the Attorney General as being in the public interest.

(2) Section 29 of the Larceny Act 1916 shall have effect as though to subsection (3) thereof were added the words: ' or any homosexual act which is an offence under the Sexual Offences Act 1956 as amended by the Sexual Offences Act 1965.' ".

The noble Lord said: I will be brief in the hope that at least the principle of this Amendment will command general acceptance. The object of the Amendment is to provide that, except when certified by the Attorney General to be in the public interest, no proceedings shall be brought in respect of a homosexual offence revealed in the course of inquiries into an allegation of blackmail. Subsection (2) of the Amendment extends the protection of the Larceny Act, 1916, to cover all homosexual offences, and not only buggery, as is the case at present.

In recent debates we have several times heard about the Labouchere Amendment, and it was referred to as "the blackmailer's charter". The elimination of blackmail has been a continuous theme running through our debates, and has been used as one of the strongest arguments in favour of this Bill. Subsection (1), in fact, follows the Wolfenden recommendation (ix), which says: That except for some grave reason, proceedings be not instituted in respect of homosexual offences incidentally revealed in the course of investigating allegations of blackmail. We are told that this is what already happens in practice; but there is no statutory restraint, and at present these cases are within the discretion of chief constables or the Director of Public Prosecutions. This Amendment seeks to bring these cases under the Attorney General's fiat and to require that he should certify that the prosecution of a person blackmailed for homosexual offences is in the public interest. That is the same procedure as exists in Scotland, as my noble friend Lord Boothby has already said.

Subsection (2) implements the Wolfenden recommendation (x) and, as I have already said, extends the protection provided by the Larceny Act to all homosexual offences and not only buggery. I submit that we find this change of the law most necessary if we examine the effect of an age of consent of 21, combined with increased penalties of five years, at least for any homosexual acts committed with a person under that age. I am sure there will be increased temptation and opportunities for blackmail by young men under 21 who pose as being older and then threaten to expose their partners. It is for this reason that I say it is necessary and logical to extend the protection of the Larceny Act to all forms of homosexual offences. I beg to move.

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

THE MARQUESS OF HERTFORD

I would suggest that this is an extraordinarily important Amendment if we are to carry through the spirit which permeates this Bill. Blackmail is, to my mind, a far worse offence than buggery. We are, I think, all agreed that all forms of homosexuality are extremely unattractive, and buggery probably more so than the others. But, to my mind, none of them is anything like as destructive of human happiness and life as blackmail. The number of cases of suicide that are directly caused by blackmail is impossible to estimate, but it is substantial. Even if there was only one case in every year, that one life is a life that we now are in a position to save. I would seriously suggest that in passing this one Amendment we are now in a position to save several lives this year. It is quite a serious thought. There may well be men who are now being blackmailed and who are contemplating suicide. I strongly urge your Lordships to pass this Amendment, if only for that reason.

LORD BOOTHBY

Two sentences and two sentences only. What the noble Lord, Lord Jessel, is seeking to do is to put the law on the same footing as the law in Scotland, and there the problem of homosexuality and blackmail is negligible by comparison with what it is in England, because the Lord Advocate is in ultimate control and blackmail is simply not allowed. Therefore, I fully support the Amendment which has been moved by the noble Lord.

LORD STONHAM

I am sorry that I cannot give the noble Lord, Lord Jessel, any encouragement in regard to this Amendment, which seeks to make statutory what was merely a Wolfenden recommendation which they did not think necessary to be put in the Statute Book. The Wolfenden recommendation, in so far as is practicable, has already been put into operation, because the Director of Public Prosecutions, as I have said before, has asked his officers of police to consult him before prosecuting for blackmail offences which come to light.

LORD BOOTHBY

But, if the noble Lord will excuse me, the Director of Public Prosecutions has no authority, and if chief constables do not choose to consult him he has no authority to impose his view upon them as the Lord Advocate has in Scotland.

LORD STONHAM

I do not alter my words at all. I said, and the noble Lord, Lord Boothby, must have heard me, that the Director of Public Prosecutions has asked chief constables of police to consult him before prosecuting. I know it has been alleged that the chief constables do not consult, but it has been remarkable how difficult it is to get any details of these cases where there has been no consultation. The Director's practice is to advise a prosecution in only grave or exceptional cases, or where the complaint of blackmail is not bona fide. That seems to me to be quite responsible. But even if the allegation of blackmail is not bona fide, it will still render the homosexual offender immune from prosecution if this Amendment is accepted. If the blackmailer took part in the offence he, too, would be immune from prosecution. Everybody has said that he hates the blackmailer most of all. Do you support an Amendment which would make the blackmailer immune from prosecution?

Any restriction on the right to prosecute ought to be in the clearest possible terms so that it is apparent on the face of the charge whether the restriction applies. But the proposed Amendment depends on what may have been revealed or alleged during confidential police investigations, and is far too uncertain a criterion on which to found a power to prosecute. An accused person to whom it was not thought the restriction applied could bring confusion to proceedings at his trial by claiming that he had previously alleged blackmail to the police, and this claim would be difficult to disprove.

Finally, "in the public interest" is not a suitable criterion for covering the sort of exceptional case which nearly everyone, following Wolfenden, agrees might have to be prosecuted. We have consulted the Attorney-General, and he does not think it would be appropriate that he should have the responsibility for certifying when the public interest required a prosecution. All these objections which I have listed stem, in my view, from what appears to be a somewhat misguided attempt to put the Wolfenden recommendation on a statutory basis. Since Wolfenden did not propose a statutory provision it seems right that the Government should make it clear that the Amendment is, in their view, open to very serious objections.

Subsection (2) of the proposed Amendment seeks to implement the Wolfenden recommendation in paragraph 113 about subsection (3) of Section 29 of the Larceny Act, 1916. I do not wish, on behalf of the Government, to object to this subsection, but I would mention to the noble Lord, Lord Jessel, as he is probably aware, that the Criminal Law Revision Committee are considering the point in their current review of the law of larceny, which is nearly completed, and it would be much better to deal with the matter in any comprehensive legislation which emerges from that review. If the Committee decided to accept the Amendment despite what I have said, I must mention again that there are a number of details of drafting which would need examination. Some are quite obvious. For example, subsection (2) of the proposed new clause says that certain words should be added to subsection (3) of Section 29 of the Larceny Act, but does not say where they should be added. They could be added, of course, at a point which might produce an unfortunate result. So the Amendment is defective and, in my submission, should not he supported. I hope it will be withdrawn.

LORD BOOTHBY

May I ask the noble Lord why the Attorney-General should be afraid to do what the Lord Advocate of Scotland has done for the last 300 years?

LORD STONHAM

I did not say that the Attorney-General was afraid to do it. I said that he had considered the matter, and did not feel himself called upon to accept the suggestion.

12 midnight.

LORD JESSEL

I am in some difficulty here because in a way I accept the assurances given by the Minister in regard to the first part of my Amendment, but I cannot see any argument for not extending the provisions of the Larceny Act as I requested. Here I am in a difficulty because I think that is quite essential. It seems to me quite illogical that there is protection for one kind of offence and not for another.

LORD STONHAM

Perhaps I may suggest a way of helping the noble Lord. I made very clear the difference in our attitude to the first part and to the second part of his proposed new clause.

LORD JESSEL

You certainly did.

LORD STONHAM

My only reason for suggesting he might not wish to proceed with it was my reference to the Criminal Law Revision Committee and the work they are doing on the Larceny Act. But it so happens that the fault in drafting, which I mentioned, comes in the second subsection. He may therefore feel that the wise course would be to withdraw the whole of the proposed new clause and reintroduce the second part of it on Report stage with revision of the words that I mentioned.

LORD JESSEL

I will follow the Minister's advice. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

THE EARL OF ARRAN

It is very late. We have gone a long way to-day, and we have only a short way to go. Your Lordships may think it best if we see the whole business through now; but I am not sure that is quite the right thing to do. There are very few of us present in the Chamber at this moment. I think we have grasped the most important of the Amendments and the issues. I remember that the ill-famed Labouchere Amendment was passed at, I think, one or two o'clock in the morning.

I should like permission to move that the House do adjourn, in the light of certain undertakings, or semi-undertakings. I should like to feel that the noble Lord, Lord Shepherd, could tell us that we could finish on Monday next, and also I should like to feel that there might be some reasonable hope that we should have the Report Stage at some later date, probably on a Friday. If those things are indeed possible, or even probable, it might be as well if we were to adjourn.

LORD SHEPHERD

I am quite sure the noble Lord is right to propose that the Committee stage should be adjourned. We have been at it for some considerable time and there must also be the thought that a number of our staff will be on duty early to-morrow morning in view of the Anniversary proceedings in Westminster Hall.

In regard to the second part of the Committee stage, I can tell the noble Earl that we shall be able to continue next Monday. I think it would be wrong for us to try to do it this week, because it would not be possible for all Members of the House to be aware that it was being brought on at an earlier date. As the noble Earl knows, the House is in charge of its own Business. If your Lordships wish to sit on a Friday to take the Report stage and Third Reading, I should not expect there to be any difficulty. However, I think we must try to find out whether there is support within the House for this, because, as I said earlier, I could not hold out any hope of Government time for this Bill during July. But if the noble Earl thinks he can muster sufficient support from his friends who have so far supported him on this Bill, I am quite sure that it would be possible to fix a Friday.

VISCOUNT GOSCHEN

I think the course which has been suggested by the noble Earl, Lord Arran, and the Government Chief Whip is the right one, and so far as we concerned on the Opposition Front Bench, we would agree with that situation.

House resumed.