§ 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 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.