§ 3.39 p.m.
§ House again in Committee.
§ 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 fora 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 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.
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.
§ 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—
§ 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 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
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.
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 offencewould 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 moved, after Clause 1, to insert the following new clause
§ ". 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.
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 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.
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.