Lords Sitting of 28 June 1965

Preamble
The House met at half past two of the clock, The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Wakefield

UNITED NATIONS' FINANCES
2.36 p.m.
LORD GRANTCHESTER: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government whether, as no recent accounts have been published and in view of a recent statement by the Secretary-General referring to a deficit of over 100 million dollars, they can give the current position in respect of the various banking accounts of the United Nations organisation; and, if any of these accounts are overdrawn, by whom and on what terms funds have been provided.]
THE PARLIAMENTARY UNDER-SECRETARY OF STATE FOR FOREIGN AFFAIRS (LORD WALSTON): My Lords, the Financial Report and Accounts of the United Nations for the year ended December 31, 1964, and the Report of the Board of Auditors will be published shortly. What the Secretary-General has termed the deficit, which he estimates at 108.4 million dollars, relates mainly to sums borrowed from various sources to discharge obligations and to bills rendered, or due to be rendered, for supplies and services to the United Nations. The United Nations has borrowed from the Working Capital Fund, on which no interest is payable, and from the Special Fund, at an interest rate of 4 per cent. In respect of bills which have not yet been paid, no borrowing has yet taken place. But further borrowing may still be required, depending upon the extent to which further contributions are paid by member States. The United Nations has no bank overdraft: it has in fact no provision in its regulations permitting it to arrange overdrafts.
LORD GRANTCHESTER: My Lords, I beg to thank the noble Lord for his reply.

GOVERNMENT INVESTMENTS IN NORTH AMERICA
2.38 p.m.
LORD ERROLL OF HALE: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government whether, when making changes in their portfolio of North American investments, they repatriate 25 per cent. of the proceeds of any sale, in the same way as private investors are now required to do; and if so, how much has so far been repatriated.]
LORD SHEPHERD: My Lords, the answer to both questions is in the negative.
LORD ERROLL OF HALE: My Lords, I thank the noble Lord for such a brief Answer, but is it not unfortunate that the Government should tell private investors to pursue one course of action which is unfavourable to them while not disciplining themselves to the same extent by making similar repatriations on the switching of their own portfolios?
LORD SHEPHERD: My Lords, I am rather disturbed that the noble Lord does not understand the purpose of the Government in requesting those private investors who sell or switch their non-sterling investment to repatriate 25 per cent. of the proceeds. This is being done in order to strengthen the gold and dollar reserves. The portfolio that is held by Her Majesty's Government is at all times available in support of the gold and dollar reserves. Therefore there is no necessity to return proceeds to this country if and when any of those shares are sold. May I stress that these shares held by Her Majesty's Government are at all times available for the support of gold and dollar reserves?
LORD ERROLL OF HALE: My Lords, would it not be desirable for Her Majesty's Government to carry out what they are expecting other people to do?
LORD SHEPHERD: My Lords, the noble Lord still does not understand the

667
purpose of asking private investors to return 25 per cent. when they sell or switch their shares. This is in order to support the gold and dollar reserves. The shares held by Her Majesty's Government are at all times available for the support of the gold and dollar reserves and there would be no point or purpose in returning those sums to this country.
LORD ERROLL OF HALE: My Lords, may I ask the noble Lord whether it is not the case that it would be impossible for them to realise the whole of those holdings at any time, and therefore would it not be very much more satisfactory to repatriate relatively small amounts from time to time as switches take place and so enable Her Majesty's Government to increase the gold and dollar reserves, as they are asking private shareholders to do?
LORD SHEPHERD: My Lords, the noble Lord must understand that these shares held by Her Majesty's Government can be used for loans where they can be used for collateral. And perhaps I may remind the noble Lord of what Mr. Macmillan said in 1956: that these dollar securities could be a substantial reinforcement to the reserves and he was prepared to use them for that purpose.
LORD BARNBY: My Lords, with regard to the Written Question to which the noble Lord replied on May 17 of this year, with reference to the net investment abroad under both private and official investment, could the noble Lord say what he expects will be the income from the proposed sales as against these foreign investments which he reported?
LORD SHEPHERD: My Lords, the Chancellor of the Exchequer, speaking in another place some time ago, said he would expect £50 million, and the present figures which are available would lead us to think that this would be close to the figure.

PRICES AND INCOMES
LORD SHEPHERD: My Lords, at a suitable moment after half-past three my noble friend Lord Champion will make a statement on the First Report of the National Board for Prices and Incomes.
OVERSEAS DEVELOPMENT AND SERVICE BILL
Brought from the Commons; read 1a, and to be printed.

ADMINISTRATION OF ESTATES (SMALL PAYMENTS) BILL
2.42 p.m.
Order of the Day for the Second Reading read.
VISCOUNT SAMUEL: My Lords, I beg to move that this Bill be now read a second time. This Bill was initiated in another place by Mr. Peter Mahon as a Private Member's Bill, and it gives me particular satisfaction to move its Second Reading in your Lordships' House. Having spent my working life as a Colonial civil servant helping to draft legislation, I now present a somewhat complex little Bill in your Lordships' House. I am not fully conversant with the legislative procedure in this House and I ask for your Lordships' forbearance if I err in any way.
This Bill is not controversial. Its main purpose is to raise the limit of small sums due to a deceased person which may be paid out without probate. Provision for such small payments without probate exists under a number of Acts since 1829. The limits at present are generally £100; in a few cases £200. Those limits were mostly fixed in the last century, and with the decline in the value of money £100 is now too low: the Bill proposes a new figure of £500. This figure of £500 is, I submit, not unreasonable. Out of the 28 enactments referred to in the first two parts of Schedule 1 to the Bill, half are dated prior to the First World War. Then the pound was worth five times more than it is to-day, so a fivefold increase in the maximum is, I submit, justifiable. It is also desirable to standardise all similar limits at £500. This new maximum is not compulsory. It only raises the limit of the discretion of the body concerned.
The Bill also tidies up one or two other matters. There is a long-standing distinction in certain Acts, for not very satisfactory reasons, between payments where a deceased left a will and where he did not. This distinction is abolished by the Bill. The Bill is designed to deal

669
comprehensively with all limits of this sort, whether they occur in the Statute Book or in subordinate legislation, by moving them up to £500. Hence the long Schedule to the Bill. But there is still a possibility that some Acts prescribing a lower limit have been overlooked. Hence the Bill includes power to deal with such cases by amending the limits later by Treasury Order.
Finally, the Bill gives power to the Treasury to raise the new figure of £500 by Order if in the passage of time the new limit becomes too low and an unreasonable hindrance to the administration of small estates. I do not think this latter provision is a great incursion into the rights of Parliament. The Treasury is not noted for allowing anyone greater freedom. Hence your Lordships should welcome the extension of the leash on which Britain's No. 1 watchdog is kept. The Treasury is unlikely to abuse these discretionary powers. In these circumstances, I commend this Bill to your Lordships. I beg to move.
Moved, That the Bill be now read 2a,—(Viscount Samuel.)
2.47 p.m.
THE EARL OF DUNDEE: My Lords, may I congratulate the noble Viscount on what I think is the first piece of legislation which he has introduced in the British Parliament? He has done so with every sign of experience, and he has explained the Bill with so much lucidity that I honestly believe I now understand everything that is in it. But I am not going to risk betraying any possible misunderstanding by adding anything to what he has said, because I am satisfied in any case that this is a good Bill and we are glad that your Lordships should give it a Second Reading.
2.48 p.m.
LORD HOBSON: My Lords, I, too, should like to offer my most sincere congratulations to the noble Viscount, Lord Samuel, on introducing this Bill. It had quite a friendly passage through the other place, and of course it is unopposed legislation, in that sense. It is not easy, of course, to get a Private Bill as far as this. Those who have tried their hand at it in the other place know that there are many hurdles to jump. Nevertheless, this Bill has been very successful and I
670
am sure that in your Lordships' House it will have an equally propitious passage. I think one feels constrained, without any attempt at flattery, to say that the noble Viscount, Lord Samuel, because of his academic, professorial duties, cannot be with us the whole time the House of Lords is sitting, but nevertheless when he does come here he is most assiduous in his duties, and if he finds time to introduce private measures of this sort we shall be only too happy, so far as the Government are concerned, to make time available.
I think it is incumbent upon me to say a few words from the point of view of Her Majesty's Government. I know that the Bill has what is termed the Parliamentary accolade in so far as it has received the approval of the Treasury, but we have not yet quite got to the stage where civil servants govern the country. They may be useful advisers; but we do know it is just as well, whatever the nature of a Private Member's Bill, to see that it has at least their sympathetic understanding. We are told by the noble Viscount that it is not only a question of sympathetic understanding; it is even commendation. It does look a complicated Bill. It contains seven clauses and a formidable number of Schedules. But the object, as the noble Viscount has said, is to raise the small sums due to a deceased person which may be paid or distributed without legal aid or formalities of probate or letters of administration. Those who have had vast experience in dealing with people in the lower income bracket know that it is often a great hardship when small sums of money are left and people have to meet quite heavy legal costs for the purpose of getting probate or letters of administration.
The money limit that the Bill seeks to amend is £100. It may be interesting to note that the limit was first set at that figure far back into the 19th century. Once the limit was based on £100 that figure tended to be followed in other similar legislation; so we have a wide variety of statutory provisions, as the House will see from the Schedules, which contain a limit of this sort. With the decline in the value of money, this figure of £100 has come to be thoroughly unrealistic, and indeed a positive hindrance. It can be a cause of distress to people. A relative has died leaving a small sum

671
to which they are entitled, but they cannot obtain it without expense and trouble in obtaining probate or letters of administration. Therefore, it seems to Her Majesty's Government right and reasonable that the conditions of to-day should be borne in mind, and that this limit should be increased to the more realistic figure of £500. That is what this Bill sets out to do.
If with changes in the value of money this limit in its turn becomes obsolete, there is power in the Bill for it to be raised again by Treasury Order, subject to Affirmative Resolution. I think it is important to bear that in mind. This gives both Houses complete power if alteration of the limit is sought.
The Bill also tidies up one or two related matters, and I should perhaps say a few words about them. There is a longstanding distinction, for no very satisfactory reason, in certain Acts between payments out with appropriate documents where the deceased left a will and where he did not. This distinction is abolished by this Bill. Certain requirements to produce an estate duty certificate before payment is made are also repealed. My Lords, this is a useful Bill of some social importance which has been warmly welcomed in another place, and I hope it will commend itself to your Lordships.
LORD BOOTHBY: My Lords, anything that receives the approval of the Treasury is in itself suspect. But on this occasion the noble Viscount, Lord Samuel, seems to have produced a splendid Bill, and I think we all ought to congratulate him on his efforts, because obviously, from the arguments that have been used, it is the right thing to do.
VISCOUNT SAMUEL: My Lords, I am most grateful to the noble Earl opposite, to the noble Lord, Lord Boothby, and to my noble friend the Minister, for the support given to this Bill.
On Question, Bill read 2a, and committed to a Committee of the Whole House.

BRITISH NATIONALITY BILL
2.53 p.m.
Order of the Day for the Second Reading read.
THE EARL OF LISTOWEL: My Lords, I beg to move that this Bill be now read a second time. As your Lordships are well aware, the law of nationality is an extremely complex subject, and I hope that I shall succeed in making the provisions of this little Bill clear to all your Lordships, in spite of the fact that it took me some time to make the provisions clear to myself. Its object is to remove a hardship and to remedy an injustice affecting an admittedly small class of people, the foreign wives of men whose legal status is that of "British subject without citizenship". I must confess that until I was asked to introduce this Bill into your Lordships' House I had no idea that such a class of persons existed, but I think your Lordships will agree that they are important, that their numbers are considerable, and that they deserve the most friendly consideration of your Lordships.
Under existing law, if a man who is a British subject and a citizen of the United Kingdom and Colonies marries a foreigner, his wife has the right, if she so wishes, to acquire the same national status as her husband. This, indeed, is what usually happens when a British citizen marries an alien. On the other hand, if a man who is a British subject without being a British or a Commonwealth citizen marries a foreigner, there is no provision in existing law that enables this woman, by reason of her marriage, to acquire the same national status as her husband. This injustice is put right by Clause 1 of the Bill, which would enable such a woman to be registered as a British subject. It is impossible to say exactly how many marriages will be affected by the proposed change in the law. We know that there are in the world to-day several hundred thousand—probably less than a million—British subjects without citizenship, and that the majority of these persons are at present living in India, Pakistan, Ceylon or South Africa. These are people who were connected with British India before India and Pakistan became independent in 1947, and who

673
have not subsequently become British citizens or citizens of either of those new Commonwealth countries.
Another class of persons included among these British subjects without citizenship are 78,000 citizens of the Republic of Ireland who have chosen to retain their British connection. These people were given the right, under the British Nationality Act, 1948, to claim the status of a British subject if they could satisfy the Secretary of State that they had some connection, such as descent or residence, with the United Kingdom. But if one of these persons marries a foreigner, his wife has no right to claim the same national status as her husband. This situation also is put right by Clause 1 of the Bill. I think I should also mention that the provisions of this Bill bring us into line with the spirit and intention of an international Convention, which we have ratified, on the Nationality of Married Women. There will therefore be no doubt at all, when this Bill has been passed, that we are fulfilling the spirit, as well as the letter, of our obligations under International Law.
May I refer briefly to the clauses of the Bill? I have already mentioned Clause 1. I would only point out that under this clause foreign widows of British subjects without citizenship will have the same rights as foreign wives. Clause 2 prescribes the conditions under which a woman who has become a British subject under the provisions of this Bill can subsequently become a citizen of the United Kingdom and Colonies. She can do so on exactly the same terms as any Commonwealth citizen—that is to say, by five years' residence in the United Kingdom.
Clause 3 provides that the Secretary of State can deprive a woman of her status as a British subject without citizenship if she has acquired this status by fraud. This is exactly the same provision as applies to British citizens. Clause 4 amends the British Nationality Act, 1964. This amendment will enable the Stateless child of a mother who is a British subject without citizenship to acquire citizenship of the United Kingdom and Colonies after three years' residence in the United Kingdom. The status of British subject without citizenship is not transmissible and therefore cannot be
674
passed on to the child, and I am sure your Lordships will agree that the child should not be left a Stateless person: it is obviously desirable to avoid the hardship imposed by Statelessness on children.
My Lords, I am glad to say that this is an uncontroversial Bill, and I hope that its passage will give peace of mind to some of the inhabitants of our Commonwealth and to their wives. In that knowledge, I commend the Bill to your Lordships, and beg to move that it be now read a second time.
Moved, That the Bill be now read 2a.—(The Earl of Listowel.)
2.59 p.m.
LORD NEWTON: My Lords, I do not know how much longer this afternoon the prevailing mood of amity is going to last. Certainly I do not wish to do anything to disturb it. Like his noble friend who introduced the last Bill, the noble Earl deserves our congratulations on producing this measure. As the noble Earl said, the British nationality laws are extremely complex, and I was relieved to hear him say that it took him some time to make clear to himself even this comparatively minor amendment which the Bill proposes, because it took me some little time in reading the Bill before I thought I understood exactly what it does.
It is a fairly complicated Bill to achieve something that is rather small, although very desirable. I do not think that that matters, because the noble Earl has explained to us most lucidly what it is all about; and I am quite certain that we shall all agree that we ought to put right something which is an anomaly. I appreciate that it is not possible to estimate exactly how many people are affected, but I presume that over the years it will be a declining number. Nevertheless, that does not make it any less desirable that we should put the anomaly right, and I hope that your Lordships will give the Bill a speedy passage.
THE JOINT PARLIAMENTARY UNDER-SECRETARY OF STATE, HOME OFFICE (LORD STONHAM): My Lords, on behalf of Her Majesty's Government I join with the noble Lord, Lord Newton, in expressing grateful thanks to my noble friend Lord Listowel for

675
sponsoring this Bill in your Lordships' House. It is an example of how very highly prized and valued is the status of British citizenship, and I hope that we shall always be able to realise that. Fortunately, my noble friend has given so clear an explanation of the purpose of the Bill that there is little left for me to add.
The class of people known in law as "British subjects without citizenship" are, it is true, not citizens of this country or of any other Commonwealth country, but they are British subjects. And it is only right that, if one of them marries a foreign woman, she should also have the right to acquire the status of a British subject if she so wishes. This is in accord not only with the law applying to foreign women who marry men who are citizens of the United Kingdom and Colonies, but also with the general trend of modern nationality legislation. The general principle is that a woman who marries a man of a nationality other than her own should be able, but not compelled, to acquire the same nationality status as her husband. This Bill applies that principle to the only section of our law where it has not so far operated. I am sure all noble Lords will support the wish of the noble Earl that this anomaly should be removed. The Bill is inevitably somewhat technical in its terms, and I would congratulate the noble Earl upon the clarity with which he has explained the purpose of its several provisions.
BARONESS SUMMERSKILL: My Lords, it would be inappropriate if a woman did not on this occasion intervene to say how surprised she is, and gratified too, to hear men promoting the interests of women. We have to-day heard men asking for one more anomaly in the nationality laws to be remedied, an anomaly which particularly affects women. On behalf of our sex and their
676
children, I can only say, "Thank you very much".
THE EARL OF LISTOWEL: My Lords, I should only like to say, "Thank you" to the two noble Lords and the noble Lady who have spoken for their support on this Bill. I assure the noble Lord, Lord Newton, that the number of these persons is declining because, of course, there will be no more British subjects without citizenship after those who acquire that status die. I suppose, hypothetically, that if a man who is a British subject without citizenship reaches the age of 80 and marries a foreign girl of 20, she acquires the status of British subject without citizenship, and in fact, this class of people will exist for longer than they otherwise would do. However, I cannot imagine that cases of that kind will be very numerous. I am most grateful to Lord Newton, speaking, as he was, for the Opposition, for supporting this Bill and making it clear that it is an uncontroversial measure. I am also grateful to my noble friend Lord Stonham for giving it the blessing of the Government, because otherwise it certainly would not get a passage through both Houses. I am very grateful to my noble friend Lady Summerskill for showing that the claim I made on behalf of her sex was not exaggerated.
BARONESS SUMMERSKILL: My Lords, may I say one word before the noble Earl concludes, on a very serious point, the question of the death-bed marriage? We have had to think about that before and—
SEVERAL NOBLE LORDS: Order, order!
BARONESS SUMMERSKILL:—therefore, it might be considered on Committee stage.
On Question, Bill read 2a, and committed to a Committee of the Whole House.

SEXUAL OFFENCES BILL [H.L.]
3.6 p.m.
Order of the Day for the House to be again in Committee read.
Moved, That the House do now resolve itself into Committee.—(The Earl of Arran.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD MERTHYR in the Chair.]
THE EARL OF ARRAN THE EARL OF ARRAN moved, after Clause 1, to insert the following new clause:
Premises resorted to for homosexual practices
". What would otherwise be held to be a brothel shall not be held by the Courts not to be a brothel merely because it is resorted to wholly or partly for homosexual practices."
The noble Earl said: Amendment No. 16 and the following Amendment, No. 17, seek to make quite clear in law the Wolfenden Committee's suggestions that they had no intention of countenancing
"any forms of behaviour approximating to the objectionable activities associated with female prostitution…"
The purpose of this Amendment is simple, and I hope will be acceptable to the Committee. It implements the last part of paragraph 76 of the Wolfenden Report, in which the Wolfenden Committee said that the word "brothel" should include premises used for homosexual practices as well as those used for heterosexual lewdness. It would be quite intolerable that male prostitution—if brothels were ever to exist, and I do not believe they will—should not be subject to the same penalties as female prostitution. The present law relating to brothels is, I am advised, contained in Sections 33 to 35 of the 1956 Sexual Offences Act. Section 33 penalises the keeping of a brothel; Section 34 makes it an offence for a landlord to let a room for use as a brothel; and Section 35 deals similarly with a tenant who permits premises to be used as a brothel.
It appears that the meaning of the word "brothel" is not defined in the 1956 Act, but I understand that the courts hold that the term applies to a place resorted to by persons of both sexes
678
for the purposes of prostitution. We are seeking by this Amendment to make it explicit that a place used for the purpose of prostitution will be treated in law as a brothel if the prostitution is homosexual in form, whether or not that place is also used for female prostitution. I hope that this most obviously desirable purpose may have your Lordships' approval.
LORD STONHAM: The noble Earl, Lord Arran, has made the purposes of his Amendment perfectly clear and has indicated that he seeks to implement the Wolfenden Committee's recommendation that the law should be amended so as to make it explicit that the word "brothel" includes premises used for homosexual practices as well as those used for heterosexual practices. Under the present law, as the noble Earl quite rightly said, "brothel" does not cover premises used exclusively for homosexual practices, although premises used for heterosexual prostitution to which homosexual prostitutes also resort, if there be such, will probably still come within the term "brothel". The point does not normally arise at present, since the keeper of a homosexual brothel would presumably be charged with aiding, abetting or procuring a homosexual offence, and the question whether he could be charged simply with brothel-keeping would not arise.
The Government would not wish to raise any objection in principle to the clarification of the law as proposed by the Wolfenden Committee and as the noble Earl hopes to embody in his Amendment. But it is quite clear—at least, I hope I shall make it quite clear to the noble Earl—that his purpose is not achieved by the proposed Amendment. The reason, if I may submit to him with respect, is that it makes the mistake of taking as its starting point the present definition of "brothel", and seeks to avoid the present restriction to heterosexual acts; whereas what is needed is an extension of the present definition—in other words, to start with the present definition of "brothel" and extend it so that it included homosexual practices. And that is not achieved by the Amendment which we are now considering. I would therefore suggest that, having regard to what I have said, the noble Earl might deem it advisable to

679
withdraw the present Amendment and produce one at a later stage which would achieve the purpose he has in mind.
THE EARL OF ARRAN: To cut this discussion short, if I may, with respect and with the approval of your Lordships, may I just say that I am most grateful to the noble Lord, Lord Stonham, for what he has said to us and for the constructive departmental attitude which he has shown towards our Amendment? It seemed to have his disapproval from the drafting, the technical, aspect and not as regards the principle. It was exactly the attitude that I hoped might be taken in our discussions when we are dealing with difficult questions of law. In this, and also, I fear, in subsequent Amendments, there may be a question of law which will need to be dealt with, and although—and I must stress this point very clearly—I have had the best possible legal advice from people whom I admire and respect in introducing a Private Member's Bill, I have naturally not had the benefit of the Parliamentary draftsmen.
I take the point of the noble Lord. I think that this Amendment is couched in negative rather than positive terms, and it should be rewritten. If your Lordships feel it is right that the same principle should apply to male brothels as applies to female brothels—and if there is any noble Lord who feels that is not right, let him say so—I am prepared to withdraw this Amendment, always on the assumption, of course, that others of your Lordships would not like to put it to the vote. I promise your Lordships that at the Report stage this clause will be reintroduced, and I hope in a form which will be as acceptable to the Home Department as it must surely be to your Lordships.
LORD STONHAM: May I just make it clear to your Lordships before the noble Earl withdraws this Amendment, if he intends to do so, that so far as the Government are concerned the question of approval or disapproval of these Amendments does not arise. He mentioned the word "disapproval". I explained when we started the Committee stage last Monday that our purpose—and I thought it was one of which your Lordships would approve when it arose—
680
was to explain where Amendments were defective and to be as helpful and constructive as we possibly could. I understand and agree that the noble Lord has had the best legal advice, but I think that the comments which I have made, and which I shall be making subsequently on other Amendments, ought to be the ones on which he should rely. But If at any time any noble Lord or noble Lady disagrees and wishes to seek the views of the Committee, of course that will be quite all right.
The discussions on all these Amendments are helpful to the Government in getting, as it were, the views of your Lordships on the principle which is put forward in the Amendments, but I wanted to make the position clear, in view of the noble Earl's use of the word "disapproval".
LORD BLYTON: Would the noble Lord tell me whether the Government are now supporting this Bill, or whether they are all against it?
LORD STONHAM: I had hoped to make that clear to my noble friend. I have said this at every stage, and I should have thought that what I have just said underlined the position—as it were, dotted the "i's" and crossed the "t's"—in order to explain quite precisely the Government's position. But I would say to my noble friend that the Government do not feel that the path of neutrality would be followed if we were obstructive in matters of this kind, or if we allowed the House to proceed on a certain course without pointing out legal and technical defects in Amendments, because that would be wasting the time of the House.
LORD BLYTON: Could the noble Lord tell me how that attitude can be taken up now, seeing that the House of Commons defeated this Bill on the First Reading there this year?
LORD STONHAM: I think that in saying that my noble friend is guilty of a slight inaccuracy, because I do not think that this Bill has ever been before another place. What happened was that leave to introduce a Bill was refused in another place. But even if an attempt had been made to introduce this Bill, or a somewhat similar Bill, in another place, I think it is usual for your Lordships'

681
House to follow its own course of action, particularly when the Bill had previously been introduced in this House.
LORD BOOTHBY: This is a Bill of enormous complexity, as I am sure the noble Lord, Lord Stonham, will agree, and I want to ask him one question, because if we had the answer I think it might save us a lot of time this afternoon. Without committing themselves on the principle of the Bill, which, for reasons of their own, Her Majesty's Government have refused to do, would they give some assistance to my noble friend Lord Arran if he wants to carry out a particular objective? Could they give him some assistance in the drafting of particular Amendments to the Bill to carry out particular objectives, which we could then reject or accept? I ask that because, I honestly think that a Bill of this complexity cannot be drafted entirely by a private individual.
LORD STONHAM: I answered this question on the first day of the Committee stage. I am endeavouring to assist the Committee now, in the answers that I give, and to advise those who are moving Amendments where they appear to us to be defective so that they can be amended. On the question of the assistance of Parliamentary draftsmen, for which the noble Lord, Lord Boothby, now asks, I repeat what I said previously—namely, that we will consider the whole position of this Bill when the Committee stage is completed. When that consideration has been completed, I shall be in a position to answer the noble Lord's request for assistance of the kind he mentions.
3.19 p.m.
THE EARL OF KILMUIR: May I say just this? I do not think that any of your Lordships who are present have any doubts as to my view on the Bill, or on the controversial points which have arisen. But it may help my noble friend Lord Arran, and also perhaps the noble Lord, Lord Stonham, to know that on the basis that the Bill is ultimately passed—though I hope it will not be—and on the basis that it does not contain the Amendments which I have desired to be made to it, I still think that, if there has to be a Bill, it ought to be made clear that male brothels are brought within the law. On that basis, the noble
682
Lord, Lord Stonham, can take it that, so far as I am concerned, I am prepared to support what I understand to be the principle of this Amendment, and to consider, in that sense, the ultimate form that may be brought before the House.
THE LORD ARCHBISHOP OF CANTERBURY: Before the noble Earl withdraws his Amendment, may I put it to him that the principle of his new clause is so very important that I think the opinion of the Committee, recorded in favour of it, would be very valuable? Would the noble Earl not still achieve the right end by adhering to his new clause and amending it or substituting another on the Report stage, rather than withdrawing it now and starting de novo?
LORD CONESFORD: May I say in answer to the most reverend Primate that we are not talking about approving the principle of this clause but about its aim? My impression is that approval of the aim of this clause is universal in this Committee and if it is clear to the noble Earl, Lord Arran, that everybody approves of the aim but, for the reasons that have been given by the Minister, that aim is not achieved by the words as they stand, then I think that my noble friend Lord Arran would be well advised to withdraw his Amendment and substitute an Amendment that more efficiently carries out the aim which I think is shared in every quarter.
LORD STONHAM: I should hope that that would be the course the Committee would follow. I would say at once that I have found the contributions of the noble and learned Earl, Lord Kilmuir, and the noble Lord, Lord Conesford, very helpful in this matter so far as my own sensing of the opinions of the Committee is concerned. I would say that we support the aim of the noble Earl, Lord Arran, on this particular Amendment: let me make that point quite clear. To the most reverend Primate I would say that if the Committee were to follow the course he suggests it would not necessarily have the result he desires. Having amended the Bill, further amendment to do what we want to do might be made a bit more difficult. Therefore, I hope that the first course which I suggested to the Committee will seem the better one, but I am entirely in the hands of the Committee in this respect.
LORD MERRIVALE: To some, this Bill is most distasteful. I should like to ask one question of the noble Lord who is the Government spokesman in this matter. If this Amendment is redrafted—in other words, if it is put in a different way to achieve the object which I believe to be in the mind of the noble Earl, Lord Arran—it would be possible to set up male brothels in Soho, for instance. I should have thought that having female brothels was quite sufficient. To have homosexuality practised in that way seems to me a ghastly thought.
LORD STONHAM: As I have pointed out, there is at present no law specifically prohibiting homosexual brothels and in that sense it might be said to be possible to set up male brothels in Soho. The aim of the noble Earl, Lord Arran, is to make it, if not impossible, very much more difficult and dangerous.
THE LORD BISHOP OF ST. ALBANS: May I say a word in general support of the principle of this Amendment? I was not present when your Lordships' House gave the Bill a Second Reading, and I should like to refer, not for the moment to the Wolfenden Report, which was presented to Parliament in September, 1957, but to a report produced in the spring of 1954 by the Church of England Moral Welfare Council, of which I was then chairman. This report commended for study an interim report by an independent group of Anglican clergymen and doctors, with legal advice, entitled, The Problem of Homosexuality. Subsequently, the report was presented to the Wolfenden Committee. This report was brought before the Church Assembly, and there is a letter in to-day's Times referring to this debate. The statement of a right reverend Prelate is quoted, when he referred to the overwhelming approval given in the Church Assembly. When I read that report, and remembering the debate in the Church Assembly, I felt that the word "overwhelming" was out of place. Nevertheless, the figures have been before Parliament, published in Hansard after the debate in another place in, I think, 1958.
In this letter, a reference is made to the Church Assembly debate. It was said—and I quote:
"As would be expected on an occasion and from a body of this kind, the debate was conducted on the footing primarily of pastoral
684
care for the individual rather than for the welfare of the body politic."
I took part in that debate and I think that in the minds of many of us there was concern for the body politic as well as pastoral care for the individual. In the past Bishops have been criticised for being too conservative and too unwilling to mitigate harsh laws or change the status quo. It is surprising that our present desire for reform and a more enlightened treatment of offenders brings us no less criticism.
The report entitled The Problem of Homosexuality emphasised our judgment that all homosexual acts are intrinsically sinful, but we believed that by making every male homosexual sin a criminal offence the State had rather departed from a principle which had otherwise implicitly governed modern legislation and public policy in regard to sexual behaviour—namely, that it is not the purpose of the law to safeguard private morality, nor to shield the mature citizen from temptation to do wrong. The proposals made by this independent group of clergymen and doctors for the reform of the law with respect to homosexual offences were accepted, in substance, by the Wolfenden Committee.
In the past, it was probably rare for a priest to encounter homosexuality and its problems in the course of his normal parochial ministry, but after the war inverts themselves turned to clergy for counsel in growing numbers, to clergy whom they had reason to know were equipped to deal with the causes and treatment of sex difficulties. In 1954 we saw the law about prostitutes administered so mechanically, and the fines and publicity accepted so lightly, that justice was brought into contempt. On the other hand, with homosexual offences the law seemed sometimes to reach the other extreme, and men paid the price of blackmail or even suicide to avoid conviction and a heavy prison sentence. I read and re-read the Wolfenden Report at the time. I continue to believe that its findings and recommendations are generally wise. I therefore want to support the principle of the Amendment moved by the noble Earl, Lord Arran.
THE EARL OF ARRAN: I find myself in difficulties. On the one hand, I do not wish to annoy the Committee,

685
and I get the impression, rightly or wrongly, that the Committee feels we should bring forward a better Amendment on Report stage. On the other hand, I do not wish in any way to lose support from the most reverend Primate.
THE LORD ARCHBISHOP OF CANTERBURY: May I save the noble Earl's time by interrupting? I did make a plea that he should not be hasty in departing from his guns, because I thought it very important that the Committee should assert its support for the aim of his Amendment; but if, as seems very clear, the Committee has abundantly asserted that in ways which the Committee can without going into the Lobbies, I do not for a moment want to press that advice on the noble Earl. My aim has been achieved by the eruption of the expressions of sentiment on all sides.
THE EARL OF ARRAN: I should like to thank the most reverend Primate for getting me out of my dilemma. Perhaps at this stage I might say how greatly I admire the courage of the most reverend Primate. For the Archbishop of Canterbury to say in this House the things he has said is to me a very fine and a very brave thing. I should like to say to him: Thank you very much. All the things he has said have been good and Christian. But that is irrelevant. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
House resumed.

PRICES AND INCOMES BOARD'S REPORT: ROAD HAULAGE RATES
3.31 p.m.
THE MINISTER WITHOUT PORTFOLIO (LORD CHAMPION): My Lords, with your Lordships' permission, I should like to make a Statement similar to that which my right honourable friend the First Secretary of State has just made in another place, about the first report from the National Board for Prices and Incomes. If I may, I will use his own words, which are as follows:
"The House will wish to know that the first report to be issued as by the National Board for Prices and Incomes is being published this afternoon, and
686
copies are available in the Vote Office. This is an interim report on road haulage rates, a case which I referred to the Board on May 6. The principal recommendation of the report is that the practice of general rate recommendations by the Road Haulage Association is not in the interests of the industry or its customers and should be abandoned; and that in consequence the latest recommendation for a general 5 per cent. increase, should be withdrawn, and in any case should not be accepted by the industry's customers. The report further recommends that it is for each haulier to judge, in the light of his own circumstances, the extent to which he can absorb increases in costs instead of passing them on to the customer. Other recommendations relate to the development of voluntary wage-negotiating machinery, to ways of achieving higher productivity and a number of other matters. I and my colleagues will be discussing the main recommendation with the Road Haulage Association tomorrow and the other recommendations in the report will be discussed with the Association and the trade unions by the responsible Government Departments.
"This first report by the Board is valuable and encouraging, not only for the substance of its recommendations which are, in my judgment, fully in line with the agreed principles on which the prices and incomes policy is based, but also because it clearly illustrates two points: first, that this is not a negative policy, designed merely to secure restraint, but is a constructive policy concerned to foster productivity, economic growth and general prosperity; second, that even in a complicated issue of this sort, it is possible for a detailed investigation to be carried out in a relatively short time. Both by the quality of its first report and by the speed with which it has been prepared, I think that the National Board for Prices and Incomes has launched itself into the public life of this country in a way which augurs well for the future."
My Lords, that is the end of the Statement. The report referred to is available now in the Printed Paper Office.
THE EARL OF DUNDEE: My Lords, I am grateful to the noble Lord for

687
repeating this Statement. On those parts of the report to which he has referred, dealing with future methods of wage negotiations and increased productivity, but which are not contained in the Statement just made, we obviously cannot comment until we have had an opportunity of reading the report. I am sure that the House will be glad to hear from the Statement that this is not a negative policy but a constructive one of economic growth, productivity and general prosperity. We can all agree with those words; but I am afraid that I could not possibly apply them to the actions that the Government have taken in putting up the petrol tax by 6d. a gallon and by heavily increasing the motor vehicle duty. I think your Lordships might be interested to know—even anxious to know—how far it is possible to go on putting up the petrol tax and the motor vehicle duty without raising road haulage charges.
In regard to the recommendation that the customers should not accept the proposed increase in haulage charges, does that mean that they should not sign new contracts involving any increases at all? Or does it mean merely that they should not agree to a general increase of 5 per cent. and should all make the best bargain they now can with the road hauliers with whom they seek to make contracts?
LORD CHAMPION: My Lords, as I rather expected, the noble Earl has reverted to petrol tax and actions taken by the Government which have had (this is admitted, and it comes out in the report) some effect, and which are bound to have had some effect, on prices and costs within this industry. Since May, 1964, wages have gone up by 5¼ per cent. and fuel by 2 per cent., while tax has added about 1½ per cent. This has made a total of, say, 9 per cent. During this same period, the Road Haulage Association rates increase recommendations have totalled 13 per cent.—a very considerable amount more than the 9 per cent. that I have mentioned.
On the point that the noble Earl made about the acceptance by the customers of these increases, the report makes it clear that this ought to be a matter for bargaining between the customer and the haulier; and that the customer should not accept, as he has been prone to do in recent years, the 5 per cent. increase
688
as though there were no possibility of avoiding it. In this I am sure the Board and the report are right, and I support them.
LORD BYERS: My Lords, may I, on behalf of my colleagues on these Benches, welcome the emphasis that has been placed on productivity and economic growth. We are convinced that such a policy has a far greater chance of success than one which is restrictive and goes in solely for wage restraint. The Board are to be congratulated on having dealt with this matter so expeditiously. May I ask the Minister whether they will deal just as expeditiously with the question of electricity charges?
LORD CHAMPION: My Lords, I cannot answer for that; but I think that this is a happy augury. In eight weeks the Board have dealt with a complicated industry, and I am rather hoping that they will be equally expeditious in dealing with some of the other major matters referred to.
LORD BOOTHBY: My Lords, may I ask the noble Lord, Lord Byers—
SEVERAL NOBLE LORDS: No.
LORD BOOTHBY: Am I not allowed to ask him?
SEVERAL NOBLE LORDS: No.
LORD BOOTHBY: In that case, my Lords, I will say nothing.
LORD BYERS: My Lords, would the noble Lord ask the noble Lord, Lord Boothby, to fasten his seat belt?

SEXUAL OFFENCES BILL [H.L.]
3.39 p.m.
House again in Committee.
THE EARL OF ARRAN THE EARL OF ARRAN moved, after Clause 1, to insert the following new clause:
Person living on earnings of prostitution
". It shall be an offence for a person knowingly to derive financial advantage from inducing the homosexual prostitution of another person."
The noble Earl said: The purpose of this Amendment is to strike four-square at the pimp. It has already been decided by the Committee that, just as it is impracticable to make female prostitution illegal,

689
however much we should like to do so, it is equally impracticable in the case of male prostitutes. I am sure that it will be the wish of the Committee that it should be an offence for a person knowingly to derive financial advantage from inducing the homosexual practices of another person.
This conception, I am advised, is not new. Section 28 of the 1956 Sexual Offences Act makes it an offence to:
"cause or encourage the prostitution of …a girl under the age of sixteen …".
There is also what is to lawyers the better-known provision in Section 30 making it an offence for a man:
"knowingly to live wholly or in part on the earnings of prostitution".
So far as I am advised, there have been no proceedings in respect of homosexual prostitution under Section 30 of the 1956 Act. It may well be that the wording of subsection (2) of that section, which refers to "her" prostitution, would make such proceedings impossible. We felt, therefore that a new provision should be made, designed specifically to cover homosexual prostitution.
We have had particularly in mind that the concept of living on the earnings of prostitution may well not be wide enough to deal with all those persons who knowingly derive financial advantage from inducing the homosexual prostitution of others. Let me therefore seek in simple language to justify the wording we suggest. First, "knowingly" is a word which appears in Section 30 of the 1956 Act. It is clearly right that knowledge should be an essential element. Secondly,
"to derive financial advantage"
is deliberately wider than living
"wholly or in part on the earnings of prostitution".
Otherwise it would not cover all the mischief at which the provision is aimed—namely, introducing a client to a prostitute in order to benefit the person making the introduction. The proposal we are making to the Committee is, in our view, adequate to achieve what is desired by the Wolfenden Committee, that the law should not countenance anything which approximates to living on immoral earnings.
3.43 p.m.
LORD STONHAM: I do not think there can be any noble Lord in the Com
690
mittee who would be unwilling to make it an offence for a person knowingly to derive financial advantage from inducing homosexual prostitution by another person, which is the principle advocated by the noble Earl, Lord Arran, and which is wholly in line with the Wolfenden recommendation that the law relating to living, on the earnings of prostitution should be made to apply, so far as may be practicable, to the earnings of male prostitutes as it does to the earnings of female prostitutes. The offence concerning the females, to which the noble Earl referred, and he quoted Section 30 of the Sexual Offences Act, 1956, is for
"a man knowingly to live wholly or in part on the earnings of prostitution".
The noble Earl said that his choice of other words for his Amendment was designed to widen the effect. In our view, however, it has the opposite result. We are not clear why the Amendment uses a different form of words. Indeed, if I may say so with respect to the noble Earl we are not clear what "inducing homosexual prostitution" means. At any rate, it seems to us to be narrower than the Section 30 offence because it confines the proposed offence to the person who actually induces the homosexual prostitution. It does not appear to cover the case of a man who derives financial advantage from the acts of others in inducing the prostitution.
I thought it might be possible that what the noble Earl had in mind was that, whereas the present offence was designed to protect the woman prostitute from a bullying "ponce", the Amendment seeks simply to prevent the organising of homosexual prostitution for gain. If that is so, the Amendment is unsatisfactory, in our view, first, because it may be necessary to prove that a man not merely committed a single homosexual act for payment but actually became a homosexual prostitute. Secondly, the Amendment makes no provision for a maximum penalty or the mode of trial. The present offence, as the noble Earl will be aware, of living on immoral earnings, is triable on indictment or summarily. The maximum term of imprisonment is seven years on indictment, and six months on summary trial.
It is inconceivable that anyone could disagree with the purpose which the

691
noble Earl has in mind, but it has been my unfortunate duty to have to say that he does not achieve his purpose by this Amendment. If he will carefully study what I have said, I think he will be able to frame another Amendment, starting from a different point—I suggest starting from the definition in the 1956 Act—which would achieve his purpose; and we could have a revised version of the Amendment at a later stage in our discussions on the Bill.
THE EARL OF ARRAN: Once again the noble Lord has been most helpful. Once again we appear to have got it wrong. We seem to be only in technical trouble, but it is severe technical trouble. I can assure noble Lords that the last thing we intended was to try to narrow the scope. We are trying to widen it. From what I am told—I am no lawyer—it appears that we have got it wrong. Some of the reasons adduced by the noble Lord were no doubt excellent, but I am afraid they were above my entirely non-legal head. If it is thought that this clause could be presented in a better and more acceptable form from the legal point of view and from the departmental point of view—I must make the point that it has nothing to do with the Government but from a departmental point of view—we will certainly try to do it.
As I have said before, we are very much on our own in these matters and our intention, our dedicated intention, is to produce a system of legislation which will have general support and be acceptable to all, except those who are opposed to the principle of homosexual law reform. If it is your Lordships' wish, I will gladly withdraw the Amendment, on the understanding—as I believe it to be—that your Lordships are generally in favour of the principle that has been enunciated, and bring it forward at a later stage.
Amendment, by leave, withdrawn.
3.49 p.m.
BARONESS WOOTTON OF ABINGER BARONESS WOOTTON OF ABINGER moved, after Clause 1, to insert the following new clause:
Amendment of Schedule 2 to Sexual Offences Act 1956
"—(1) Notwithstanding the provisions of section 25 (Right to claim trial by jury for certain summary offences) of the Magistrates' Courts Act 1952 any person charged under
692
section 32 of the Sexual Offences Act 1956 with persistently soliciting or importuning in a public place for immoral purposes shall be entitled to claim trial on indictment.
(2) Nothwithstanding the provisions of the First Schedule of the Magistrates' Courts Act 1952, any person charged under Section 13 (Indecency between men) of the Sexual Offences Act 1956 with an act of gross indecency may be tried summarily if he so wishes."
The noble Baroness said: The two parts of this Amendment may appear to move in opposite senses. The Amendment deals with the right to trial either by summary procedure or on indictment. The first half of the Amendment gives the right to claim trial on indictment to a person charged with persistently soliciting and importuning in a public place. The second half of the Amendment would, conversely, give the right to a person charged with gross indecency to be tried by summary procedure, if he so wished.
The effect of the two parts of the Amendment would be to give the same rights in the two charges of importuning and of gross indecency. In each case the accused person would have the right to claim trial by indictment or by the summary procedure as he wished. Summary trial is quick, relatively inexpensive, and attracts less publicity. A defendant may prefer this in certain cases. Trial on indictment, on the other hand, means trial by jury, and it may well be that in cases of some difficulty, involving grave issues, defendants might wish the opportunity to be tried before a jury. In the case of these two particular offences, it is usual in an offence such as importuning, which carries now a maximum penalty of two years' imprisonment—it is usual for any offence which carries more than three months' maximum to have the right of trial on indictment—for defendants to claim trial on indictment. These cases are often difficult to prove and the accused person may prefer to go before a jury.
In the opposite case of gross indecency, the option which the Amendment would give is of summary trial. I would remind your Lordships that this offence has only been an offence since 1885, and it is a fact that although all cases of gross indecency have to go for trial on indictment the actual penalties imposed, as the Wolfenden Committee found, are

693
in the vast majority of cases not greater than those that could be imposed by a magistrates' court. In 86 per cent. of the cases that went for trial and which came to the knowledge of the Wolfenden Committee the penalty imposed was within the powers of the magistrates' court. Therefore one may well argue that these cases could equally well have been dealt with by the magistrates' courts.
It is a trend of the times that more and more indictable cases should be dealt with by summary procedure. We have now reached the stage where as many as 80 per cent. of indictable cases are dealt with summarily, and the Criminal Justice Act, 1962, has recently extended the power of the courts of summary jurisdiction to deal with indictable cases, adding in particular the cases of shopbrcaking and certain quite serious forgeries.
The anomalies of the present situation so far as gross indecency is concerned are still further enhanced by the fact that in many areas there are by-law offences dealing with various kinds of nuisances, and many acts which might be charged as acts of gross indecency are dealt with in fact as lesser offences under the by-laws. For the by-law offence, only a small fine can be imposed, usually of the order of £5. Therefore we are faced with the position that a man may be charged with gross indecency and obliged to go for trial on indictment and be liable to a penalty of two years' imprisonment, or the lesser charge may be brought, where there is a by-law, and he may be liable to only a small fine for what is practically the same act. Therefore I suggest that these two Amendments together put the defendants on charges of persistent importuning or gross indecency in a parallel position with other persons charged with indictable offences which may be tried summarily or, at the option of the accused, may be tried on indictment. I beg to move.
Amendment moved—
After Clause 1, insert the said new clause.—(Baroness Wootton of Abinger.)
3.54 p.m.
LORD STONHAM: As always, my noble friend has argued her case with great cogency and out of her considerable knowledge. I cannot imagine that anyone would dispute the justice of the case
694
which she has put forward. Certainly, speaking on behalf of the Government, I do not object in any way to what she has said on the principle of the Amendment by which she seeks to implement the recommendation in paragraph 123 of the Wolfenden Committee's Report, that male persons charged with importuning for immoral purposes be entitled to claim trial by jury and, in paragraph 114, that the offence of gross indecency between male persons be made triable summarily with the consent of the accused.
But if your Lordships agree with my noble friend, I am afraid that the drafting of the Amendment needs some tidying up, so that the language fits in with the general provisions of the Magistrates' Courts Act, 1952, about the mode of trial. I assume that by the words "may be tried summarily" in the Amendment, it is intended, as the Wolfenden Report clearly envisaged, that the offence, like other indictable offences such as larceny, is actually tried summarily where the accused consents and the magistrates do not think that the offence is so serious as to require trial on indictment; but the Amendment does not appear to us to make this quite clear. I submit that there should be no difficulty about it, if gross indecency were added to the offences listed in the First Schedule to the Magistrates' Courts Act, 1952. This would remove the main defect of the present Amendment, providing we also made consequential Amendments to the Second Schedule to the Sexual Offences Act, 1956.
Those two alterations would have to be made, otherwise we should leave ourselves, first of all, with obscurity, and secondly, with some of the consequences of my noble friend's proposal not cleared up. I must leave it with my noble friend and your Lordships as to whether the better course would be to withdraw the Amendment and come back again or to accept the Amendment and amend it afterwards, though, if we take the second course, it is going to be rather complicated.
LORD BOOTHBY: We have now had three successive Amendments which have had to be withdrawn because, according to Her Majesty's Government, they do not give effect to the intentions of the movers, intentions with which the entire Committee agree. If we are to have

695
this Bill, then we are in favour of approving the Amendments moved this afternoon. Again I would suggest that it is important that the noble Earl, Lord Arran, should get in touch with the Parliamentary draftsmen. It does not commit the Government in principle in any way. It does not commit the Government to approval of the Bill as a whole. But it would make sense of the whole business. Let us face it: up to now it has been a complete waste of time.
LORD STONHAM: I hardly think it has been a complete waste of time for noble Lords and my noble friend Lady Wootton of Abinger to move their Amendments, express their reasons, have the principles approved and then have certain difficulties pointed out. It is not the responsibility of Her Majesty's Government to "vet" Amendments. It would be regarded as insolence and interference if we altered Amendments before they were moved, which apparently would be the procedure which the noble Lord, Lord Boothby, has suggested. I have made our position perfectly clear and noble Lords who have moved Amendments also know the position in this matter. I think that the Committee will understand if I ask that I should be pressed no more at this stage.
LORD BOOTHBY: All right.
BARONESS WOOTTON OF ABINGER: I am obliged to my noble friend Lord Stonham for making clear that no objection, in principle, is seen to this Amendment, and I am grateful to your Lordships in that no objection to this Wolfenden recommendation has been raised in respect of this Amendment. I appreciate the point that has been put by my noble friend Lord Stonham, that it would be necessary, in order to give full effect to this proposal, to add the offence of gross indecency to Section 25 of the Magistrates' Courts Act, 1952, and that there would be consequential amendments in the Second Schedule. I should have thought that it would be possible to deal with this by an additional Amendment at a later stage which would clarify this particular point and would make the necessary amendment in the Schedule to the Magistrates' Courts Act—
LORD STONHAM: I think my noble friend referred to Section 25 of the
696
Magistrates' Courts Act, 1952. What I said referred to the First Schedule to the Act.
BARONESS WOOTTON OF ABINGER: I am obliged to my noble friend for the correction. Would it not be possible at a later stage to put down an additional Amendment, adding a further clause to make these alterations? I wonder whether my noble friend Lord Stonham could enlighten me on this point.
LORD STONHAM: I would not say it would be impossible, by any means, but I think it would be a little more difficult.
BARONESS WOOTTON OF ABINGER: In those circumstances, it might be as well if we faced a little more difficulty. The principle that is involved in this Amendment is one that I feel to be of great importance, and it is clearly one which, if silence means consent, has been endorsed by the Committee. I very much hope, therefore, that we may have this Amendment accepted.
On Question, Amendment agreed to.
4.2 p.m.
BARONESS WOOTTON OF ABINGER BARONESS WOOTTON OF ABINGER moved, after Clause 1, to insert the following new clause
Procurement or conspiracy
". Save as provided by Section (Persons living on earnings of prostitution) of this Act it shall not be an offence to procure or conspire to commit a homosexual act which by virtue of this Act is not itself an offence."
The noble Baroness said: I have been asked to move this Amendment on behalf of my noble friend Lord Arran. The Amendment is designed to secure that it shall not be an offence to procure or to conspire to commit a homosexual act when that act itself is not an offence. This is one of the very few Amendments to this Bill which does not give effect to any recommendation of the Wolfenden Committee. The reason for that is, I think, obvious. It is that the Wolfenden Committee presented their Report in 1957, and it was not until 1961 that our attention was called, by what has come to be known as the Ladies' Directory case, to the risk that conspiring to commit an act which is not in itself illegal may prove to be an offence. In the opinion in that case, the noble and learned

697
Viscount, Lord Simonds, stated unequivocally that
"there remains in the courts a residual power to conserve not only the safety, but also the moral welfare of the State".
The Committee will remember that in that case the defendant was actually convicted of conspiracy to corrupt public morals.
It may well be that this danger is imaginary, but there are some reasons to suppose that so long as this wide power is held to remain in the courts to protect our moral welfare, even where that moral welfare has not been defined by Act of Parliament, we run some risk of the quite anomalous situation, indeed, the absurd situation, that for two persons to get together and agree to commit an act which is not illegal might prove to be an offence as a conspiracy to corrupt public morals. It is to make it clear that if the act itself is no longer an offence, then it shall not be an offence for two or more people to get together and agree to perform it, that this Amendment is proposed to be included in the Bill. I beg to move.
Amendment moved—
After Clause 1, insert said new clause.—(Baroness Wootton of Abinger.)
LORD STONHAM: On this occasion, in part at least, my noble friend is going against a recommendation of the Wolfenden Committee, because in paragraph 115 they recommend that it should continue to be an offence, punishable with a maximum of two years' imprisonment,
"for a third party to procure or to attempt to procure an act of gross indecency between male persons, whether or not the act to be procured constitutes a criminal offence ".
Under this Amendment, if it were accepted, it would not be an offence for Mr. A. to procure an act of gross indecency between Mr. B. and Mr. C. unless there was financial advantage and prostitution which came within the orbit of Amendment No. 17, which the noble Earl, Lord Arran, withdrew a short while ago. The Wolfenden Committee were anxious that there should be no exploitatation of the weaknesses of others, and that this should continue to be an offence under Section 13 of the Sexual Offences Act, 1956. For this reason we feel that the part of the Amendment relating to procuring (and so far, as I am sure my
698
noble friend will appreciate, I am only speaking about the first part of the Amendment, and the word "procure") should not be accepted and would be undesirable.
My noble friend also has in her Amendment the question of conspiracy to commit a homosexual act which, by virtue of this Bill, is not itself an offence. It appears doubtful to us whether the acts of conspiracy to which the Amendment applies would be offences, anyway, since the act itself would not be an offence. But I must agree and emphasise that I am not in a position to say that with absolute certainty. It is a point which would require much careful and close examination and study. On the Amendment as a whole, as it stands, the Government feel that it is one which should not be accepted.
4.9 p.m.
THE EARL OF KILMUIR: I hope that the noble Lady and my noble friend Lord Arran will not pursue this Amendment at this time. The noble Lord, Lord Stonham, has given weighty reasons for at least further consideration, and I think that to press an Amendment, which, as Lord Stonham has said, goes beyond Wolfenden, would, for that reason alone, be unfortunate. Speaking for myself—and I hope that this may appeal to the noble Lady—I should like to see consideration of this Amendment postponed until we have seen what happens on Amendments Nos. 16 and 17, which we have been unable to deal with this afternoon; that is, the form with regard to male brothels, and with regard to living on the earnings of prostitution. Because of what Lord Stonham has said (I do not want to put the whole burden on the noble Lord, but it is important to have the Government's view and the Home Office view on this point), and because of the views I hold, I feel that your Lordships would be wrong to press this matter to-day. It is essentially one that we should reconsider, and the noble Baroness and my noble friend can then bring it forward on Report stage in the form which they think is right.
LORD KENNET: May I interject on one point of distinction between "procure" and "conspire", though not with the intention of asking the originators of this Amendment to persevere with it? I

699
am sure they will be well advised to withdraw it and to bring in on Report stage something with finer distinctions in it. It is true that the Amendment goes beyond the Wolfenden recommendations, so far as the word "procure" is concerned, but it is the word "conspire" which exercises me. For one thing, the Wolfenden Committee reported before the Ladies' Directory case, and they did not have that precedent before them in their consideration of what ought to be done. In that case, the Shaw case, this House, sitting in its Judicial capacity, considered the question: Is it or is it not possible that conspiring to do something which is not in itself an offence should be an offence? There was a weightily argued minority opinion which said: "No, this is not possible: if an action is not criminal, conspiring or agreeing to commit it cannot be criminal either." But the majority opinion was quite clear: that it can be an offence to conspire to commit a legal action.
The Shaw case arose in a closely related field, that of sexual morals. It seems to me that, in drafting legislation bearing on private morality, and particularly sexual morality, Parliament is bound to ask itself from now on, ever since the Shaw case, which of three alternatives it wishes to adopt in this matter of conspiracy. If an action is legal, a Statute dealing with that action may declare that a consipiracy to commit the action is also legal, or it may declare that conspiracy to commit the action, notwithstanding the legality of the proposed action, is illegal; or it may say nothing whatever about it, and leave it to Common Law.
What many people think at the moment is that, since the Shaw case, if the third alternative is adopted and nothing whatever is said, and the matter is left to the courts to decide on points of fact, it may be that a certain departure from the intentions of Parliament will be introduced by a court's finding that an illegal conspiracy has taken place, whereas to the man in the street it would look simply like agreement to commit a legal action. My own belief is that in this case, when the Bill has been further considered on Report stage, there should be an Amendment providing that conspiracy to commit the
700
actions now being considered shall not be an offence, any more than the actions themselves. I do not believe this is something one should hold in the case of every Bill about private morality; I can think of other cases, without going as far as restraint of trade, where agreeing to do something which is legal may desirably be held to be illegal. But in the case we are now considering I would urge the introducers of the Amendment to produce a second edition of it that will avoid the word "procurement," concentrate on the word "conspiracy", define what conspiracy is, and state that, in the context of this Bill, if an action is legal, then conspiracy to commit it is also legal.
LORD BOOTHBY: As a strong supporter of the Wolfenden Committee Report, I entirely agree with the observations made by my noble and learned friend Lord Kilmuir. I think it would be wise—and the noble Lord, Lord Kennet, also seems to support this view—to withdraw this Amendment, especially as we do not yet know the final form to be taken by Amendments Nos. 16 and 17, which are very important and have a great bearing on this point. I therefore think that this Amendment ought to be withdrawn in the interests of the Bill as a whole, which I am anxious to see go through. In addition, I think I should remind your Lordships that this particular Amendment goes beyond the recommendations of the Wolfenden Committee.
THE EARL OF ARRAN: Before the noble Baroness makes up her mind, may I ask the noble Lord, Lord Stonham, this question? If the words "to procure or" were to be omitted, so that the Bill would read:
"Save as provided by section … of this Act it shall not be an offence to conspire to commit a homosexual act which by virtue of this Act is not itself an offence "
would that meet the noble Lord's point?
LORD STONHAM: Certainly it would remove the objections which I had to "procure", to that part of the Amendment. But I cannot be taken as saying that it would then be a sound Amendment from the legal point of view, because I said that this question of whether conspiracy would arise when the act itself was a legal act, would have to be further investigated before I could give an authoritative assurance.
LORD CONESFORD: I should like to point out that very difficult questions of law would be raised, if it were proposed wholly to sweep aside the possibility of a prosecution for a conspiracy to corrupt public morals. I do not know whether anything so wide is proposed by the framers of this Amendment or any Amendment that may be put forward in its place; nor do I wish to say what I imagine would be the view of the Committee upon it. But it raises very much wider questions than have so far been debated. This matter has not been considered either by the Wolfenden or, indeed, by any other Committee. I think there may be many noble Lords in different sections of the Committee who desire the Wolfenden reforms. But I very much doubt whether an Amendment providing that a conspiracy to promote the conduct which the Wolfenden Committee would make non-criminal—a conspiracy to promote such conduct and to give special facilities for it—would have the support even of those noble Lords who are in favour of the Wolfenden recommendations. I think, therefore, that noble Lords would be well advised not only to withdraw the present Amendment, but also to consider very carefully what they wish to put forward on the Report stage.
BARONESS WOOTTON OF ABINGER: In reply to the noble Lord, Lord Conesford, I would say that this Amendment certainly does not propose to sweep aside the possibility that a conspiracy to corrupt public morals would be an offence. All it does is to narrow the scope of that doctrine in relation to a particular act which the Bill would make no longer illegal. I am interested to learn from my noble friend Lord Stonham that he is still in doubt as to whether a conspiracy between two persons to do a thing which is in itself perfectly legal—that is, here, committing a homosexual act—would or would not be an offence. That seems rather a strong argument for making it perfectly clear in the Bill that it is not to be an offence.
I am, however, aware that there are two lees to this Amendment. There is first of all the question of conspiracy, and secondly the question of procuring, which is rather different. I can see that there may be difficulties about procuring which are greater than those relating to
702
conspiracy. Therefore I shall be willing, to withdraw this Amendment, in the hope that at a later stage we shall be able to put forward an Amendment dealing specifically with the doctrine of conspiracy solely in relation to homosexual acts.
Amendment, by leave, withdrawn.
4.21 p.m.
THE EARL OF ARRAN THE EARL OF ARRAN moved, after Clause 1, to insert the following new clause
Interpretation
". For the purposes of this Act
'Adult' means a person who has attained the age of 21 years;
'In private ' means in a place which is not a public place;
'A public place' means any highway, public park 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."
The noble Earl said: I want to make it clear that in moving this Amendment I am naturally not seeking in any way to modify the earlier decision of the House in Committee. We have agreed that a homosexual act carried out with a third party present cannot be deemed to be committed in private. But we have in the most literal sense not covered the ground. It is largely now a question of geography. If two men were to go into a wood and there misconduct themselves, no one else being present, in the light of the noble and learned Viscount's Amendment could they be charged with an offence on the grounds that this was not a private place?
It is because of this difficulty that we have been eager to define "a private place". "Private" being an exclusive word, the only way in which it can be defined is to define what a "public place" is, and this we have attempted to do. In our view it is desirable that there should be a reasonable degree of certainty about this matter. We are dealing with a criminal law, and I understand it has been said over and over again that penal provisions should be clear. If this Amendment is accepted, the law will be tolerably clear, because it will be illegal to commit a homosexual act in a public place as defined by this

703
clause, and, of course, in private where more than two persons are present. If we do not define a "public place" there may well be confusion and doubt.
In fact we are not unduly perturbed at the difficulty of defining a "public place" because there are a number of precedents which we were able to consult. The Children and Young Persons Act, 1933, the Prevention of Crime Act, 1953, and the Public Order Act, 1936, all contain definitions of a public place. We have adopted the most comprehensive of these, namely, Section 9 of the Public Order Act, 1936, but we have made two additions. First, we have referred specifically to "any public lavatory or cubicle therein", and secondly, we have referred to those portions of a building to which the public have a right of access, in addition to any open space. In its proposed form this definition of a public place seems to us to be fully comprehensive, because it is linked to the right of access by the general public, whether by payment or not. This is clear in all three of the Acts I have previously mentioned. Therefore, in my submission it is difficult to see how there can be any real criticism of this definition or, more important, of our basic purpose in putting it forward.
Amendment moved—
After Clause 1, insert the said new clause.—(The Earl of Arran.)
LORD STONHAM: I am sure we all agree with the noble Earl, Lord Arran, that there can be no criticism of his basic purpose in putting forward this Amendment, but I have some observations to make on it. Obviously, when terms are used in a Bill it is essential to say exactly what is meant by them, so that the law can be correctly interpreted. I am, however, a little puzzled to understand why it has been considered necessary to define "adult", because the term "adult" is not used anywhere in the Bill or the proposed Amendments, and, as I understand the position, it is not customary to define words which are not used in the Bill. To that extent it would seem to be unnecessary.
I do not think I need say much about the definition of the words "in private". The noble Earl will recall that the Wolfenden Committee did not define what it
704
meant by "in private", and that Committee made it clear that it was not its intention to provide a legal definition. The Wolfenden Report said:
"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, but where there is no possibility of public offence of this nature it becomes a matter of the private responsibility of the persons concerned and as such, in our opinion, is outside the proper purview of the criminal law."
The noble Earl has sought to define a public place. He has based his definition on other Acts of Parliament, and has usefully made additions to those definitions. Indeed, the Government feel that there might be a considerable advantage in a full statutory definition, if we could agree on a formula—and "there's the rub". I hope we shall have some views expressed by your Lordships on this particular point, because they would indeed be most useful. I might perhaps start the ball rolling by making one or two criticisms of the noble Earl's definition.
First of all, I would ask, under this definition would homosexual acts which are committed in private but are readily obvious from a public place cease to be offences? Again, on right of access, is the noble Earl sure that right of access is not too restrictive in a way which would place an unnecessary burden on the prosecution? There may be places to which the general public is freely admitted but where a right of access does not exist in law, or would be difficult to prove. On the one hand, it is presumably not the intention of the noble Earl to extend the definition so as to bring in an hotel bedroom, to which access is gained on payment.
I feel that if these and other points which may be in your Lordships' minds could be discussed, we could get a clear indication of what your Lordships feel about this matter. It might then be possible to consider whether it was both possible and desirable to arrive at a satisfactory definition which could be incorporated in the Bill. However, so far as the present Amendment is concerned it

705
is unsatisfactory, and I hope the noble Earl will take a course which is now perhaps becoming all too familiar to him.
VISCOUNT DILHORNE: In moving this new clause the noble Earl pointed out that it really was not inconsistent or in conflict with the Amendment which I moved and which was accepted by the Committee. I agree with him, but I think we should be under no illusions at all that, despite my noble friend's valiant effort, the definition he has inserted in no way complies with the Wolfenden Report and in no way meets the criteria there laid down. The noble Lord, Lord Stonham, has reminded the Committee of what the Wolfenden Committee recommended in its Report. It suggested that these acts should be punishable if committed in circumstances which outraged public decency. I imagine that, without attempting to define what is meant by "private", one might find a form of words for insertion in the Statute which applied that test; but it would not be a definition of "privacy".
As the clause drawn by the noble Earl, Lord Arran, stands, it means that if someone going along a highway parks his car on the verge of the highway, which is part of the highway and a part to which the general public have access, and then goes through a gate into a field, he may be in full view of the people on the highway, or any other public place, but he would be able to commit some of these acts, or indeed any of these acts, with complete impunity. I am sure that this is not what the noble Earl desires, but as the clause is it is the case; persons accused of this offence could say, "Well, in fact we were not in a public place as defined by Lord Arran in his Amendment; we were in a place to which there was not a general public right of access, or a place to which there was a limited right of access," or some other argument of that sort as to whether the actual place on which this conduct took place was a public place as there defined.
Therefore, I do not think (I will not take up time on this) that this Amendment, although a praiseworthy attempt—Beta-minus, perhaps, or something like that—would suffice for inclusion in the Statute. I would therefore ask my noble friend to consider withdrawing this Amendment now and to consider two possibilities. One is—and I think myself
706
there is a lot to be said for it—not to seek to define what is meant by "in private", because I doubt very much indeed whether we shall get a satisfactory definition of those words. It is much easier to say what it does not mean—indeed, the Amendment that I moved last time on the Committee stage was an attempt to say that it did not mean certain things—to have a provision about "n private" without defining the words "in private" any more, and then go on to seek in addition to that to insert some language which carries out the intent of Wolfenden in paragraph 64 but which under no stretch of language can be interpreted as a definition of the words "in private". I put forward that suggestion to my noble friend in an endeavour to be helpful. I do not think this new clause will suffice to meet the recommendations of Wolfenden, or indeed. I should have thought, to meet the desires of the right reverend Prelates who are here in such full force and are so keen to see the recommendations of Wolfenden carried out. I commend those suggestions to my noble friend and I hope he will reflect upon them.
LORD BOOTHBY: I interject for the last time. I hope the noble and learned Viscount will not be dismayed or upset when I tell him that I am in total agreement with him. I think that this should be left as wide as possible on the grounds of Wolfenden—keep it as wide as possible and let the interpretation be done by the courts. I think certain words should be added to the words "private" or "public", as the noble and learned Viscount has suggested, but I would keep it as wide as possible and not attempt to define it with any exactitude, but leave it to the courts to do the interpretation.
VISCOUNT ST. DAVIDS: Throughout this Bill I have been in almost total agreement with the noble Earl, Lord Arran, and I regret to say in almost total disagreement with the noble and learned Viscount, Lord Dilhorne. I continue to be in much that position. Nevertheless, I too believe that this Amendment is not altogether satisfactory. I think the main trouble with this Amendment—as, if I may say so and be in order, with some of the other Amendments put down by the noble Earl—is that it is attempting to break new ground. This whole Bill has, roughly speaking, the

707
purpose of equating male homosexual offences with other homosexual offences and indeed with heterosexual offences; and in those cases there are already Acts on the Statute Book which have been tried and tested before the courts over and over again, and therefore the words in those Acts, even if they did not have an exact meaning at the beginning, very definitely have an exact meaning now. The noble Earl would be very wise, both on this Amendment, and, if I may say so, on the other Amendments which he will have to put down at a later stage, to take the appropriate clauses out of these Acts which have been tried and tested in the courts and insert them in his Bill, instead of what is proposed. I very much agree with this Amendment in sentiment and in general substance, but certainly I agree with my noble friend and with other speakers that at this stage it really cannot be accepted.
LORD CONESFORD: I should like to point out to the noble Earl, Lord Arran, that I do not think that the definition he has attempted can be satisfactory, because if he will look at the only general words he uses, they are "building" and "open space", if I may leave out unnecessary words. To take one example of something about which we should be clear whether or not he wishes to include it, what about a ship?
LORD BROCKET: In the Division the other day, when so many of us supported the noble and learned Viscount, Lord Dilhorne, in his Amendment defining the words "in private" as meaning where not more than two were there, many of us thought it was much better to define it that way rather than as the noble Earl, Lord Arran, has said this afternoon. I took down his words; and he said "the only way to define what a private place is is to define what a public place is". You define what public places are, and then everything else in the world is private. That is, quite frankly, ridiculous. You have a sea beach; the cliffs above it are not included. One could go on ad infinitum. You have a public road and a drive going up to a farm with the word "Private" on it, and although it is within sight of the road it is private. I hope that the noble Earl will realise that this will confuse the issue, and will also
708
give a different analysis to the places which are private or public under the Amendment we passed the other day.
THE EARL OF ARRAN: If we have sinned it is only because we have attempted to go too far and tried to make this clear. If it is your Lordships' wish—and I had no means of testing it without a Division—that we should leave things as they are and not attempt to define a public place, so be it. I should have thought, and I am advised, that it would be better to try to lay down these things, but if we wish to leave things rather in the air—and I am afraid that we shall be doing exactly that—
VISCOUNT DILHORNE: If I may interrupt my noble friend, I hope he heard my suggestion that he should think again before Report stage and try to find some form of words which, without defining or seeking to define "private" or "public place", would make the criteria intended by Wolfenden apply. That is one possibility. Another possibility is not to make any attempt of that kind at all. But the noble Earl seems to take my efforts at assisting him as a rather hostile demonstration.
LORD STONHAM: May I make It quite clear that I have tried to show in my speech on the noble Earl's Amendment that the Government would very much welcome a definition, provided that we could agree on a formula. I hope the noble Earl will not take any suggestions made in wrong part. I thought on the whole they were intended to be very helpful.
LORD BOOTHBY: In any case, it is more likely to be on the ground than in the air.
LORD AIREDALE: Would the Minister be likely to look favourably upon a formula based upon the expression "liable to outrage public decency"?
LORD STONHAM: That certainly emphasises not only what Wolfenden had in mind but I think what we all have in mind. It is not so much a question, therefore, of looking favourably upon it, because we all look favourably upon it; but if it can be embodied in such a definition in a way which would be acceptable in a Statute, then of course I should welcome it.
THE EARL OF ARRAN: May I intervene once more? In that case, let us beg leave to withdraw this Amendment, and let us try something better, something less than what the noble and learned Viscount has called so patronisingly, Beta-minus and see if this time we can get to Beta-plus. Let us come back on the Report stage. Let us consult with the Home Office. Let us try to find a formula which will please all your Lordships. Let us not give in—and we do not intend to give in, as the noble and learned Viscount should surely know by now.
Amendment, by leave, withdrawn.
Remaining clause agreed to.
THE LORD BISHOP OF LONDON:
I need not delay the Committee for more than one or two minutes on this last Amendment. It seemed to us that the scope of the Bill had been extended by the Amendments which have been accepted, or have been accepted in principle, and that it would be more accurately described if the words "in private" were omitted from the Title. I beg to move.
Amendment moved—
In the Title, line 2, leave out ("in private").—(The Lord Bishop of London.)
LORD STONHAM: I am sorry that the most reverend Primate has not been able to stay until this moment, because I was looking forward to the joy of congratulating him on the impeccable nature of his drafting. As the right reverend Prelate the Bishop of London has said, the scope of the Bill has already been extended, and the right reverend Prelate has introduced an Amendment with which we may make acquaintance again at a later stage, altering the sentences; therefore, we must alter the Title of the Bill. I hope, therefore, that the noble Earl, Lord Arran, may feel able to accept this Amendment.
On Question, Amendment agreed to.
Title, as amended, agreed to.
House resumed; Bill reported with Amendments.

CRIMINAL PROCEDURE (ATTENDANCE OF WITNESSES) BILL
4.45 p.m.
Order of the Day for the House to be put into Committee read.
Moved, That the House do now resolve itself into Committee.—(Lord Hodson.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD MERTHYR in the Chair.]
Clause 1 agreed to.
Clause 2 [Summons to witness to attend court of assize or quarter sessions]:
LORD HODSON: The first Amendment is simply to leave out subsection (4), which reappears in a different form later. I beg to move.
Amendment moved—
Page 2, line 28, leave out subsection (4).—(Lord Hodson.)
On Question, Amendment agreed to.
Clause 2, as amended, agreed to.
Clauses 3 to 7 agreed to.
LORD HODSON LORD HODSON moved, after Clause 7, to insert the following new clause:
Abolition of subpœnas in certain proceedings 1952 c. 55
". No subpœna ad testificandum or subpœna duces tecum shall issue after the commencement of this Act in respect of any proceedings for the purpose of which a witness summons may be issued under section 2 of this Act or in respect of any proceedings for the purpose of which a summons may be issued under section 77 of the Magistrates' Courts Act, 1952 (process for attendance of witnesses in magistrates' courts)."
The noble and learned Lord said: This clause reproduces what was formerly subsection (4) of clause 2, which puts an end to the issue of a subpœna in any case where a witness summons to compel attendance at a court of assize or quarter sessions could be issued under the clause. The new clause adds to that which was in the Bill originally the case where a witness summons can be issued to compel attendance at a magistrates' court under Section 77 of the Magistrates' Courts Act, 1952. That section provides that
"Where a justice of the peace … is satisfied that any person.… is likely to be able to give material evidence, or produce any

711
document or thing likely to be material evidence, at an inquiry into an indictable offence by a magistrates' court … or at the summary trial of an information or hearing of a complaint by such a court"—
he should issue a summons requiring the attendance of the witness.
Hitherto, although the ordinary procedure was as I have outlined it, or as it is described in that Act, it has been possible for a witness to be served instead with a Crown Office subpœna, perhaps to avoid the necessity of satisfying the magistrate that the witness's presence is necessary. I should have thought it was obviously desirable to do away with that practice in cases to which Section 77 of the Magistrates' Courts Act applied. The proposal in the new clause was not a recommendation of the Criminal Law Revision Committee, because they had not under their purview the magistrates' courts. It is, in fact, made at the request of my noble and learned friend the Lord Chief Justice. I beg to move.
Amendment moved—
After Clause 7, insert the said new clause.—(Lord Hodson.)
LORD PARKER OF WADDINGTON: May I just say that I support this Amendment? As somebody responsible for the working of the Crown Office I am, indeed, most grateful for it. If an application is made to the Crown Office, often at a late date, for the issue of a subpœna, it has to be granted; and the only means by which the unfortunate witness can apply to have it set aside is by the cumbersome motion of appearing before the Divisional Court. Accordingly, quite often important witnesses in the Civil Service, or even Ministers, are subpœnaed at the last moment, it may be on a Friday or Saturday, to go, perhaps, to Southend Magistrates' Court on the following Monday, which it is quite impossible for them to do; and in most cases they cannot give any relevant evidence. This Amendment will put an end to abuses of that sort.
LORD BOWLES: I am asked by my noble friend Lord Stonham to say that the Home Office accept this new clause. May I just add to what the noble and learned Lord, Lord Hodson, said, that the new clause will not affect the few miscellaneous classes of proceedings from magistrates' court which do not fall
712
within the terms of Section 77 of the 1952 Act.
I need not trouble your Lordships with many examples, but there are such examples as applications for bookmakers' permits, betting agency permits, and betting office licences under Schedule 1 to the Betting, Gaming and Lotteries Act, 1963. If it should be necessary to compel the attendance of a witness to such proceedings, Crown Office subpœnas could still be issued. As the subject of the new clause is outside the Long Title of the Bill, there will have to be another Amendment later.
On Question, Amendment agreed to.
LORD HODSON LORD HODSON moved, after Clause 7, to insert the following new clause
Powers of Parliament of Northern Ireland
. Notwithstanding anything in the Government of Ireland Act 1920 the Parliament of Northern Ireland shall have power to make laws for purposes similar to the purposes of this Act."
The noble Lord said: This Amendment seeks to enable the Parliament of Northern Ireland to pass laws for purposes similar to any of the purposes of this Bill, At present the Parliament of Northern Ireland is inhibited by the Government of Ireland Act, 1920, from legislating on reserved matters. The matter before us is a reserved matter, but it is obviously convenient that Northern Ireland should be able to pass a law similar to that in this Bill, and this practice will be secured by this Amendment. I beg to move.
Amendment moved—
After Clause 7, insert the said new clause.—(Lord Hodson.)
LORD BOWLES: My right honourable and learned friend the Home Secretary has asked me to announce to your Lordships that he willingly accepts this new clause.
On Question, Amendment agreed to.
Clause 8 [Short title, consequential amendments and repeals, commencements and extent]:
LORD HODSON: A clause such as is embodied in this Amendment is apparently one of the customs of Parliamentary draftsmen when it is necessary to cover a situation of this kind. I beg to move.
Amendment moved—
Page 6, line 6, leave out from beginning to ("does") in line 7, and insert—
(" (5) Any reference in this Act to any enactment shall be construed as a reference to that enactment as amended, and as including a reference thereto as extended or applied, by any other enactment.
(6) Section (Powers of Parliament of Northern Ireland) extends to Northern Ireland and so much of this section and Schedule 2 to this Act as relates to the Writ of Subpoena Act 1805 extends to Scotland and Northern Ireland. but, save as aforesaid, this Act").—(Lord Hodson.)
LORD BOWLES: I again have pleasure in informing your Lordships that the Home Office accept this Amendment.
On Question, Amendment agreed to.
Clause 8, as amended, agreed to.
Schedules agreed to.
LORD HODSON: The two Amendments to the Title seek to cover the restriction of the issue of subpœnas for securing the attendance of witnesses before magistrates' courts, and the addition of the words "and for connected purposes" covers the situation with regard to Northern Ireland. I beg to move the first Amendment.
Amendment moved—
In the Title, line 3, leave out second ("and").—(Lord Hodson.)
On Question, Amendment agreed to.
LORD HODSON: I beg formally to move the last Amendment.
Amendment moved—
In the Title, line 4, at end add ("to restrict the issue of subpoenas for securing the attendance of witnesses before magistrates' courts; and for connected purposes").—(Lord Hodson.)
On Question, Amendment agreed to.
House resumed: Bill reported, with Amendments.

INQUIRIES INTO SERVICEMEN'S DEATHS OVERSEAS
4.54 p.m.
VISCOUNT FURNESS VISCOUNT FURNESS rose to ask Her Majesty's Government whether, in the interests of natural justice, it would be possible for representation of the deceased or the deceased's next-of-kin to be permitted at Service inquiries in substitution of inquests overseas in cases of accidental death, and if not, what protection in the eyes of the public there is for the good name of a deceased Serviceman. The noble Viscount said: My Lords, I rise to ask the Question standing in my name on the Order Paper. Before I do so, I feel that I must apologise most humbly to the noble Lord, Lord Shackleton, and to the House for not being in my place to ask this Question when it was put down a week ago. Your Lordships will know the reason for it. My information as to the length of time to be occupied by the previous business was faulty, but it was my own fault that I was not here to ask the Question. I do not propose to expound to your Lordships at any length about this question which, in one sense, is of minor importance, in that only small numbers of persons are involved, but which, in another sense, affects the rights of the subject and natural justice, which can never, and must never, be unimportant to your Lordships' House.
The Parliamentary history of this question is that my honourable and gallant friend the Member for Hemel Hempstead asked what your Lordships would call a Starred Question in another place on November 30, 1964. My honourable friend received what he considered to be an unsatisfactory answer to his Question, and gave due notice that he would raise the matter on the Adjournment. On March 8 of this year he managed to catch Mr. Speaker's eye during the debate on the Army Estimates and received no reply on the Floor, probably because the time that the Minister had to reply was very brief, although my honourable and gallant friend subsequently received a reply by letter. I apologise to your Lordships for this rather long introduction, but I am seeking to show that my honourable friend had played fair with the Ministry of Defence in another place and given them

715
quite a few opportunities to reply to this Question.
The problem, stated as succinctly as I am able, is that the deaths of Servicemen who are killed accidentally in England are subject to a two-pronged investigation: the one by a Service board of inquiry, the proceedings of which are confidential, and the other by a civilian inquest. At the former, the next of kin—parent or wife—are not represented, but at the coroner's inquest the next of kin can be represented, and the verdict is, of course, made public. So far as I am aware, nearly all the countries overseas where Her Majesty's Forces are currently serving, with the exception of the Federal Republic of Germany, follow English legislation in this regard. Therefore, it is primarily Germany with which I am concerned.
It was in this context that the noble Lord the Minister of Defence for the Royal Air Force very kindly gave me in a Written Answer some figures regarding accidental deaths of Servicemen in Germany. I do not propose to bore your Lordships with the details, but. ignoring the very high figures for 1947 and the high number of deaths in 1948 (which hardly, I should have thought, reflect the scope of the problem which we are considering to-day), the average number of fatal accidents in Germany in the years 1949 to 1964 was 85½; the highest number occurred in 1955, 112; and the lowest was in 1958, 53. To be fair to the noble Lord, he has entered the caveat that this figure includes suicides, as it is not possible to exclude them from the totals. However, the question of suicides strengthens my case rather than weakens it, because the possibility of a death by suicide or when the balance of the mind was disturbed is surely one with which a coroner's inquest in England would be directly concerned.
I am advised that in Germany there is no procedure akin to a civil inquest and therefore it would be improper and illegal to hold one there. There are, however, several possibilities that could be considered. The first is that an inquest be held in the United Kingdom: but the disadvantages to this course of action are many. The major one would be that there would be no power, and could be no power, to compel the attendance of
716
witnesses who are citizens of the Federal Republic of Germany. I understand from the answer given to my honourable friend the Member for Belfast, North, on November 30 last by the Minister of Defence for the Royal Navy, in reply to a supplementary question, that Her Majesty's Government have not, however, wholly rejected this method of procedure.
A second way which would be no doubt very cumbersome is to establish under military law a special court as close as humanly possible to an English coroner's court. This would have to be under a new procedure which would require legislation, which is undoubtedly a drawback in these days (and when was it not so?) of a heavy Parliamentary programme of legislation. A third and, perhaps, more practical method of achieving this end would be that a representative of the dead soldier would be permitted to be present at the Service board of inquiry.
It has been stated, in correspondence, on behalf of Her Majesty's Government that the Select Committee on the Army and Air Force Bill of another place considered this matter in 1961, and that the relevant provision of the Army and Air Force Act, 1961, resulted from that consideration. With respect, my Lords, I would submit that the Select Committee did not have their attention drawn to this specific point. In this connection, I should like to quote the relevant paragraph from the annex to the Memorandum submitted on behalf of the then Secretary of State for War and the Secretary of State for Air to the Select Committee on February 21. 1961:
"A board of inquiry is a purely domestic investigation held to establish the facts of a case to assist Service authorities to determine whether there has been negligence in complying with Service regulations, and whether Service procedure, etc. should be improved.
"The purpose of this subsection is to make it clear that the right of attendance and representation at a board of inquiry is restricted to persons in the service of the Crown whose character or reputation might be affected adversely by the findings of the board …
"From a study of the proceedings of the earlier Select Committee it appears that their intention was to incorporate the rules in these Acts without changing their effect. Subsection (4) of Section 135 of the Army and Air Force Acts, 1955, provides that any person who may be affected by the findings of a board of inquiry shall have an opportunity of being present and represented. Some have read this

717
as having a wider effect than the previous rules and requests have been received for representation from private individuals, contractors and so on, whose activities may be mentioned at a board of inquiry. The presence of such persons is inappropriate at a purely internal domestic inquiry."
The only relevant evidence that I can find appears to me to have been taken before the Select Committee a week later, and here I refer to Questions 133, 134 and 135.
133 … Subsection (3) … "
—which is the one we are dealing with—
… is pretty well consequential. I should like to ask for a little explanation, if I might. Is it that a contractor, for example, who might be affected is permitted or is not permitted to be present at a board of inquiry?—Is not. The object of this amendment is to limit the people who have the right to attend the courts of inquiry or regimental inquiries to people in the service of the Crown, because they of course may be affected by the findings of the court of inquiry.
"134. That does not preclude them from being called to attend as witnesses?—No.
"135. You mean by 'attending a court of inquiry' to sit on it?—The right to be present during the whole of it and to cross-examine witnesses."
Surely, my Lords, it is not argued that the next of kin of a soldier killed accidentally is considered to be on a par with a contractor.
I gather that it is the official view that a Service inquiry cannot be a substitute for a coroner's inquest, because a judicial inquiry into a death is a matter for the civil authorities, and in this respect a Serviceman is in the same position as a civilian. I accept this so far as it goes, and it is an admirable system, I am sure, in England and in former British possessions where the law in this respect parallels our own. But is it fair, just and equitable, when our Servicemen are serving in time of peace in a country as closely allied to us by the North Atlantic Treaty as the Federal Republic of Germany, when, by some accident of history producing a different legal system, there is no provision for an independent legal inquiry? This seems to me manifestly unfair.
This afternoon I should like to put two specific questions to the Minister. First, do Her Majesty's Government agree that some procedure akin to the English coroner's inquest should be available in the interests of natural justice, to protect the good name of a
718
deceased Serviceman when the circumstances would seem to necessitate it? If so, which, if any, of the suggestions for achieving this do they favour; and if none, what solution to the problem do they propose?
LORD SANDFORD: My Lords, I should like to endorse what my noble friend has just said, and particularly the third of his suggested methods of dealing with this problem. It seems to me that if we could revert, so far as next of kin were concerned, to the situation as set out in the Army Act, 1955, we should be in a position to do what he is asking. The Act, if I may read it again, provides, in Section 135(4), that
"Board of inquiry rules shall contain provision for securing that any witness or other person who may be affected by the findings of a board of inquiry shall have an opportunity of being present, and represented, at the sittings of the board or such part thereof as may be specified by or under the rules."
That Act was taken, from the point of view of the next of kin of a deceased soldier, one stage further, in that the rules require that persons who might be affected by the findings of the board of inquiry should have notice of the board of inquiry and an opportunity of being present. It seems to me that if we could revert, so far as next of kin were concerned, to that situation, all that my noble friend is asking for could be secured.
I agree with him that what was considered by the Select Committee on the Army and Air Force Act in 1961 was concerned with reducing the claim of contractors to be present at boards of inquiry, the results of which were likely to affect them, and I can quite see the necessity for doing that. But it seems to me that that Committee did not consider the effect of the change in the Army Act which they were trying to make in respect of contractors. They did not foresee that it would preclude the possibility of next of kin being able to be present at these boards of inquiry. If that could be set right, it seems to me that their very important claims could be taken care of. The Army Act, 1955, includes in the subsection which I have just read out a statement that such persons
"shall have an opportunity of being present …"

719
at such parts thereof of a board of inquiry
"as may be specified by or under the rules".
This subsection takes care of the fact that some parts of the board of inquiry may well be confidential, may well be domestic to the Service, and may well be unsuitable for the presence of next of kin. But it seems to me that there is no reason why they should not be there for some part of it.
5.8 p.m.
THE MINISTER OF DEFENCE FOR THE ROYAL AIR FORCE (LORD SHACKLETON): My Lords, I know that the Question put by the noble Viscount is one of very real concern to the next of kin of Servicemen who have been accidentally killed. I can say to him—and I am sure he would accept this—that this matter has been considered very fully and very sympathetically in the Ministry of Defence, not merely by myself but by my honourable friend the Minister of Defence for the Royal Navy who exercises a general responsibility in personnel matters. I am very well aware, too, of the feelings of the honourable and gallant Member for Hemel Hempstead. It is quite natural for us all to ask whether the interests of a man who has died are properly safeguarded at Service inquiries, since the rules do not provide for the attendance of his representatives.
I am afraid that I am not going to make a very helpful reply but I shall do my best, as has been done before, to explain the reasons why we cannot go further in meeting the wishes of the noble Viscount. He has already quoted very fully from certain statements that have been made in another place and elsewhere, but I must emphasise that we cannot attribute to a Service inquiry characteristics which it does not, and could not, possess. A Service inquiry, as the noble Viscount himself said, when quoting, is domestic. It is held, essentially—and I do want to emphasise this—to adduce facts and to report to higher Service authorities. Indeed, what is said at a Service inquiry cannot be used in evidence at a subsequent court-martial. It is not a court of law, and it is not in any way a substitute for an inquest. Where an inquest can be held, it is nor
720
mally held in addition to a board of inquiry, as happens in England.
But at a Service inquiry the Service is exercising the right and recognising its responsibility to undertake a private investigation of the sort which any large organisation, commercial or otherwise, might be expected to hold in any circumstances which require such an inquiry. The rules on the taking of evidence and the examination of witnesses differ from those governing a judicial inquiry. Indeed, in certain respects—although I am not sure whether or not this is a good argument—a different practice exists even among the Services themselves. All Army and Air Force boards take evidence on oath, and there is provision for this by Statute: whereas, by contrast, the Royal Navy has no such powers. Naval boards of inquiry are non-statutory, and no oath is taken by witnesses.
I should like to emphasise the difference between these essentially (and I apologise for using the word) domestic or internal proceedings and a coroner's inquest. An inquest is a judicial inquiry, it is normally held in public and the verdict is made public. But, as the noble Lord admitted, it is not by any means a universal procedure. It is an institution to be found in England and in countries which have followed the English system of law, but, for instance, it does not exist in comparable form in a number of other countries, and certainly not in a comparable form under Scottish law. The noble Lord talks about inquests overseas. I realise Scotland is North of the Border, but it is certainly not overseas. In Scotland, as many noble Lords will know, a report is made by the police to the procurator-fiscal, who will conduct his own investigation and may later, if he so decides, institute a fatal accident inquiry, but not necessarily.
My Lords, I hope your Lordships will agree that, where the procedure for coroners' inquests does not apply, we really could hardly suggest that it should be introduced—I know the noble Viscount is not suggesting it, but we could not do this—quite independently of the Services, into the domestic civil law of another sovereign State. If we were thinking of widening the scope of coroners' inquests we should have to start by introducing this English procedure into the

721
law of Scotland—a prospect which would no doubt appal some of my noble friends.
The noble Viscount suggests that there is an issue of natural justice involved, since the good name of the deceased Serviceman may be impugned by a board of inquiry which has not heard the case for the deceased. I always hesitate to get far into a discussion of what is natural justice, since this is a difficult concept for a layman, and possibly even for lawyers, to be precise about, but I think that the view that natural justice is involved overlooks the fact that the proceedings are essentially confidential and, indeed, the important thing is that they should be confidential. In all three Services the proceedings of an inquiry, together with the conclusions of higher authorities, are confidential. They are not revealed outside official circles, although established facts may be passed on to the next of kin of the deceased. Since there is no publicity so far as the inquiry is concerned, the question of clearing a dead man's name does not arise so far as the inquiry is concerned.
I agree that, by any definition of "natural justice", a man who is likely to be affected by proceedings is entitled to be heard, but it is the regrettable nature of the situation that a dead man cannot be heard. Indeed, we must remember—although the noble Lord may not consider this entirely satisfactory as an analogy—that it is not possible in civil law to launch an action for libel or slander on behalf of a dead man. Therefore, I think it is of prime importance to keep this principle of confidentiality.
If we were to provide at Service inquiries for the representation of a dead man or his next of kin, we should undermine the confidentiality of the particular board and, indirectly, of boards of inquiry in general, and it is possible that the good name of someone else, including somebody who may perhaps have died in the same accident, might also be thereby impugned. We should be changing the whole character of the proceedings. Indeed, we should have to evolve a quite new form of inquiry in addition to the existing board of inquiry. I am not sure whether that is not, perhaps, what the noble Viscount would like, hut it is not, of course, the basis of his Question. But, since this new form of inquiry would still have to be under military auspices,
722
it would technically be a board of inquiry, to the prejudice, in the public eye, of boards of inquiry under current rules.
Much as I should like to meet the noble Viscount on this—and, as I say, I did discuss this fully with my honourable friend the Minister of Defence for the Royal Navy—we cannot escape from the logic of the situation. A Service inquiry is for Service purposes, and its procedures must be framed in that light. It has nothing to do with any form of inquiry which may be prescribed by civil law; and, if the civil law does not provide what the noble Viscount regards as a satisfactory procedure, we cannot, I fear, find a remedy by altering the procedures of the Service inquiry.
The noble Viscount asked me a particular question as to how the good name of the particular Serviceman can be preserved. I have, as we all have, the greatest sympathy with the natural distress of bereaved relatives, but I do not think that we can get over the criticisms made by the noble Viscount in this way, and I cannot, therefore, accept them as valid in these particular terms. I myself have seen something of boards of inquiry and know just how dangerous it might be if, in certain circumstances, people under great stress and emotion had access to certain information which might mislead them into completely wrong conclusions. My Lords, I think the best way of protecting the memory of Servicemen is to remember that the Services always are at pains to respect the memory of their dead colleagues.

OVERSEAS DEVELOPMENT AND SERVICE BILL
Brought from the Commons on Friday last endorsed with the Certificate from the Speaker that the Bill is a Money Bill within the meaning of the Parliament Act, 1911: printed pursuant to Standing Order No. 44A; read 1a.
MINISTERIAL SALARIES CONSOLIDATION BILL [H.L.]
Reported from the Joint Committee on Consolidation Bills without amendment, and recommitted to a Committee of the Whole House.

NUCLEAR INSTALLATIONS BILL [H.L.]
Reported from the Joint Committee on Consolidation Bills without amendment,
724
and recommitted to a Committee of the Whole House.
House adjourned at seventeen minutes past five o'clock.