Lords Sitting of 23 May 1966

Preamble
The House met at half past two of the clock, The LORD CHANCELLOR On the Woolsack.
Prayers—Read by the Lord Bishop of Norwich
Several Lords—Took the Oath.

UNEMPLOYMENT BENEFIT OF SUPERANNUATED PERSONS
2.36 p.m.
LORD LINDGREN: 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 the number of persons between 60 and 65 years of age registered as unemployed and drawing unemployment benefit who were previously employed in banking, insurance, the Civil Service and local government and the average period such persons have been drawing unemployment benefit.]
THE MINISTER WITHOUT PORTFOLIO (LORD CHAMPION): My Lords, I regret the information is not available.
LORD LINDGREN: My Lords, is my noble friend aware that it is alleged that numbers of these persons on superannuation are drawing unemployment benefit in order to supplement that superannuation and not genuinely seeking work? What action is likely to be taken to stop this malpractice?
LORD CHAMPION: My Lords, the Minister of Pensions and National Insurance is certainly concerned at the possibility of abuse of National Insurance Fund by occupational pensioners and has sought the advice of the National Insurance Advisory Committee.
LORD PEDDIE: My Lords, can the noble Lord confirm whether it is true that a person unemployed from the specialist jobs must be offered only a similar job by the employment exchange?
LORD CHAMPION: My Lords, it is not quite that way. Whether a particular job is suitable for a particular person can be decided only by the statutory authorities. Broadly, a retired man would be expected to accept the sort of work that could reasonably be expected to be available to a man of his age in the district where he lived. This would not necessarily mean getting the same salary and doing the same type of work as before his retirement. Indeed, it is scarcely possible in occupations where it is a regular practice to retire men and women at a fixed age.
LORD DRUMALBYN: My Lords, is the noble Lord therefore saying that there is in practice a difference in treatment between people who have retired from their normal employment and people who fall out of work in the ordinary way? Will he confirm whether that is so?
LORD CHAMPION: My Lords, I should not have thought that there was a difference in practice. The only way you can test a person's attitude to work is by asking him to consider a particular job, as I am sure the noble Lord knows. But often it is the case that there are no suitable jobs available for the elderly in the sort of circumstances we are considering in connection with this Question.

SELECTIVE EMPLOYMENT TAX AND SCHOOLS
2.38 p.m.
LORD ABERDARE: 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 they consider it to be in the best interests of education to impose the selective employment tax on schools.]
LORD CHAMPION: My Lords, arrangements to be made to offset the effect of the tax on the finances of local authorities will cover all schools that they maintain. The question of compensating grant-aided schools, for all or part of the cost, through the normal grant machinery is being considered. The Government have decided that privately financed services as a whole should pay the tax without refund (except for certain transport

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services and subject to special arrangements for agriculture, horticulture and forestry). This means that there are no arrangements for exempting private educational institutions as such. The Government are, however, considering the position of charities in general.
LORD ABERDARE: My Lords, I am grateful for that reply, but does it not mean that this is discrimination against the independent sector of education, and, in particular, is it not discriminating against those schools which provide a boarding education?
LORD CHAMPION: My Lords, the Government have decided that privately financed services generally should pay the tax without refund. There is therefore no question of discrimination against independent schools.
LORD CARRINGTON: My Lords, is it not a fact that there is throughout the country a shortage of places in boarding schools? May we then take it that it is the policy of the Government to aggravate that shortage?
LORD CHAMPION: My Lords, the policy of the Government is to do whatever is best for the country as a whole.
LORD CONESFORD: My Lords, in the case of the schools that are to obtain no refund, is it the Government's intention that the tax should be paid at the cost of the parents, the children or the teachers?
LORD CHAMPION: My Lords, the cost will be paid by the institution concerned.

THE SEAMEN'S STRIKE
LORD CHAMPION: My Lords, my noble friend the Leader of the House will be making a Statement at a suitable moment after half-past three concerning Government measures resulting from the seamen's strike.

MERSEY DOCKS AND HARBOUR BOARD (SEAFORTH WORKS) BILL [H.L.]
2.43 p.m.
Read 3a, and passed, and sent to the Commons.

SCOTTISH UNION AND NATIONAL INSURANCE COMPANY BILL [H.L.]
Read 3a, and passed, and sent to the Commons.
HUYTON-WITH-ROBY URBAN DISTRICT COUNCIL BILL [H.L.]
Read 3a, and passed, and sent to the Commons.

SEXUAL OFFENCES BILL [H.L.]
2.44 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.—(The Earl of Arran.)
On Question, Motion agreed to.
House in Committee accordingly.
[The EARL OF LISTOWEL in the Chair.]
Clause 1:
Amendment of law relating to homosexual acts in private
1.—(1) Notwithstanding any statutory or common law provision, a homosexual act in private shall not be an offence provided that the parties consent thereto and have attained the age of 21 years.
(2) An act which would otherwise be treated for the purposes of this Act as being done in private shall not be so treated if done—

(a) in the presence of any person other than the parties to the act; or

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

LORD SALTOUN LORD SALTOUN moved, in subsection (1), to leave out "21" and insert "25". The noble Lord said: My Lords, this Amendment has a double purpose. It not only has the ostensible purpose that I put before your Lordships when I moved it on the last occasion, but also tries to differentiate between the different motives of those noble Lords who have supported this Bill in your Lordships' House. In order to do this, I have to go back and refer to a passage in my life to which I am not very fond of referring or thinking about, and that is the time when I was a prisoner of war in Germany, and in

1171
Eastern Germany, too, during the first World War. There were then a good many of these people to be found in the various camps, although not so many as later on, when the Naval Brigade was imprisoned by the Russians in 1919, and British seamen moving about the prison among the other prisoners for any reason at all had to go about in threes, for their own safety. But still, there were quite a number of these gentlemen in the camps where I was, and they were marked by one important characteristic: they were extremely arrogant. They had the greatest contempt for normal people and said that we did not know how to live. Far from trying to conceal their idiosyncrasy, they were very proud of it and boasted of it.
I saw a book by a German psychologist on this subject which entered into a good deal of detail. One unfortunate thing about these people is that they have a great attraction for some women. This is most unfortunate, because they have no real use for them. Not long after your Lordships rejected my Amendment on the previous occasion, I received a letter from a parson saying how he had had a case not long before where the marriage of a homosexual young man had broken down because his wife could not stand his behaviour. He went on to say that he preferred the first chapter of Romans to the most eloquent speeches made on the subject in your Lordships' House. That is only one case, but I have known similar cases all my life. It is one of the things that we are here to consider. As a matter of fact, the law being what it is, it seems to me (although I would not have gone out of my way to make the law, had it not been the law) to act the part of covering fire: it keeps the heads down. When the covering fire is over, they get their heads up, and I have no illusions as to the forces that your Lordships are prepared to let loose in this country.
One of the principal motives for passing this Bill is the question of blackmail. This has never been said in our debates, but I think it ought to be pointed out that Lesbians who bask in the full sunshine of legality are blackmailed just as much. After all, if it comes to blackmail, are we not all engaged in blackmail? The language of every industrial dispute is the language of the blackmailer. Only the
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other day the Scottish teachers demanded more. I said to myself: "Here are educated men—some at any rate partly educated. Let us see what their language is." The language was just the same. They were insulted by the offer that the victim dared to put forward, and were entirely reckless of and disregarded the sources from which the money to satisfy their demand would come. If that is not blackmail, I do not know what is. I do not mind telling your Lordships that, if I could think of any way of getting a stranglehold on the community, I should probably be a blackmailer myself. But in any case, I think the argument from the blackmail point of view is very largely exaggerated.
There are three propositions before your Lordships this afternoon. There is the proposition of the noble Earl, Lord Huntingdon, for the age 18; there is the Bill, which proposes 21, and there is my proposition for 25. I do not want to repeat the argument that I put before your Lordships on the last occasion, when I said that I did not care very much what aberrations and practices were indulged in by people who had got beyond the time of producing the next generation. There is only one small biological argument I could add to that. My biological friends tell me that whereas women come into the world with a certain number of ova which cannot be increased, men go on producing spermatozoa, if they are fortunate, for the rest of their natural lives. Your Lordships will remember that that fact is one of the facts recorded in Holy Scripture in praise of the ancient patriarchs. As a matter of fact, with the ages we have to consider, that does not enter into it very much. The noble Earl will explain his Amendment, but I imagine his idea is that you have this relaxation at puberty. The idea of the Bill is that you put this before the young man as one of the enlargements and liberties of coming of age. My Amendment definitely seeks to say to him: "Well, you have come out you have become a man. You have been responsible for your own actions, and now you have lived a year or two in the world. If you still cannot control yourself we must shrug our shoulders and let it go."
There is one point of which I am perfectly certain. People tell me that,

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because the youngest permissible age in the Bill is 21, that will act as a protection for boys. I think that they are entirely mistaken. It will not have that effect in the least, because in order to act you must have evidence; and you can never get evidence, and it will be very unusual if you are able to prove the matter. In the Dorset case it was not possible to get evidence, and it will always be the same. These arrogant, contemptuous, gentlemen (and I am not alone in giving this character; the noble and learned Lord, Lord Goddard, last year came and gave your Lordships exactly the same information as I have given this afternoon, from a different source) do not care two straws about your 18 or 21. What they want to do is to get quite young lads, when their glands are just developing, and when their future course in sex matters is governed largely by their imagination. That is when they want to get at these lads. If this Bill goes through, I do not see how that can be prevented, and with all the evil consequences which that will produce on the society for which we are making our laws. I am bound to say that it is with great sorrow that I have to move this Amendment, but it is the best I can do, and I am perfectly certain that it would be a great help to the country if it were put into the Bill. I beg to move.
Amendment moved—
Page 1, line 8, leave out ("21") and insert ("25").—(Lord Saltoun.)
2.55 p.m.
THE EARL OF HUNTINGDON: I do not know whether it might be for the convenience of the House if we discussed my Amendment, which is to substitute the age of 18, and this Amendment at the same time. The noble Lord, Lord Saltoun, has kindly agreed to that procedure, so I think the course is for me to speak to my Amendment and then, after the general debate is finished, Lord Saltoun's Amendment can be put, and I will move mine. Perhaps that would be the most convenient procedure, if noble Lords will agree.
The one thing I should have thought the whole Committee will be agreed upon is that noble Lords do not want to hear a recapitulation of the old arguments that we went through when the Bill was previously before this House. So I shall
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be very brief on this subject. On the previous occasion, I went very briefly into the Wolfenden Report and the four sets of recommendations, two of which suggested 16 as the best age, one 18, and one 21. My own feeling is that, had the Wolfenden Committee met to-day, it is probable that in the new circumstances and the new climate of opinion they would have come out strongly for 17 or 18. But that is only a personal point of view. It seems to me very illogical that women do not have to be protected after 16, and that, suddenly, we say that the men are so incapable of looking after themselves that they have to be protected up to 21. However, I do not want to recapitulate. We have all heard the arguments in full and I wish to make only two points.
The first is this. I have always believed that one of the chief reasons for this Bill was the prevention of blackmail. I think this is a horrible crime, and the homosexual is particularly vulnerable to the blackmailer. Those of your Lordships who saw the reports of the very unpleasant case known as the Moors case, will remember that when the criminals were discussing whether to rob banks, and so on, they all said that the easiest way to get money was what they called "rolling the queer", or attacking the homosexual, who was unable to protect himself legally. I think that goes on all over the country now. These wretched people are subject to the worst form of blackmail. If you make the age 21, instead of 17 or, as I suggest 18, you at once open up a much wider field for blackmail. There will be many more people involved who can be blackmailers, and there will he many more who can be blackmailed. More than that, it is easy for a young man of 20 to pretend that he is 21 or 22 and get away with it, and then, if he wishes to blackmail, he discloses his age and has a grip hand on the wretched victim.
This is not just supposition. I have recently received a letter from a well-known firm of solicitors who said that in the last two years they had had through their files several cases of youths of 16 and 17 who quite obviously had led older men into trouble. When we are talking about corrupting youth—which naturally we all deplore—we must remember that

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often it is youth who corrupt the old. That is something worth bearing in mind.
I should also like to add that, to-day, of course, youth is growing up more quickly. I saw an interesting point in the Guardian last Saturday. The British Medical Association, in a memorandum submitted to the Latey Committee, recommended that the legal age at which young people should be able to marry without parental consent should be 18. They said that by this age both boys and girls are physically mature, and that in the experience of family doctors most young couples of 18 or 19 (other things being equal) discharge their duties of parenthood no less effectively than those in their early 20's. I think there has been a steady tendency to grow up more quickly within the last few years, which is still going on, which again makes it rather foolish to adopt such a late age as 21 which is now in the Bill. Moreover, despite what has been said, blackmail is, to me, one of the most detestable crimes. It makes its victim despairing, hysterical and sometimes prone to suicide, and if only for that reason we should be wise to put back the age to 18 to try to prevent some of this horrible blackmailing which has been going on.
There is only one other point that I want to make. To me, and I am sure to your Lordships, homosexual practices are utterly repellent, but I think we must all recognise—as, indeed, I think we have done, by agreeing to the Second Reading of this Bill—that there is a big minority, it may be half a million or a million, who have this tendency and cannot help it. Whether it comes innately or in early infancy we do not know, but the Wolfenden Report contained a lot of medical evidence which came to the conclusion that a homosexual was set in his way of life well before the age of 16. What I suggest we do not want to do with this minority is to turn them into a criminal class. I think that in some ways 17 would be a very good age to take, because cases of this kind could come under the Protection of Young Offenders Act, which is not possible after 17 and I have suggested the age of 18 only as a compromise with those who might think that a later age was better. Certainly I think it is important to realise the danger of
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the prison sentence, because that is not the way to cope with the problem. Very often it has the reverse effect with a young man, who might go for help and advice to his psychiatrist, doctor or priest, but would hesitate to do it when he had to come and confess that he had actually engaged in criminal activities. If we could remove that slur I think a great many more people would seek help and advice, which is, after all, what we want them to do. That alone, I think, reinforces the suggestion that the age should be 18. Sex is a very strong motive. None of us would suggest that the ordinary young man should forgo his contact with women in the young years of his life, and I do not think we should expect homosexuals to do so. If we do, we may well fail. I see no reason for labouring this point, but I would strongly urge your Lordships to consider the logical aim of bringing in this Bill and to support me in my Amendment in regard to the age of 18.
BARONESS WOOTTON OF ABINGER: We can leave school at 15; we can marry, with parental or magisterial consent, at 16, or engage in sexual intercourse at 16. At 17, we escape from the clutches of the juvenile court; at 18, until recently, men were liable to be called up for the Army. At 21 we can inherit property; we can take a seat in your Lordship's House, if we are qualified, or we can offer ourselves for a seat in another place. There is no other privilege which sets the age as high as 25. I personally do not feel very strongly whether it should be 18 or 21, but in this day and age, when young people are maturing so much earlier, I think that to push forward the period of tutelage to 25, an age which has no meaning in any similar context, would be an absurdity.
THE EARL OF ARRAN: If I may be excused the phrase, this is surely "where we came in." Some noble Lords are putting forward the same Amendments which they put forward a year ago. I respect their resolution. If one feels strongly about something one should obviously not keep silent, but I hope your Lordships will not change your minds, at any rate in regard to Lord Saltoun's Amendment. I said last time, and I say it again, that the noble Earl, Lord Huntingdon, may well be right. It is

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surely the height of absurdity as the noble Baroness, Lady Wootton of Abinger, said, that the age of consent to an act of sex should he five years older for a man than for a woman, if only because a woman can have a baby but a man cannot. But here we are sailing into uncharted oceans, and it might be unwise to take risks. It may well be that in time to come this age anomaly will be recognised as such and the age of consent will be lowered. Meanwhile, I should myself prefer to stick to the script, to the Wolfenden script. It is a very good script and I think it would be a mistake to go beyond it. But, of course, your Lordships may decide otherwise. I said that I thought the noble Earl, Lord Huntingdon may well be right; I am sure that the noble Lord, Lord Saltoun is wrong. Indeed I regard this as a wrecking Amendment, and I deeply hope that your Lordships will reject it.
When is a man to make up his mind for himself—at 20? At 30? At 50? I think of the traditional balad in which a man tells his parents of his wish to marry but says that the lady is a young thing and cannot leave her mother. When asked how old she is, he says, "She is six times seven, twenty-eight and eleven; she is a young thing and cannot leave her mother." This adds up to eighty-one, a year ahead of the age limit suggested by the noble and gallant Viscount, Lord Montgomery of Alamein, a year ago. All age limits are arbitrary but they have to be fixed somehow, for better or for worse. Despite what has been said, I see no valid reason to reject the compromise of 21 proposed by the Wolfenden Committee. It is the age, as has been pointed out, when a man becomes a full citizen; it is the age when he can decide and vote for what he thinks is right for his country. That being so, to say that he is not able to decide what is right for himself is surely carrying unreason and illogicality to the point of absurdity. We are shortly to vote on the Amendment proposed by the noble Lord, Lord Saltoun. I ask your Lordships firmly to reject it.
BARONESS GAITSKELL: I wish to speak, with the noble Earl, Lord Arran, and the noble Baroness, Lady Wootton of Abinger, against this Amendment, and I should like to say to the noble Lord,
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Lord Saltoun, with the greatest respect, that many of his fears are completely groundless. There is absolutely no logic in his Amendment. Twenty-one is the legal minimum age for marriage, for voting, for contracts, for criminal liability. Young people nowadays mature much earlier; they are bigger physically. The trend to-day is entirely towards lowering this age, and I am rather in sympathy with the noble Earl, Lord Huntingdon, in his suggestion that it should be 18, though I would stick to 21, Lord Arran's idea. There is in fact a Committee, the Latey Committee, sit-sing at the moment considering this minimum age.
We all know that between the ages of 18 and 25 the sex instinct is much the strongest. Making the age 25 only concentrates the field for blackmail. I believe we should not expect a greater restraint from homosexuals from 21 to 25 than we do from heterosexuals. This is very harsh and unrealistic. We should not make laws in this House knowing that men will not be able to endure them and so will break them. Though most of us in this House are no longer young, I hope we shall not be accused of a puritanism which springs from forgetting our youth. A lack of understanding and intolerance about the vagaries of human nature often manifests itself when we are no longer young. We should not legislate for a self-control and chastity that we know to be difficult to attain. If we do, posterity will only condemn us of an intolerance and lack of compassion born when all passion is spent.
3.13 p.m.
VISCOUNT DILHORNE: The noble Baroness, Lady Gaitskell, said there was no logic in the Amendment of the noble Lord, Lord Saltoun, and then the noble Earl, Lord Huntingdon, asked us to be logical and support his Amendment. I found no logic at all in the noble Earl's argument because his argument was based entirely upon blackmail. We all dislike blackmail, and he posed the case that if the limit was 21 some youth of 20 might take part in homosexual activities and then blackmail the other participant. That was his main argument for reducing the age below 21. Why stop there? Whatever limit the noble Earl likes to put in, surely that could equally well happen in relation to someone just below the

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limit. If he applies logic to his Amendment he will find that what he really wants is no age limit whatsoever. I can find no logic in that argument.
The noble Earl put a great deal of force in the blackmail argument. In considering this matter one ought not only to remember the poor homosexual liable to be blackmailed—and that, I think, is very exaggerated, as indeed the Wolfenden Report shows—but also to have regard to the young man between 18 and 21 subjected to considerable inducements and pressures to participate with older men in homosexual activities. That is the other side of the coin to which some regard should be had, and I hope this House will reject the noble Earl's Amendment as it has done on previous occasions.
VISCOUNT NORWICH: I should like to take up that particular case which the noble and learned Viscount, Lord Dilhorne, has just quoted: the slightly weak young man between 18 and 21 who may get led into temptation. If this occurs, and if as a result of it this young man (perhaps not 100 per cent homosexual; merely perhaps a little weak or bored, led in the wrong path) is going to be arrested and perhaps put into prison—and the prisons, as we know, are no strangers to homosexuality; how could they be?—when he emerges from prison he is going to have a far harder time finding a nice, understanding, intelligent girl he may marry who may bring him back on to the paths of heterosexuality and allow him to lead a normal heterosexual life than if he has not gone to prison. If he goes to prison at the outset of his career, when he is making his name and his way in the world, he will emerge afterwards scarred by his experience and very probably outlawed and ostracised by the society in which he has grown up.
There is one other point I would make. I fear—I hope I am wrong—that the Amendment as proposed by the noble Lord, Lord Saltoun, may conceivably encourage one or two of the more hesitant Members of your Lordships' House, who are not perhaps quite certain where truth and morality lie, in this case, to accept his Amendment as a sort of watering down of the law as we have it. I think this would be very wrong. If any of us is doubtful—and, indeed, obviously many
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of us are—about the rights and wrongs of this particular subject, the only thing we can do is abstain. If we think it is a bad law, we must throw it out. If we think, as I think, it is an extremely good law, we should go into it with confidence and courage and, above all, common sense.
LORD JESSEL: I have no liking for the Amendment of my noble friend Lord Saltoun. To-day at the age of 21—and the noble Earl, Lord Huntingdon, would say at 18—people are as mature as they are ever likely to be, especially sexually, as in these days they do start much earlier. I think it is true to say that to-day, by the age of 21, by and large, the sexual urges of young people are definitely determined, except perhaps in a few borderline cases. The homosexual of 21 is not going to change by waiting another four years. In fact, if during those years he is legally classed as a criminal he may deteriorate as a person and become a less valuable member of society. He may marry as a solution, to his own detriment and that of the unfortunate woman he has used as a sort of guinea-pig.
I have great sympathy with the point of view expressed by the noble Earl, Lord Huntingdon, but I think it contains an element of risk. It is still possible today that a young man of 18 may have lived in an almost entirely male society, not had the opportunity of appreciating the attractions of heterosexual love; but by 21 he would certainly know his own mind and come to terms with his own misfortune. Therefore, personally I am against the Amendment of the noble Lord, Lord Saltoun, and that of the noble Earl, Lord Huntingdon, and would vote for the Bill as it stands.
LORD SALTOUN: I do not want to detain your Lordships, but there are two things I should like to say. The first is that I have had an appeal to my logic. In reply to that I would say there is no logic about an elephant, but it exists, and when you have lived with the animal you know something about it, probably more than most people who only go by reports. That is the first point. Secondly, I am going to ask your Lordships to divide, because I am responsible, in my own mind at any rate, to a very large number of people: fishermen, farm servants, private soldiers and others, people who do not take much interest in politics

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at all and who let one Govenment go and another come without worrying very much, but who cannot understand how the House of Lords seems to vote always in favour of homosexuality. They cannot understand it and they are puzzled to death.
THE EARL OF ARRAN: I really must interrupt the noble Lord. The House of Lords has not voted in favour of homosexuality; it has voted in favour of homosexual law reform.

CONTENTS

Albemarle, E.

Fortescue, E.

Long, V.

Blyton, L.

Grenfell, L.

Merrivale, L.

Clifford of Chudleigh, L.

Grimston of Westbury, L.

Milverton, L. [Teller.]

Dilhorne, V.

Hawke, L.

Monsell, V.

Ferrier, L.

Kilmuir, E.

Oakshott, L.

Saltoun, L. [Teller.]

NOT-CONTENTS

Aberdare, L.

Emmet of Amberley, Bs.

Norwich, L. Bp.

Ailwyn, L.

Faringdon, L.

Norwich, V.

Amherst, E.

Ferrers, E.

Ogmore, L.

Amulree, L.

Fleck, L.

Plummer, Bs.

Archibald, L.

Furness, V.

Ponsonby of Shulbrede, L.

Arran, E. [Teller.]

Gaitskell, Bs.

Raglan, L.

Asquith of Yarnbury, Bs.

Gardiner, L. (L. Chancellor.)

Reay, L.

Attlee, E.

Gifford, L.

Royle, L.

Auckland, L.

Gladwyn, L.

Runciman of Doxford, V.

Audley, Bs.

Goschen, V.

Russell of Liverpool, L.

Barrington, V.

Greenway, L.

St. Davids, V.

Boothby, L.

Haire of Whiteabbey, L.

St. Just, L. [Teller.]

Brain, L.

Hall, V.

Samuel, V.

Brockway, L.

Harvey of Tasburgh, L.

Segal, L.

Brooke of Ystradfellte, Bs.

Hilton of Upton, L.

Sherfield, L.

Burden, L.

Huntingdon, E.

Sinha, L.

Burton of Coventry, Bs.

Jessel, L.

Snow, L.

Byers, L.

Kinross, L.

Sorensen, L.

Clwyd, L.

Latham, L.

Stocks, Bs.

Cohen, L.

Leatherland, L.

Stonham, L.

Colwyn, L.

Lilford, L.

Strabolgi, L.

Cranbrook, E.

Listowel, E.

Strang, L.

Denham, L.

Longford, E.

Strange of Knokin, Bs.

Drumalbyn, L.

Mitchison, L.

Summerskill, Bs.

Effingham, E.

Napier and Ettrick, L.

Terrington, L.

Elliot of Harwood, Bs.

Newall, L.

Wootton of Abinger, Bs.

THE EARL OF HUNTINGDON: After the Amendment of the noble Lord, Lord Saltoun, I feel that I ought again to press my Amendment. Many people were for it. I beg to move.
LORD SALTOUN: That may be very true, but one gets tired of explaining and explaining, and they do not understand the explanation. For that reason, I am going to stick to my guns, and I am going to ask your Lordships to support me.
3.20 p.m.
On Question, Whether the said Amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 16; Not-Contents, 77.*
* See col. 1199.
Amendment moved—
Page 1, line 8, leave out ("21") and insert ("18").—(The Earl of Huntingdon.)
3.40 p.m.
On Question, Whether the said Amendment (No. 2) shall be agreed to?
Their Lordships divided: Contents, 12; Not-Contents, 78.

NOT-CONTENTS

Aberdare, L.

Ferrers, E.

Newall, L.

Ailwyn, L.

Fleck, L.

Norwich, L. Bp.

Albemarle, E.

Fortescue, E.

Oakshott, L.

Amulree, L.

Furness, V.

Ogmore, L.

Archibald, L.

Gardiner, L. (L. Chancellor.)

Royle, L.

Arwyn, L.

Gladwyn, L.

Runciman of Doxford, V.

Asquith of Yarnbury, Bs.

Goddard, L.

Russell of Liverpool, L.

Balfour of Inchrye, L.

Goschen, V.

St. Just, L. [Teller.]

Blyton, L.

Greenway, L.

St. Oswald, L.

Boothby, L.

Grenfell, L.

Samuel, V.

Brain, L.

Grimston of Westbury, L.

Segal, L.

Brooke of Ystradfellte, Bs.

Hall, V.

Sherfield, L.

Burden, L.

Harvey of Tasburgh, L.

Simonds, V.

Byers, L.

Hilton of Upton, L.

Sinha, L.

Clwyd, L.

Jessel, L. [Teller.]

Sorensen, L.

Cohen, L.

Kilmuir, E.

Stocks, Bs.

Conesford, L.

Leatherland, L.

Stonham, L.

Denham, L.

Lilford, L.

Strabolgi, L.

Derwent, L.

Lindgren, L.

Strang, L.

Dilhorne, V.

Listowel, E.

Strange, L.

Douglas of Barloch, L.

Long, V.

Strange of Knokin, Bs.

Drumalbyn, L.

Longford, E.

Summerskill. Bs.

Dudley, L.

MacAndrew, L.

Terrington, L.

Effingham, E.

Merrivale, L.

Thurlow, L.

Elliot of Harwood, Bs.

Milverton, L.

Tweedsmuir, L.

Emmet of Amberley, Bs.

Monsell, V.

Twining, L.

Resolved in the negative, and Amendment disagreed to according.
House resumed.

MESSAGE FROM THE QUEEN: STATE OF EMERGENCY
3.50 p.m.
THE LORD PRIVY SEAL (THE EARL OF LONGFORD): My Lords, I have the honour to present a Message from the Queen, signed with her own hand. Her Majesty's Message is as follows:
"The Emergency Powers Act 1920, as amended by the Emergency Powers Act 1964, having enacted that if it appears to Her Majesty that there have occurred, or are about to occur, events of such a nature as to be calculated, by interfering with the supply and distribution of food, water, fuel or light or with the means of locomotion, to deprive the community or any substantial portion of the community of the essentials of life, Her Majesty may by Proclamation declare that a State of Emergency exists. The present stoppage of work among merchant seamen having, in Her Majesty's opinion, constituted a State of Emergency within the meaning of the said Act of 1920 as so amended, Her Majesty has deemed it proper, by Proclamation dated the 23rd day of May, 1966, and made in pursuance of the said Act of
1184
1920 as so amended, to declare that a State of Emergency exists."

STATE OF EMERGENCY
THE EARL OF LONGFORD: My Lords, with permission I should like to repeat a Statement which my right honourable friend the Prime Minister has just made in another place, about the Proclamation of a State of Emergency. His words were—and I quote the Prime Minister:
"With permission I should like to make a Statement about the Proclamation of Emergency under Section 1 of the Emergency Powers Act 1920. As the House is aware, that Act, as amended by the Emergency Powers Act 1964, provides that if at any time it appears to Her Majesty that events have occurred or are about to occur of such a nature as to be calculated, by interfering with the supply and distribution of food, water, fuel or light, or with the means of locomotion, to deprive the community, or any substantial part of the community, of the essentials of life, Her Majesty may, by Proclamation, declare that a State of Emergency exists; and Section 2 provides that where a Proclamation of Emergency has been made, Her Majesty may by Order in Council make Regulations for ensuring the essentials of life to the community.

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"In advising such action the Government are following the precedents of 1949 and 1955.
"Regulations under section 2 of the Act have been made this morning and are being laid this afternoon. My right honourable friend the Leader of the House will be making a Business statement to-morrow informing the House of the proposed changes in Business which will enable the House"—
that, of course, is the House of Commons—
"both to debate the Government's action in establishing a State of Emergency and, if the House sees fit, to approve the Regulations.
"The House will have an opportunity of studying the Regulations. In addition to dealing with control of port traffic and other aspects of work in the ports, they will deal with certain aspects of internal transport and the maintenance of other public services and essential supplies.
"Perhaps I should inform the House that power is being taken also to make orders prescribing the maximum prices for foodstuffs. This power—and this is true equally of others which are made available under the Regulations—is at this stage a reserve power only, and the Government do not consider that the time has been reached when any action or orders under the Regulations are immediately necessary, and no use will be made of them unless the need arises. It was, however, thought essential that the powers should he taken and Parliament given adequate time to debate them. The Government will not, of course, hesitate to make use of the powers should this become necessary.
"We are proclaiming an emergency because the Government must protect the vital interests of the nation. This is not action against the National Union of Seamen. We want the dispute between the Union and the shipowners to be settled as soon as practicable, and my right honourable friend the Minister of Labour has made clear his willingness to see representatives of both sides whenever it is felt that he can help them to end
1186
this dispute. He has, in fact, been meeting both sides this afternoon.
"As was made clear to the Executive Committee of the National Union of Seamen when my right honourable friend and I met them ten days ago, the Government are well aware that one of the major contributory factors in this situation has been the failure over the years to deal with an out-dated and archaic system of regulation of the terms and conditions of seagoing employment, particularly, of course, the issues raised by the Merchant Shipping Act of 1894, But whatever the outcome of the present dispute, it is the Government's intention to arrange for a powerful, thorough and independent inquiry into all the complex issues affecting the terms and conditions of seagoing employment."
My Lords, that concludes the Prime Minister's Statement. I should add that I myself propose to move on Thursday next an humble Address in reply to the gracious Message. This Address will thank the Queen for Her Message, and the Motion will provide an opportunity to explain to this House the Government's action. The Regulations will be debated in this House at the end of Business on Thursday.
LORD CARRINGTON: My Lords, I am obliged to the noble Earl the Leader of the House for repeating that Statement. I certainly do not intend to comment on the last part of the Statement, because I do not think that that would be either timely or wise. It is certainly the duty of the Government to decide whether or not a situation has become so serious that a State of Emergency has to be proclaimed, and no doubt we shall hear the reasons when the noble Earl moves the humble Address on Thursday. We shall also have an opportunity then, no doubt, as he has said, of discussing each of these Regulations. May I ask him whether there are a great many of these Regulations? Because there is a lot of business on Thursday, and if we are going to debate each of these Regulations singly it may take some considerable time. Could he give us some idea of how many there are?
THE EARL OF LONGFORD: My Lords, I can answer that question precisely, but I am rather frightened that

1187
by doing so I may be exaggerating the time they will consume. There are in fact 34 Regulations, counting a number of formal ones. I should not like to imply that some of these are not serious matters—I am sure they are—but, on the other hand, I do not want to suggest that that gives an accurate picture. But the answer is that there are, in all, 34 Regulations.
LORD CARRINGTON: I do not know whether there are any precedents for this in the House, but usually our Business is arranged through what are known as "the usual channels". This is the first I have heard this afternoon of the fact that we are going to change our Business on Thursday and debate 34 Regulations.
THE EARL OF LONGFORD: I am sorry, my Lords, but, owing to very pressing business elsewhere, the Chief Whip is not in London. I can only say that I am sure that, if he were here, he would, with his usual efficiency, reply to the particular point raised about the usual channels. But I do not think there is any intention of suggesting to noble Lords opposite that any Business should be interfered with. This Business, I understand, will be taken at the end of the day.
LORD OGMORE: My Lords, we on these Benches are grateful to the noble Earl for repeating this Statement. It is, of course, an extremely serious and important Statement. I understand that it is only twice since the end of the war that a similar State of Emergency and similar Regulations have been introduced. I am a little anxious about the time factor here. As these matters are so important, and as we in the House will want to look at the whole situation very carefully—both the Government's imposition of a State of Emergency and the Regulations under it—is there not a suggestion on the part of the noble Earl of scamping this business, of treating the House with, perhaps, less consideration than it might otherwise have expected, in taking this very important subject at the end of Business on Thursday?
THE EARL OF LONGFORD: My Lords, the noble Lord and I have known each other a long time, and I am sorry he should imply that I should be likely
1188
to suggest the scamping of Business. That is a long way from my mind. So far as I know, there will be ample time—I am sure there will be—to discuss this Business. Let me be quite frank. One reason for taking these items before Whitsun is that it might avert the recall of the House during the Whitsun holiday. I think that is a fairly obvious reason, and I could have hoped that the noble Lord, Lord Ogmore, would have appreciated that.
LORD OGMORE: My Lords, we can only appreciate it when we are told it; we are not clairvoyant. If a Statement like this is made to the House—and I acquit the noble Earl of any personal discourtesy—I think we are entitled to know the whole of the factors in the Government's mind.
THE EARL OF LONGFORD: I did not want to insult the noble Lord by underlining the obvious.
LORD BLYTON: My Lords, is my noble friend aware that we appreciate the reasons for invoking the Emergency Powers Act, because it is the Government's job to help ensure the supplies to the country; but could we be told that the Regulations that are brought in will not be used to browbeat the seamen's union into submission, into accepting the shipowners' dictates, such as happened to us in the 1926 strike? There is a tremendous fund of sympathy in this country for the seamen's case.
THE EARL OF LONGFORD: I can certainly assure the noble Lord that there are no intentions of using these Regulations to browbeat anybody.
LORD CARRINGTON: My Lords, may I revert for a moment to the Business of the House? I notice that on Thursday we are to discuss the Committee stage of the Veterinary Surgeons Bill, and that the Military Aircraft (Loans) Bill, the Public Works (Loans) Bill and the Transport Finances Bill are set down for discussion in Committee and remaining stages. Then there are two Unstarred Questions, on both of which, I imagine, there will be some debate. Although I do not know whether they will come before or after this. Is it proposed to do all this Business on Thursday?
THE EARL OF LONGFORD: My Lords, I understand that some of the

1189
Business will not take long. Certainly we hope that we shall be able to complete all this Business. I hope I was not too aggressive to the noble Lord, Lord Ogmore. I would stress the point that most noble Lords would prefer to conclude this on Thursday rather than run the risk of being recalled during the holiday.
LORD CARRINGTON: My Lords, I really do not think that is the point. If it is necessary to get this Business done on Thursday, then the other Business must be postponed. This Session is to last until October year; there cannot be all that hurry. I must ask the noble Earl to see that we are not asked to do so much Business on one particular day because of the Whitsun Recess.
LORD BOOTHBY: My Lords, may I support the noble Lord, Lord Carrington, and say that if we are asked to debate a Declaration of Emergency then surely it is obvious that that should take precedence over other Business of the House by being taken first on Thursday.
THE EARL OF LONGFORD: My Lords, I think I can only reply to noble Lords that these matters must clearly be discussed through the usual channels.
LORD OGMORE: My Lords, the point the noble Lord, Lord Carrington, has made is exactly my point, and I support him from these Benches. If this is a really important issue then surely the Committee stages of the Veterinary Surgeons Bill and of the Aircraft Bill and other matters can wait. There is no great urgency about them. After all, the Veterinary Surgeons Bill went through the last Parliament and just failed to come to the post. Nobody will worry very much if it is delayed another fortnight or three weeks.
THE EARL OF LONGFORD: My Lords, I do not feel able to comment on the importance of the Veterinary Surgeons Bill. I am sure that to many people it is of vital importance. I can only repeat that these matters must be discussed through the usual channels.
LORD ERROL OF HALE: My Lords, could the noble Earl help the House in one matter, the debate on the Regulations? I appreciate that we need not be
1190
too alarmed that there are 34 of them, as a number will be formal. But will each Regulation be taken separately, so that we have a series of short debates devoted to each Regulation's substance in turn, or will there be an omnibus debate, with omnibus approval of the Regulations at the end of the day?
THE EARL OF LONGFORD: Obviously, that must be worked out. I do not think the Government will do anything in this matter except try to meet the wish of your Lordships' House.
VISCOUNT DILHORNE: My Lords, the noble Earl said that there were 34 Regulations. He did not say whether they were all embodied in one document or whether there were 34 different documents. If they are all embodied in one document then I presume there will be one debate. Could the noble Earl say whether there is more than one document or whether there are 34 of them?
THE EARL OF LONGFORD: My Lords, I have a summary of the Regulations here which I shall be delighted to show to the noble Viscount afterwards.

SEXUAL OFFENCES BILL [H.L.]
4.3 p.m.
House again in Committee on Clause 1.
THE EARL OF HUNTINGDON THE EARL OF HUNTINGDON moved to leave out subsection (2) and to insert instead:
"(2) A homosexual act shall not be deemed to be done in private if done in a place where members of the public are likely to see and be offended by it."
The noble Earl said: This Amendment was fully discussed when the Bill was introduced last year, so I can be very brief. I think it possible that we made a mistake in the definition here, and I think the Committee ought to have the chance to review the actual clause by means of my Amendment. To define "public place" is, I appreciate, extremely difficult; especially from the point of view that behaviour which might be respectable in one public place might be offensive in another. To give an example of that: nowadays young girls on open beaches wear very few clothes: they wear

1191
bikini bathing dresses, and no-one seems to mind. But if the same girl were dressed like that in Oxford Street it would cause great offence. So it is exceedingly difficult to lay down what can he done in a "public place" as against a private place.
I suggest to the Committee that my Amendment would meet all reasonable contingencies, yet would not threaten private liberties. I suggest that we should follow the intention of the Wolfenden Committee on this question. They went into it very thoroughly, and they said that these practices, if they take place, must not be seen by the public or offend the public. What I suggest is that we must have in mind the protection of the public from any sights or behaviour which might offend them. As it stands, subsection (2) says that an act is not "private" if it is done in the presence of more than two persons. This definition has certain dangers attached to it.
In the previous debates a good deal was talked about the notorious "buggers' clubs" in which "nameless orgies" happened; and the chief object, as I understand it, of making this definition in relation to there being more than two people present was to make such orgies an offence in those circumstances and so to prevent them. Except for the remarks of the noble and learned Lord, Lord Goddard, on Second Reading, when he said that in the years he was on circuit he had come across some of these clubs, I found extraordinary vagueness when rereading Hansard. No-one was able to give examples of where these clubs were, what happened at them and so on. In fact, the noble Lord, Lord Stonham, when he was asked to do so, looked into the files of the Home Office, and found that, although there had been some cases of bad behaviour in the 1930s, so far as he could find out there had not been one case of complaint or prosecution of this nature since 1930. If that is a case, it does not seem that these alleged clubs are really a very serious menace. The noble Lord, Lord Stonham was referring to the London area; but London would be the centre of these things, if anywhere.
I confess that I am rather sceptical about the prevalence of clubs if they exist at all. I also wonder a little what
1192
goes on at these orgies. My only guide is in the rather more spectacular Hollywood films where people come and eat a lot of food and drink a lot of wine and those not incapacitated make amorous advances to their partners. That may well be splendid on the film; but it would be very squalid and unpleasant if anyone tried to reproduce this in real life. No one would wish to encourage orgies; but I would suggest that anything which was harmful in this or immoral does not justify making what is now not an offence suddenly into a crime for which a severe sentence of imprisonment would be possible.
I should like also to reintroduce, if the Committee will forgive me, the subject of blackmail, which I think is relevant here. You may get two young men of 21 or over who are indulging, perhaps, in homosexual practices. A third comes in, possibly by arrangement, sits on the bed, touches one of them and the thing becomes a crime. Blackmailers are very ingenious people, and this is a case where there could be an opportunity for blackmail. If we were to follow the principle of the Wolfenden Report, which takes the line that sin, and even immoral behaviour, are no concern of the law, but only the concern of the private morality of individuals, I think we should be on much safer ground.
The other point of concern is what exactly is going to be the connection of the police with this? Are the police to have the right to go into any house where they suspect there are more than two homosexuals? Are we to have what we have seen in the past, the police acting as decoys or agents provocateurs? All this is so repugnant to us that it would be very unwise to let this clause go as it is. I said I should speak briefly, but I sincerely hope I can persuade your Lordships to accept my Amendment, which really covers any possible case of the public being offended by these practices and in this way I think would make this a better Bill.
Amendment moved—
Page 1, line 9, leave out subsection (2) and insert the said new subsection.—(The Earl of Huntingdon.)
THE EARL OF KILMUIR: I hope that the noble Earl, Lord Huntingdon, will not

1193
press this Amendment. I would ask him to look at it from the point of view of our discussions on the last occasion, and I think it would be fair to say that the present form of the Bill was arrived at in an effort to meet various points of view, including the points of view of those who were alarmed at the possibilities which might exist. There are really two stages in the noble Earl's argument for the Amendment as it appears on the Order Paper. The first is that the Amendment says simply that an act shall not be deemed to be committed in private when it is committed in public. That was the summary of one of my noble and learned friends with regard to the effect of the Amendment. But the noble Earl has explained that he attaches more importance to the words:
"where members of the public are likely to see and be offended by it."
I do not think that one can go from that, and I do not think that the majority of noble Lords, whether in favour of the Bill as a whole or not, want to go on to the point where it would be deemed to be done in private if there were an audience of homosexuals. I do not think that was the general wish of the House.
I have listened carefully to all that the noble Earl has said, but when on this matter we have had long discussion, and after some give and take have arrived at a form of words which I think met with general approval, it would be a great pity if he sought to strike that out of the Bill and put in his own words. I would ask the noble Earl, having made his point, not to press the Amendment for these reasons.
4.14 p.m.
THE JOINT PARLIAMENTARY UNDER-SECRETARY OF STATE, HOME OFFICE (LORD STONHAM): There will, I think, be general agreement with the noble and learned Earl, Lord Kilmuir, that this part of the Bill was arrived at after a number of discussions and respresents the consensus of views so as to define what we meant and what we want as clearly as possible, ensuring the right degree of liberty for the individual combined with protection for the public. The effect of the Amendment now proposed by the noble Earl, Lord Huntingdon, would be that a homosexual act would be deemed to be done in private if it were not done in a place where
1194
members of the public are likely to see or be offended by it.
The present Clause 1(2), which the noble Earl proposes to replace in its entirety, provides that the words "in private" mean otherwise than in circumstances in which the act was seen, or might have been seen, by members of the general public. Paragraph (a) of the subsection in the Bill is intended to deal with a case where no member of the general public could have seen the act, but the act was performed in the presence of other persons—for example, it was performed in a private house by two men while a third man or other men were watching. Paragraph (b) is intended to deal with a case where only two men were involved and no member of the general public could have seen the act, but where the circumstances were such that the public conscience was likely to be outraged. It was, for example, intended to cover a case where two men committed an act in a locked cubicle, and it would clearly be objectionable if those two men were seen to enter the cubicle and their activities though not seen might well be thought to offend other persons who might be using the public part of the lavatory. The Amendment of my noble friend would substitute a test which he carefully explained and seemed to think was adequate, but it would not deal with a case where the act was done where the public could not possibly see it but in the presence of friends. Nor would it cover the case of an act performed in a locked cubicle in a lavatory. For these reasons, and more particularly for the first reason, I would join with the noble and learned Earl, Lord Kilmuir, in hoping that my noble friend will not persist in this Amendment.
THE EARL OF ARRAN: Once again I find myself in, as it were, moral sympathy—if I may use the word "moral" in this concept—with the noble Earl, as I said before when I thought he showed great courage in pressing us to a Division even though the majority was very much against him. On the other hand, from a practical angle, I agree entirely with my noble and learned friend Lord Kilmuir. We had a tremendous "go" over this about a year ago. We had tremendous difficulty in deciding what was meant by "public" or "in private." At the end of the discussion an Amendment

1195
moved by the noble and learned Viscount, Lord Dilhorne, found favour with your Lordships and the Bill now reads as it does.
The noble Earl, Lord Huntingdon, now seeks to gain a more general definition in saying that a homosexual act shall not be deemed to be done in private if it is done in a place where members of the public are likely to see and be offended by it. I see the intention behind that, and if we had to decide on it I suppose that I should have to vote in the "Aye" Lobby because, in principle, I think it is probably correct, or the principle is correct. But surely the proposed drafting is too vague, too permissive, too broad. Who can say what act is likely to be seen by members of the public? As the noble Lord, Lord Stonham, has said, I hope that the noble Earl will not press the Amendment. I do not think we want to go over all this business again. The House expressed itself pretty categorically last time, and I do not think anything is to be gained by further discussion, any more than anything was gained by discussion over the age of consent. But that is for your Lordships to decide. It may be that there are some of your Lordships who will wish to support the noble Earl in his Amendment.
THE EARL OF HUNTINGDON: It seems that on this Amendment I have not much support, but I still feel convinced that it would be an improvement, and I do not see why in this respect homosexual acts should be completely separate from heterosexual acts. However, as the Committee seem to have the feeling that we have decided to compromise, I do not intend to divide, and I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 1 shall stand part of the Bill?
LORD STONHAM: Your Lordships will recall that on Second Reading of the Bill the noble and learned Earl, Lord Kilmuir, my noble friend Lord Simon and other noble Lords, raised the question of the position of merchant seamen if this Bill became law in its present form, and in particular the position of masters of merchant ships in relation to
1196
members of the crew. I promised to look into the matter and take advice before Committee stage and to inform your Lordships of the outcome. The position is that I have discussed with my legal advisers and Parliamentary counsel whether the Bill needs amendment to protect the disciplinary powers of the master of a mechant ship to deal with homosexual acts. Our conclusion is that no amendment of the Bill is necessary.
The Common Law power of the master is understood to be to arrest and confine in a reasonable manner for a reasonable time any seaman or other person on his ship if he has reasonable cause for believing, and does in fact believe, that the arrest and confinement are necessary for the preservation of order and discipline or for the safety of the vessel or persons or property on board. The view taken by Parliamentary counsel, whom I have consulted—and it is contrary, I agree, to the view publicised by the seafarers' and shipowners' organisations—is that the passing of Lord Arran's Bill would not affect this power; that is to say, there is nothing in the Bill to remove any discretion the master now feels able to exercise to invoke his Common Law powers to deal with a person committing a homosexual act on board his ship, because if the homosexual act threatens order and discipline or the safety of the ship, it will not cease to do so if the Bill declares it no longer to be an offence.
The Board of Trade were mentioned in our discussions on Second Reading, and I also am empowered to say that the Board of Trade are now content to leave the Bill unamended in Committee. However, if any noble Lord should feel it necessary to move an Amendment declaring the master's Common Law powers to be unaffected, it can be introduced at a later stage. It is right for me to say now to your Lordships that, in the opinion of Parliamentary counsel, the effect of such an Amendment would be nil.
THE EARL OF KILMUIR: Would the noble Lord be good enough to make this quite clear to me. Does this mean he is advised that the master still has the right to discharge a seaman under ordinary articles for a homosexual act?
LORD STONHAM: The noble Earl will be aware that there are differences

1197
in the master's powers in respect to discharge relating to the port at which the master may discharge a man. If it is an overseas port, he cannot take action without the approval and consent of the British consular representative. The only point at issue, and the only point raised on Second Reading, was whether, if we pass this Bill into law, making the position that homosexual acts by consenting adults in private were no longer offences, this would weaken or destroy the disciplinary powers of the master of a ship. What I have now given is an opinion that that is not the case, because the disciplinary powers are in respect of the maintenance or order and discipline for the safety of the vessel or persons or property. On those counts, the master's position will not be affected by the passing of this Bill in its present form.
THE EARL OF KILMUIR: I put the question first because I wanted to have the point clarified. I should like to say how grateful I am to the noble Lord for making the statement. I think he will agree that the point is one of considerable seriousness, and speaking for myself (and I should think probably for the other noble Lord and the right reverend Prelate who took part in the discussion) should like to study with all the care it deserves the statement made by the noble Lord, Lord Stonham. I will do this, and I will let the noble Lord know before the Report stage whether I am in any difficulty. No doubt he will also hear from the various societies who are interested in the same point. But I repeat that we are grateful to the noble Lord for bringing the statement before us to-day.
LORD CONESFORD: I should like to raise one point with the noble Lord, although it may be more convenient that I should raise it in the discussion on the Amendment which will be moved later by the noble Baroness, Lady Wootton of Abinger. The noble Lord has mentioned the effect of Clause 1 on certain matters of Common Law. I wonder whether he would regard it as convenient to answer now the question which interests me very much, namely, whether Clause 1 of the Bill affects a Common Law conspiracy to corrupt
1198
public morals. I am thinking of such a case as the leading case of Shaw v. The
Director of Public Prosecutions, decided by the House of Lords in 1961. I wonder whether that type of case will be in any way affected by Clause 1 as it now stands.
LORD STONHAM: No, my Lords; it will not be affected. As the noble Lord, Lord Conesford, said, we shall be discussing this in greater detail at a later stage, and I hope I shall be able to satisfy him on the point. But the precise point of Shaw v. The Director of Public Prosecutions was that the offence there committed was the actual publication of prostitutes, and the conspiracy arose out of an act which became public through publication. I should like to deal with that point in greater detail later on.
May I say that I am grateful to the noble Earl, Lord Kilmuir, for what he has said. But I should like finally to say (although unquestionably the opinion that I have expressed on the advice given to me will be carefully considered by the noble Earl and others interested) that if for the removal of doubt any noble Lord wishes to make an Amendment, the offer that I made in the last Parliament for drafting help on any matters of this kind is still open, and it might be advisable, if it is thought necessary to move an Amendment despite the fact that I have expressed the opinion that it would have no effect, if we get together on the question of drafting to avoid the possibility of delay which might occur.
LORD CONESFORD: May I ask the noble Lord if that offer applies to those who are interested in the law of conspiracy to corrupt public morals? In the event of my thinking it advisable to put down an Amendment, I wonder whether I could have the advice and help of Parliamentary draftsmen.
LORD STONHAM: The position is that in this Bill we should be prepared to give drafting assistance on matters which are expressing your Lordships' views. As I have said many times, the Government take a neutral attitude to this Bill, but it would obviously be helpful to your Lordships, and to the House in general, if, in expressing a view, we could express ourselves in proper terms, rather than obliging me to say, "The principle

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of this is all right, but the mechanics are no good".
Clause 1 agreed to.
THE CHAIRMAN OF COMMITTEES: The Tellers for the Not-Contents in the first Division which took place in your Lordships' House this afternoon have informed me that the number of those voting "Not-Content" should have been 78 and not 77, as reported to the House.* They hope the House will accept this correction with the Tellers' apologies.
Clauses 2 to 8 agreed to.
4.31 p.m.
BARONESS WOOTTON OF ABINGER BARONESS WOOTTON OF ABINGER moved, after Clause 8, to insert the following new clause:
Conspiracy
"It shall not be an offence to conspire or attempt to commit a homosexual act which by virtue of this Act is not itself an offence."
The noble Baroness said: I am well aware that anyone who is not a lawyer and who ventures to dabble in the law of conspiracy is inviting trouble, but I speak for a large number of laymen who want to be perfectly clear that if an act ceases to be a criminal act, it shall not be a crime to conspire to perform that act or to attempt to perform it. We are still a little disturbed by the possible consequences of the Ladies' Directory case, and the words used in that case by the noble and learned Viscount, Lord Simonds, still sometimes ring in our ears. He said:
"Let it be supposed that at some future…date homosexual practices between adult consenting males are no longer a crime. Would it not he an offence if, even without obscenity, such practices were publicly advocated and encouraged by pamphlet or advertisement?"
The noble and learned Lord went on:
"…if the Common 12w is powerless in such an event we should no longer do her reverence."
The noble and learned Viscount is there referring to conspiracy in a rather wider sense than my Amendment, which refers only to the conspiracy to perform the act as distinct from advertising or flaunting it.
But I am also disturbed at some observations made by the noble and learned Lord, Lord Devlin, in his recent
* See col. 1182.
book on The Enforcement of Morals, where he said:
"If, for example, a man and a woman were charged with conspiracy to corrupt public morals by openly living in sin, a jury might be expected to acquit. If homosexuality were to cease to be per se criminal and two men were to be similarly charged with flaunting their relationship in public, a jury to-day might be expected—I think this is what Lords Simonds and Tucker would contemplate—to convict. The distinction can be made only on the basis that one sort of immorality ought to be condemned and punished and the other not. That is a matter on which many people besides lawyers are qualified to speak and would desire to be heard before a decision is reached."
I speak as one of the people besides lawyers who desire to speak on this, though I do not know that I also rank as qualified to be heard.
Your Lordships will notice that the Amendment which I am proposing to-day is narrower than that put forward when the Bill was before the House in the previous Parliament. We have omitted any reference to procuring, and we are simply asking that it should be made abundantly plain to ordinary people that, if an act becomes no longer criminal, then persons who wish to engage in these acts shall be no more subject to the criminal law than persons who choose to live in heterosexual relationship outside matrimony, even if it is well known that this relationship exists. The matter of conspiracy was raised when the Bill was before this House in the previous Parliament, and my noble friend Lord Stonham undertook to look into it. The matter was raised again by the noble and learned Viscount, Lord Dilhorne, on the Second Reading of this Bill, and my noble and learned friend Lord Stonham promised to look into it.
I am now asking my noble friend Lord Stonham whether he will be good enough not only to look into it, but to look out again and to tell us what the results of his inquiries have been. He will know that the Amendment is restricted, and he will know that the only reason for it is this desire of ordinary persons to be assured that they are not liable to be convicted of an offence if they are proposing to do, and making it perfectly plain that they are proposing to do, an act which is not in itself criminal. I beg to move.
Amendment moved—
After Clause 8, insert the said new clause.— (Baroness Wootton of Abinger.)
LORD CONESFORD: It may be convenient if I raise this point before the noble Lord, Lord Stonham, comes to reply. I think the purpose of the noble Baroness in moving her Amendment is to create greater certainty of what is the effect of the Bill when it is passed. With that purpose I wholly sympathise. I think it is very desirable indeed, not merely by the time this Bill becomes law (if it does) but by the time it leaves this House, that we should be fairly clear what the effect is.
The matter that puzzles me is this. I agree with the noble Baroness in what she has said on the limited nature of what she lays down in her Amendment, on which I also look forward to hearing the views of the noble Lord, Lord Stonham. But if she has in mind to remove the far greater uncertainties about the effect of the Bill on a Common Law conspiracy to corrupt public morals, I am bound to say that, in my opinion, her Amendment does not succeed in that object. The likely conspiracy, should this Bill become an Act, is not the conspiracy which she has described in her Amendment, but a quite different kind of conspiracy. Let me put it in this way. Those who have spoken in favour of this reform have been actuated to a great extent by their desire to do something compassionate and merciful to an unfortunate class of the community, to those who have not normal sexual desires. That, I think, is a purpose which commands a great deal of support.
But there is, of course, another possibility when this Bill becomes law, if we have not provided against it and if we have destroyed the Common Law on this subject. We may be giving protection to the propagation of a cult which would not, I know, command the support of most supporters of this Bill. If there were a club formed to promote homosexual practices, to say that they were a desirable form of activity, and in pursuance of their general intention they published a directory of practising homosexuals, that, I have no doubt—at least I have very little doubt—would constitute under the present law a Common Law conspiracy to corrupt public morals.
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We want to be quite clear whether we want that power of the Common Law to restrain such activities to survive or not. The noble Lord, Lord Stonham, was good enough to say to me, in response to my previous speech on the Question that Clause 1 stand part, that we might test this at a later stage by putting down an Amendment, in the drafting of which I could have the skilled advice of Parliamentary draftsmen. I think I shall attempt to test it by putting before the House a clause that expressly maintains the Common Law right to prosecute a conspiracy to corrupt public morals, and similar things to that.
I rather agree with the noble Baroness, Lady Wootton of Abinger, that there are passages in the decided case of Shaw v. The Director of Public Prosecutions, and perhaps in the book she quoted, which make many people desire that the law should be rather more certain; but I thought it was right to say to the noble Lady, because I respect and honour her desire to make this Bill more certain, that, if it was her desire to deal with a Common Law conspiracy of the kind I have described, I do not think she has succeeded in doing so.
The two points I wish to put to the Minister, are, first, whether he thinks that, either after carrying the noble Lady's Amendment or rejecting it, this Bill will have the effect of doing away in this field with the possibility of stopping such a Common Law conspiracy. In his intervention the noble Lord said that the important thing in that particular case I quoted was the question of publication. That may be. I have the reported case here, but I do not propose to trouble the Committee with any of the details. I think the noble Lord, Lord Stonham, and the noble Lady, who has certainly studied this case, will know that very much wider issues are in fact raised by that decision.
LORD STONHAM: I am most grateful for what the noble Lord has said, and it makes me a little apprehensive because, being mindful of what my noble friend Lady Wootton of Abinger said happened to laymen who dabbled in the law of conspiracy, asking for trouble, I thought my troubles at least would have ended at the Committee stage rather than that they would be prolonged. I will set your Lordships' minds at rest. My noble

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friend inadvertently conferred on me the title of "learned": but I am a layman. I have not asked for this trouble at all; it has been thrust upon me.
I hope your Lordships will bear with me while I try to elucidate what is, I admit, a very difficult case to make clear. My noble friend's Amendment deals with two unconnected matters: first, conspiring to commit a homosexual act which is not an offence; and second, attempting to commit a homosexual act which is not an offence. In both cases my noble friend wishes to secure that the activity is not an offence. I would assure her at once that this is the effect of the Bill as it now stands. As we have been told, and as I am sure everyone will agree, the law of conspiracy is a difficult branch of the criminal law, and it is not easy to state in simple terms the principles involved. The usual definition of the crime of conspiracy it that it is committed when two or more persons agree to pursue an unlawful purpose or a lawful purpose by unlawful means. But it is necessary to look at the decisions of the courts to discover the limitations of that definition.
The cases make it clear that there must always be a public element in the conspiracy for it to be a crime. Thus, Lord Alvestone, giving judgment in a case about conspiracy, distinguished between
"acts which are merely improper or immoral and those which tend to produce a public mischief".
It may help to give an actual example. In one case the accused were convicted of conspiring to procure a girl to become a common prostitute. The defence that prostitution itself is not an offence failed, the court deciding that there are many unlawful things which are not the subject of criminal proceedings. But there is no case in which a man has been convicted of conspiring with a prostitute to have intercourse with her: the distinction being that in the former case there was a conspiracy to procure a girl and therefore public morality was involved, but in the relationship between a man and a prostitute only private morality was involved. Similarly where the alleged conspiracy is an agreement between A and B that they shall commit homosexual acts together, that agreement does not affect public morality but is a matter of private morality only.
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So far I have dealt solely with my noble friend's Amendment on what I might call the narrow issue, but at this point I think I can give the categorical assurance for which my noble friend asked, and in those circumstances I hope that at the end of the debate she will feel able to withdraw her Amendment. I should now like to deal, as it has been raised both by my noble friend and by the noble Lord, Lord Conesford, with the wider issue in principle, because the noble and learned Viscount, Lord Dilhorne, in the Second Reading debate, as your Lordships may recall, asked me specifically whether it would be a "conspiracy to effect a public mischief" for a number of people to engage in promoting homosexual acts between consenting adults. I think it was something like the buggers' clubs to which my noble friend Lord Huntingdon referred on an earlier Amendment.
We have considered this precise point with Parliamentary counsel, and our view is that if an agreement was made between two persons in private to commit a homosexual act in private there would not be an offence of conspiracy. But, at the other end of the scale, a conspiracy on the lines of that prosecuted in the case to which the noble Lord, Lord Conesford, has referred, Shaw v. The Director of Public Prosecutions—the "Ladies' Directory" case—was based on the actual publication of a directory of prostitutes, and therefore it became, as it were, a public offence. Somewhere in between there is obviously a dividing line, and this, of course, would have to be decided by the courts in individual cases.
Broadly speaking, we think that an agreement to promote homosexual acts would not amount to an offence of conspiracy unless there was some public affront involved. If the arrangement were such as to create a public scandal or a public outrage then this would amount to an offence of conspiracy, but not otherwise. As I have said, the standard definition of the crime of conspiracy is that it is committed when two or more persons agree to pursue an unlawful purpose or a lawful purpose by unlawful means. An agreement to do acts which, though not breaches of law, are outrageously immoral or extremely injurious to the

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public may constitute an agreement to pursue an unlawful purpose, but in none of the cases decided by the courts has purely private behaviour been held to constitute an unlawful purpose. In the "Ladies' Directory" case itself, the judgments of the Law Lords showed that though they were prepared to use the offence of conspiracy to safeguard morality, they were thinking in terms of public and not private morality, and therefore of immoral acts likely to reach and affect the public at large. The actual act on which the conspiracy charged in that case was based was, of course, the publication of a directory of prostitutes.
It so happened that at that time, before the prosecution, I was president of the Josephine Butler Society, and the noble Earl, Lord Bathhurst, then Under-Secretary at the Home Office, would sometimes consult me on publications; and this was one of them. This was one which I, in my lay and uninformed capacity, thought was an affront of the public, and partly because of that, in due course, prosecution was instituted; and it was, of course, upheld in the courts. On this particular issue, the one now before this Committee, it can be asserted with confidence that a private agreement between adult males to commit homosexual acts in private will not constitute an offence if the Bill becomes law. I apologise for being somewhat long over this point, but I thought it might be useful if we could discuss it thoroughly and put the issue beyond doubt.
BARONESS WOOTTON OF ABINGER: I am very grateful to my noble friend for his unqualified assurance that we are not likely to be in trouble on the narrower issue raised in my Amendment. I am sure he will accept that the inadvertence of my style of reference to him was due to subconscious respect of the skill with which he deals with these difficult matters. On the wider issue of the Common Law on conspiracy, I confess that I view the possible ambits of this with some alarm, and I think it is quite clear, from the quotations from Lord Devlin that I have already read, that there is the possiblity of different interpretations of this law. I would only add to that one further opinion, that of Professor Herbert Hart, when he drew the inference, from the decision in Shaw's case that is it open to
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the courts, under the doctrine of this decision, to do what Parliament has not done. Since, however, the noble Lord, Lord Conesford, is proposing to test this out by an Amendment which deals specifically with this wider issue, I am prepared at this stage to withdraw by Amendment.
Amendment, by leave, withdrawn.
Clause 9:
Short title, citation, interpretation, saving and extent
9.—
(5) Nothing in this Act shall affect liability to conviction, or the punishment which may be imposed, for any offence committed before the passing of this Act.
4.56 p.m.
LORD FARINGDON LORD FARINGDON moved to leave out subsection (5). The noble Lord said: When I read this subsection I could not believe, and I still do not believe, that it in fact means what it says, and it is on that account that I have put down this Amendment. It is inconceivable that it should be proposed in the present Bill that those who have been guilty of homosexual acts at present liable to be punished should still be liable to punishment after the passing of the Act. This seems to me something so odd and so extraordinary that I am quite certain there has been some misarrangement of the words which has removed the intended meaning. As the Bill stands, it would be unjust, unfair, cruel; and I am quite certain that neither your Lordships' House nor those who drafted the Bill had any such intention. I beg to move.
Amendment moved—
Page 5, line 18, leave out subsection (5).—(Lord Faringdon.)
LORD STONHAM: My noble friend's Amendment does in fact draw attention to what may be a defect in the Bill. It would appear that subsection (5) of Clause 9 in its present form would allow a person to be convicted after the Act comes into force for homosexual conduct committed earlier though under the Act such conduct had ceased to be an offence. My noble friend Lord Faringdon, probably out of a sense of indignation, did not go into this matter in any detail, but there is another side of the coin. He proposes complete omission

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of the subsection. His Amendment is therefore not satisfactory, because the main purpose of this unfortunate subsection is to ensure, in cases where the maximum penalty is increased under the Bill, that no person shall be liable to a higher penalty than that which applied at the time the offence was committed.
LORD FARINGDON: It is not what it says.
LORD STONHAM: But that is what it says to a lawyer; and that is a great advantage lawyers have in these matters. What the subsection means is, in fact, a well-established principle in legislation altering penalties. And by carrying an Amendment to leave out the whole of this subsection my noble friend Lord Faringdon would remove this safeguard. I would therefore suggest to him that he might be willing to withdraw his Amendment, on the understanding that, with the agreement of the noble Earl, Lord Arran, and the co-operation of my noble friend Lord Faringdon, and such unworthy citizens as we can get to help us, we will redraft this subsection before Report stage to ensure that no person will be liable to be convicted after the Act comes into force for conduct which is no longer an offence.
LORD FARINGDON: I thank my noble friend very much for his reply. In effect, what we are going to do is to say the opposite to what is said now. I thank the noble Lord very much indeed for his helpfulness and kindness, and I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Remaining clause agreed to.
House resumed: Bill reported without amendment.
THE EARL OF ARRAN: My Lords, there being no Amendments, may I move that this Report be now received.
Moved, That the Report be now received—(The Earl of Arran.)
LORD CONESFORD: My Lords, does that mean I cannot put down an Amendment on Report'? I do not know whether the Minister would say what he thinks is the most convenient course. I do not want to delay matters unnecessarily, but I think a matter of some importance has been raised.
LORD CHAMPION: My Lords, the point of the noble Lord is an important one, but there would be nothing at all to prevent his putting down Amendments on Third Reading.
On Question, Motion agreed to.

ABORTION BILL [H.L.]
5.0 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 Silkin.)
On Question, Motion agreed to.
House in Committee accordingly.
[The EARL OF LISTOWEL in the Chair.]
Clause 1:
Medical termination of pregnancy
1.—(1) Subject to the provisions of this section, a person shall not be guilty of an offence or crime of abortion by reason of the termination of a pregnancy by a registered medical practitioner if the practitioner is of the opinion, formed in good faith, that the termination of the pregnancy is necessary on any one or more of the following grounds, that is to say—
(b) there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to deprive it of any prospect of reasonable enjoyment of life;
or that the pregnant woman is a defective or became pregnant while under the age of sixteen.
(2) Except in a case where the practitioner is of the opinion, formed in good faith, that the termination is immediately necessary in order to save the life of the pregnant woman (and certifies his opinion in writing either before or after carrying out the treatment), the following conditions must be complied with in connection with any treatment for the termination of a pregnancy, that is to say—
(a) the treatment must be carried out by a practitioner who holds an appointment as registrar or in a superior capacity under a hospital board, being an appointment involving the practice of gynaecology;
(c) the opinion mentioned in subsection (1) of this section must be certified in writing by the practitioner who carried out the treatment before the treatment is begun;
(e) there has been before treatment an application in writing by the pregnant woman, or, if under sixteen years of age, of the pregnant girl and one of her parents or of the pregnant girl and her guardian for the termination of the pregnancy.
LORD BRAIN LORD BRAIN moved, in subsection (1)(b), to leave out all words after "as to" and insert "be seriously handicapped". The noble Lord said: This Amendment does not in any way conflict with the spirit of the Bill; it merely attempts to make its intention clearer, and therefore easier to carry out. In my view, it is an impossible task for a doctor to decide what constitutes reasonable enjoyment of life for an unborn child. Not only is it impossible, but, if it could be carried out, if might well conflict with what I understand to be the intention of the noble Lord, Lord Silkin, and other supporters of this Bill.
One thing which I am sure is in their minds is the reasonable fear of parents. in certain circumstances, that a child may be born to them who is severely handicapped, physically or mentally. But the test of the prospect of a reasonable enjoyment of life is not an adequate test of the prospect of serious mental or physical handicap. A mentally subnormal child whose existence is a continuous cause of stress to its parents may, nevertheless, so far as one can judge, be perfectly happy—indeed, happier than many normal people—just because its mental state shields it from the stresses and distresses to which normal people are exposed. Moreover, whereas the prospect of reasonable enjoyment of life is not something which a doctor, in my view, is capable of calculating, he is perfectly familiar with the concept of serious mental or physical handicap. I beg to move.
Amendment moved—
Page 1, line 17, leave out from ("to") to end of line 18 and insert the said words.—(Lord Brain.)
LORD SILKIN: I am most grateful to the noble Lord for having moved this Amendment. I am quite satisfied that it is an improvement on the wording of the Bill and I am happy to accept it.
On Question, Amendment agreed to.
LORD SILKIN LORD SILKIN moved, in subsection (1), after paragraph (b), to insert:
"() the pregnant woman's capacity as a mother will be severely overstrained by the care of a child or of another child as the case may be;".
The noble Lord said: This is the third attempt that I have made—I hope this
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time a successful attempt—to introduce into the Bill a concept which I think most of your Lordships would like to have in the Bill. It is the concept of a woman who is pregnant, and who feels that she is unable to cope with the child when born or with another child. I have in mind particularly the case in regard to which I have had so much correspondence, that of the woman with a large family, some of them grown up, who finds herself pregnant at the age of 40 or more, and who feels that life will be impossible with another child which, once more, she has to rear. In some cases she may even be a grandmother. Such a woman is quite unable to give such a child the care and attention that it should have, or to bring it up as it should be brought up. She is the judge of that.
There are some women who have had large families and who can quite well cope, and no difficulty arises. But where a woman herself feels that she cannot cope—I would submit that she is the best judge of that—she should be entitled to go to her doctor and, if he is satisfied, and the consultant is satisfied, that it is the case that she would be severely overstrained by the care of a child, then it should be possible for her to get an abortion.
I am not now, as I did earlier, putting forward the case of a woman of bad character or inadequacy. In deference to the views of the House on an earlier occasion, I have withdrawn from that. It is now largely a physical matter. It is not a case of a woman whose life is endangered, or who would be gravely affected in health by having another child; it is simply the case of a woman who feels that she just cannot cope and cannot do justice to another child, or, in special cases, even to one child. But in all these cases she has to satisfy two doctors. She has to make the application and, if having regard to her condition and her circumstances they are satisfied that she is not in a fit state to do justice as a mother, then I submit that that is a proper case for an abortion.
I think in the earlier cases there was the difficulty, which I recognise, that one was asking the doctors to judge on the basis partly of a woman's character. I gave certain instances which were, I

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know, ridiculed—unfairly, because the strong cases were not referred to at all—but these are eliminated now from the provisions of my Amendment. There is now no question of a woman being inadequate because she is a woman of bad character. That is quite irrelevant, and it is not for the doctor to go into that at all. All he does go into is the woman's physical condition, her mental condition, her environment, and generally whether she is fit to take care of a child and to do justice to it when born. I hope that this new, modified, much milder Amendment will be acceptable to your Lordships. I beg to move.
Amendment moved—
Page 1, line 18, at end insert the said subsection.—(Lord Silkin.)
LORD GRENFELL: Surely this Amendment is the "inadequacy" Amendment in other words. Who really is going to tell whether a pregnant woman's capacity as a mother can be severely overstrained? if it is severely overstrained, surely it comes under subsection (1)(a); and if there is any danger to the health of the mother it will come under that paragraph. This Amendment seems to me to be far too wide, and to be exactly the same as a previous Amendment put in other words, and I hope that it is not accepted.
BARONESS WOOTTON OF ABINGER: I should like modestly to congratulate my noble friend, and to hope that he will be third time lucky. He says that this is the third attempt that he has made to find a form of words which will not be open to the objections made to the previous inadequacy Amendment. I think the crucial difference between this and the previous Amendment was shown when my noble friend spoke entirely in terms of the woman's own decision. She, he said, will be the one to judge. The whole of his speech in commending his Amendment started from the woman's own wish to have an abortion. The earlier "inadequacy" Amendment was quite open to the construction that some other person would make this decision—namely, that the doctors concerned would make the decision—and that the woman herself would be a mere passive, consenting party. There is a very great difference between the two forms of
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words, and I do not share the fears of the noble Lord, Lord Grenfell, that this is the old story in a new form.
BARONESS SUMMERSKILL: May I suggest this point also? One does not want to repeat what one said last time, but I ask your Lordships to consider this aspect as well. The noble Lord who has just spoken said, how can the mother decide whether or not she is an adequate mother? It will not take many experts to decide; there are friends and welfare officers surrounding her to decide whether the mother or the home is adequate. We must realise that the inadequate mother also may stem from an inadequate home—it is overcrowded, she is burdened perhaps by too many children, and feels she is quite incapable of doing justice to them all. We should also consider the lot of the child. If this Bill gets on the Statute Book with this Amendment, I feel that it will be a contribution to our social services calculated to save an unwanted child from misery, and possible delinquency. I believe it is the birthright of a child to be wanted. Not for one moment do I suggest that this Bill, limited as it is, will achieve this, but it will go some way to remove the distress of children compelled to join an already overcrowded household.
I believe that we have a moral obligation to help children to fulfil themselves. Should not our obligation become extended to the unborn child? I regard it as sheer hypocrisy, indeed humbug, to spend colossal sums on welfare services, reformatories, prisons, to produce reports ad nauseam on the psychological effects of a bad home on a child, and yet to acquiesce in a system which denies relief to an over-burdened expectant mother, who knows that she is quite incapable of doing justice to another child. Therefore, I hope that in accepting this Amendment your Lordships will recognise that we have a duty, not only to the mother who asks for this relief but to the unborn child.
LORD DENHAM: Like my noble friend Lord Grenfell, I very much hope that your Lordships will not accept this Amendment. I very much agree with the noble Baroness who has just sat down that we have a duty to the unborn child. Surely the general feeling in the Committee towards this Bill has been that abortion should be allowed only in cases

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where it was the only solution for the welfare of the mother or of the child. In any case that I can foresee coming under this new Amendment, surely the adoption of the child would be a very much better solution. I am told that at present the numbers of people who want to adopt children amount to very much more than the children to be adopted. If a child is conceived by a perfectly healthy mother and there is no reason why the child itself should not be healthy, surely in such cases adoption of the child is a very much better solution.
5.13 p.m.
LORD OAKSHOTT: If I might intervene for one moment, I am grateful to the noble Lord, Lord Silkin, for his efforts to substitute an Amendment which is better framed than was the one dealing with inadequacy in the Bill before the last Parliament, but I am still doubtful about the wording. I wonder how the word "capacity" is to be interpreted. It seems to me that this may suffer to some extent from the same defect as the word "inadequate" did in the Bill which was before your Lordships in the last Parliament. For this reason I am doubtful about this Amendment. But I have another reason—if I may say so, with sincere deference to the noble Lord to whom so many people are grateful for his efforts to bring about a reform of this archaic law. In regard to this Amendment, if the noble Baroness, Lady Wootton of Abinger, is right that this amounts to abortion at will—which I think is what she indicated; "according to the wishes of the mother", I think were her exact words—if that is the correct interpretation, it will make it difficult for some of us who are genuine supporters of the Bill, because that is a limit beyond which I, personally, could not go. I could not accept that we should be legislating in this Bill for abortion at will of a mother.
BARONESS WOOTTON OF ABINGER: I think I ought to make it plain that I was not reading this Amendment as making possible abortion at will. What I wanted to emphasise was that it would he abortion at the request of the mother in certain restricted circumstances. These circumstances are described in successive clauses of the Bill. Outside those circumstances abortion would not be legal. I ought to add that my support of this
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Amendment has, to some extent, been conditioned by what happens to a later Amendment standing in the name of the noble Lord, Lord Royle. If that Amendment is carried, I should feel very uneasy about the present one; but, since that Amendment is subsequent, I shall at the moment give my support to the present one.
LORD FERRIER: As one of the supporters of the clause in the original Bill which contained the word "inadequacy", I can only say that I strongly support this Amendment which has been moved by the noble Lord, Lord Silkin. I appreciate, as I am sure do all noble Lords, that he has gone a great way to meet the objections which were raised to the wording in the original Bill. But, unless I have missed it, I think that no mention has been made of one of the serious problems which faces society at present, and that is illegal abortion. As Lord Silk in said on Second Reading, the vast majority of letters which he has received upon the subject from women concerned have been very much in line with this suggested Amendment.
Noble Lords will remember reference in the debate in the last Parliament to the work of Sir Dugald Baird in Aberdeen, and I recall a speech by the noble Lord, Lord Taylor, in which he pointed out that the situation in Scotland was, in a measure, different from the situation in England and Wales. If I remember his remarks correctly, he said that it must be remembered that in Scotland a doctor does not operate under the shadow of the coroner. That being the case, the fact is that what is set out in this Amendment is what is actually taking place in an area in Scotland, where figures show that the illegal abortion rate has gone down to such an extent as almost to have disappeared. If only for that reason, I will support the noble Lord's Amendment.
LORD SEGAL: As one who is in sympathy with the purpose of this Amendment, may I say that I am still not happy about its actual wording. By accepting this Amendment we are introducing a new criterion as grounds for abortion; in other words, a criterion which may be subject to fair representation or to misrepresentation. We are adding as additional ground for abortion

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a woman's capacity as a mother. That, to my mind, may be interpreted very widely, and, as I say, I am fully in sympathy with the motive of the Amendment. But are we justified in adding, at this stage, a new additional ground for performing an abortion? If my noble friend Lord Silkin would forgive me, I should like to suggest that the wording of this Amendment might have been considerably improved if his provision had been, "the pregnant woman's health would be severely overstrained by the care of a child or another child". I think that there we are going along on an absolute basis for judging grounds for abortion. But here, although I am fully in sympathy, I am a little uneasy as to the degree to which these words "woman's capacity as a mother" may be liable to misinterpretation.
VISCOUNT ST. DAVIDS: I rise to support this Amendment. It seems to me that the word "capacity" here is very specific and covers what one might well call the classic case; in fact, the case which has actually entered the nation's folklore in the shape of the old woman who lived in a shoe. There, surely, one had a case of a woman who, to begin with, was too old for childbearing, who was very badly housed and who had too large a family. Surely, these are all criteria which would be considered in the matter of an abortion. If we can, with the aid of an Amendment of this kind, diminish this ill which has got into our folklore, it will be very well worth while.
LORD AMULREE: I very much hope that what has been said in this debate to-night will encourage the noble Lord, Lord Silkin, not to press this Amendment. I think that the point is covered by paragraph (a) of subsection (1). I feel that if we are going to put down more and more criteria for the performance of legal abortions we shall make the law more complicated in the future than it is at the present time. The case has been mentioned of Sir Dugald Baird, in Aberdeen, and it has been said that he was able to do his work because in Scotland doctors did not operate with the fear of the coroner. That may be true, but it is certainly the position in England as
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well. I have had one or two friends—one, in particular, who unfortunately died the other day—who did in one part of London exactly the same kind of work as Sir Dugald Baird was doing. There was certainly no fear of the coroner in my friend's mind, and certainly, I am sure he would feel, as other people would feel, that it is not necessary to be too specific in covering abortion, and that the problems which have been mentioned in connection with this Amendment are really covered by paragraph (a).
VISCOUNT BARRINGTON: I should like very strongly to support what the noble Lord, Lord Grenfell, has said. I do not believe that this Amendment is a help, for the reason that I think the debate has clearly shown that we are not agreed about what is meant by "capacity". "Capacity" is a very useful word—I might say a capacious word. As the noble Viscount said, it covers a great many things, including the case of the old woman who lived in a shoe. But while I know for certain what I mean by the capacity of a cathedral, I am less certain what is meant by the capacity of an architect. Does it mean ability to design a lot of cathedrals all bad, or one good one? In other words, if "capacity" is applied to an architect, does it mean capacious or capable; and, if the latter, in what sense is he capable?
I think there are two possibilities. If this is a matter of health, and a doctor thinks that a woman should be capable of bearing a child, he may be wrong. Doctors frequently are wrong, but it is their duty to make decisions on matters of health. It is not their duty to make decisions on matters of who is a capable mother, in the sense of being a good mother. A doctor is entitled to tell me whether I have good kidneys. He is not entitled, certainly, to eliminate me from this planet on the grounds that I do not have a good record as a social reformer or a good degree at a university. I think that we must be very careful, if we are trying to make the law clear. As she always does, the noble Baroness, Lady Summerskill, made what to me was an extremely moving speech, but it was on a slightly different subject—the rights of the unborn child to be aborted. She was using the word "inadequate" and, I think, supporting what was said by the noble Lord, Lord Grenfell, in that he

1217
thought this Amendment was an attempt to bring the same meaning into another word.
I believe that if we decided that abortion should be a spiritual matter of capacity, or else a matter which only doctors were entitled to decide, we should in either case get a more satisfactory word than "capacious", which may mean one or the other. I very much admire the persistency and complete integrity of the noble Lord, Lord Silkin, in trying to get a word which satisfies, but I feel that this word would satisfy no one.
THE LORD BISHOP OF NORWICH: As the only occupant of this Bench able to come to this debate this afternoon, I very much hope that the arguments put in the hope that the noble Lord, Lord Silkin, will not press this Amendment may gain the support of the House. The views as expressed by the noble Lords, Lord Segal and Lord Amulree, seem to me to represent a very strong case for resisting this Amendment.
LORD SILKIN: I do not feel at all that the discussion which I have heard justifies my withdrawing the Amendment. I have listened very carefully, and, frankly, if I had been convinced, I should have been quite prepared to withdraw it; but I am certainly not convinced. Two noble Lords have put forward the argument that this point is already covered by subsection (1)(a). If this is already covered, then I take it that they are in favour of the principle but consider the Amendment unnecessary.
Let me just read out what subsection (1)(a) says, and see whether it is covered, because they are right that we do not want any duplication in this Bill. The words in paragraph (a) are:
"the continuance of the pregnancy would involve serious risk to the life or of grave injury to the health whether physical or mental of the pregnant woman".
It is not part of my case that in this Amendment I am dealing with cases where there is a grave risk to the life of the mother, or grave injury to her health. I am putting forward an entirely different reason for this Amendment; and that is that the woman just could not cope with another child; that, in the words of the Amendment, her "capacity as a mother will be severely overstrained." So I hope that the noble Lord, Lord Grenfell, who
1218
appears to favour the principle, and the noble Lords who supported him, will feel that subsection (1)(a) does not, in fact, cover the case I have in mind.
Then there was some criticism of the word "capacity" and one noble Lord tried to translate that into capability: that it refers to a woman who is not capable. That is not my point either. Whether or not she is going to be a capable mother is beside the point. There are a great many mothers who are not capable, in the sense of being good mothers. This is a case where she is going to be severely overstrained by the care of a child, regardless of her capability. She may be a very capable woman indeed, but she just cannot cope; and there are thousands of women like that who feel that another child would just he the limit. So I do not feel that that is an argument for not supporting the Amendment. If any noble Lord can find a better word than "capacity" at a later stage of the Bill he is perfectly entitled to put down an Amendment accordingly, but so far these are the best words I can find.
There was also a suggestion (I do not know whether it was persisted in) that this Amendment would open the door to women having abortions freely on demand. But, of course, as my noble friend Lady Wootton of Abinger has pointed out, the woman has not only to desire an abortion; she has to satisfy two doctors. They can refuse: they are perfectly at liberty to do that. If they refuse, then, so far as she is concerned, that is the end of it unless she goes to a back street and gets someone to carry out an abortion; or, if she has the money and knows the right person to go to, unless she goes to Harley Street and puts down the money. But it is not a question of opening the door so widely that anybody can get in on demand.
Finally, there was the point that the noble Lord, Lord Denham, made: that you can always have the child adopted. Is that really a satisfactory way of approaching this matter: that a woman must go through all the pangs and anxieties of childbirth in the hope that when the child is born somebody will come and take it away from her? I should have thought that, from a psychological point of view, that was the greatest

1219
injury you could do a mother—to tell her in advance that she must give birth to this child but that it will be all right on the day, somebody will come and relieve her of it and she will never see it again. I should not have thought that that was a suggestion that could be put forward seriously in answer to this

CONTENTS

Amulree, L.

Fortescue, E.

Moyne, L.

Archibald, L.

Gaitskell, B.

Newall, L.

Arran, E.

Gardiner, L. (L. Chancellor.)

Plummer, B.

Arwyn, L.

Gifford, L.

Ponsonby of Shulbrede, L.

Asquith of Yarnbury, B,

Greenway, L.

Raglan, L.

Attlee, E.

Hawke, L.

Reay, L.

Auckland, L.

Hertford, M.

Royle, L.

Birdwood, L.

Hilton of Upton, L.

St. Davids, V.

Blyton, L.

Howick of Glendale, L.

Segal, L.

Brockway, L.

Huntingdon, E.

Silkin, L.

Byers, L.

Ilford, L.

Sorensen, L.

Champion, L.

Kirkwood, L.

Stocks, B.

Colwyn, L.

Latham, L.

Stonham, L.

Cranbrook, E.

Leatherland, L. [Teller.]

Strang, L.

Dudley, L.

Lindgren, L.

Strange, L.

Effingham, E.

Listowel, E.

Strange of Knokin, B.

Elliot of Harewood, B.

Long, V.

Summerskill, B.

Erroll of Hale, L.

McCorquodale of Newton, L.

Thurlow, L.

Faringdon, L.

Monson, L.

Wade, L.

Ferrier, L.

Morrison, L. [Teller.]

Wootton of Abinger, B.

NOT-CONTENTS

Barrington, V.

Craigmyle, L.

Longford, E.

Brain, L.

Denham, L. [Teller.]

Lytton, E.

Brock, L.

Emmet of Amberley, B.

Norwich, Bp.

Clifford of Chudleigh, L.

Goschen, V.

Oakshott, L.

Conesford, L.

Grenfell, L. [Teller.]

St. Oswald, L.

Resolved in the affirmative, and Amendment agreed to accordingly.
LORD SILKIN: With your permission, my Lord Chairman, may I say that the noble and learned Viscount, Lord Dilhorne, has asked me to apologise to the Committee? He would have liked to move the next Amendment, No. 3, and I should have liked him to do so as well, but he has another engagement before a Royal Commission. He therefore proposes to move it at a later stage.
5.41 p.m.
LORD BRAIN LORD BRAIN moved, in subsection (2), after "of the pregnant women" to insert:
"or becomes necessary in the course of a surgical operation undertaken for a purpose other than the termination of pregnancy".
The noble Lord said: I beg to move the Amendment standing in my name. Its object is to carry out the intention of this subsection better than its present form carries it out.
Amendment. I hope your Lordships will, on consideration, support this Amendment and let it go forward.
5.32 p.m.
On Question, Whether the said Amendment (No. 2) shall be agreed to?
Their Lordships divided: Contents, 60; Not-Contents, 15.
I understand that the subsection was introduced to deal with a situation in which a doctor—not a gynæcologist—a surgeon, for example, finds himself having to terminate a pregnancy as part of a surgical emergency. A provision that such a termination is immediately necessary in order to save the life of a pregnant woman would apply to some such cases, but not by any means to all. The termination of a pregnancy might be necessary for the completion of an operation begun for some other purpose and without the knowledge that the patient was pregnant; yet the surgeon could not be certain the patient would die if the operation were not completed. The object of the Amendment, therefore, is to make provision for this type of situation and to avoid exposing such doctors to the fear of prosecution because, although not gym-ecologists, they have terminated a pregnancy for the welfare of the patient though not necessarily in order to save her life.
Amendment moved—
Page 1, line 23, after ("woman") insert ("or becomes necessary in the course of a surgical operation undertaken for a purpose other than the termination of pregnancy").—(Lord Brain.)
LORD SILKIN: Once more I am indebted to the noble Lord, Lord Brain, for putting forward this Amendment. I feel it is a great improvement on the existing provision; and I am happy to accept it.
LORD STONHAM: Before my noble friend concludes, may I say that I entirely concur with his agreement with the principle of the Amendment which the noble Lord, Lord Brain, has put forward, but I am bound to say that there are difficulties, not of principle, which are capable of being overcome by another Amendment. I do not know whether my noble friend, therefore, would feel that the Amendment should now be accepted or whether I should point out the difficulties now in the hope that the noble Lord, Lord Brain, may feel at this stage that he can withdraw the Amendment and come back with another Amendment to meet the situation.
LORD SILKIN: My first feeling is for the noble Lord, Lord Brain, to hear what the noble Lord has to say. I would rather accept it and leave it to be amended hereafter, if need be, in the light of the noble Lord's explanation. I think it better that it should be in the Bill.
LORD STONHAM: Perhaps my noble friend will remember that at a previous stage I mentioned the difficulties that arose when an operation other than for termination of pregnancy was going on and it was then found that a woman was pregnant and that it was necessary, for health or other reasons, to terminate the pregnancy. The particular difficulty about this precise Amendment is that no test of "necessary" is suggested. In the place in the Bill where the noble Lord, Lord Brain, proposes to insert his Amendment, it means that the exemption is limited to the conditions in the Bill set out in subsection (2) as the only grounds on which an abortion would be lawful as set out in subsection (1).
Therefore, in effect, what we have to consider is: is the termination of the
1222
pregnancy necessary because its continuation would involve grave injury to the health of the woman or there is a substantial risk that the child will have severe abnormalities? They are the only two things justified in this Bill. Where the operation has begun and it will necessarily involve terminating the pregnancy, it is arguable that its termination cannot involve an offence of abortion since the surgeon has no intent to procure a miscarriage but only an intent to perform the original operation. The point is, therefore, that no Amendment in our view is necessary to achieve what the noble Lord, Lord Brain, has now explained to be his objective—which is what I thought it would be, and it is one with which I am in sympathy. I am in the hands of the Committee. It is a matter for the noble Lord, Lord Brain, as my noble friend suggested, to decide whether to move this and to amend the Bill now, and then look at it again. I think I have said enough to show that it will have to be looked at again and there will have to be an Amendment to put it in proper form.
LORD BRAIN: In the circumstances I think it better that I should withdraw it now and give consideration to the various points, so that I shall have an opportunity of dealing with it later in the course of the Bill.
Amendment, by leave, withdrawn.
5.47 p.m.
LORD SILKIN LORD SILKIN moved, in subsection (2) (a), to leave out "a practitioner who holds an appointment as registrar or in a superior capacity" and insert:
"or under the supervision of a consultant holding an appointment".
The noble Lord said: This Amendment deals with the qualifications of the person who is actually going to carry out the treatment. In the Bill as it stands, the treatment must be carried out by a person who holds an appointment as a registrar or in a superior capacity under the hospital board and so on. My Amendment is designed to secure that it should be carried out by, or under the supervision of, a consultant. A consultant is, of course, of higher rank than a registrar; but there is nothing in my Amendment that would preclude a registrar from carrying out the treatment "under the supervision of a consultant."
I feel that the Amendment will be an improvement in the Bill, and it removes the complication of talking of a registrar or somebody of superior rank. It leaves the responsibility to the consultant and allows him to have the treatment carried out under his supervision. It might be by a registrar; it might be anybody else who is a gynæcologist, so long as it is somebody experienced in gynæcology. By accepting this Amendment we are falling into line with the normal practice in hospitals of having operations carried out by or under the supervision of a consultant. With that explanation I hope that the Committee will see their way to accepting this Amendment. I beg to move.
Amendment moved—
Page 2, line 4, leave out from ("by") to ("under") in line 6 and insert ("or under the supervision of a consultant holding an appointment").—(Lord Silkin.)
LORD BROCK: I am not quite clear whether "under the supervision of a consultant" implies that the consultant must be there when the operation is performed. That is what I should have thought. If so, I think it weakens the position, because there are cases when an operation could well be done by some people of less than consultant status. The consultant should be responsible, but the operation would not be done under his direct supervision.
BARONESS SUMMERSKILL: May I support the noble Lord, Lord Brock? It would be possible for a registrar and consultant actually to have the same qualifications. We are talking about a minor operation, which could take a few minutes. It would not be in the interests of the mother—and by that I mean she might be put off and there might be some delay—if a registrar and a consultant had both to be in the operating theatre.
LORD SEGAL: May I further support the arguments put forward? According to my reading of the Amendment, it would require the actual physical presence of the consultant in order to enable him to exercise supervision at the time of the operation. I feel very strongly that the wording would be greatly improved if, instead of the words, "under the supervision", we stated, "or with the written authority of the consultant". I would
1224
ask my noble friend Lord Silkin whether he would consider a slight Amendment to the wording to enable the purpose of the Amendment to be carried out more fully.
LORD STONHAM: I am afraid that the form of words suggested by the noble Lord, Lord Segal, regarding the written consent of the consultant would not achieve the purpose he has in mind. Everyone in your Lordships' House will agree with my noble friend Lord Silkin that there is a great deal to be said for placing responsibility for an operation at a higher level than that of registrar. But, as was pointed out by the noble Lord, Lord Brock, and my noble friend Lady Summerskill agreed, the Amendment as drafted appears to weaken the safeguards for pregnant women, because any doctor could do the operation whether or not he had experience of gynæcology, provided only that the consultant had such experience. Although the Amendment requires the operation to be under the supervision of the consultant, which might imply some control by the consultant over the qualifications of the doctor, there is no definition of the nature of the supervision, and no responsibility is placed on the supervising doctor. A doctor who was instructed to carry out the operation by a consultant might be placed in a difficult position if the consultant then failed to give any supervision.
The view of the Royal College of Obstetricians, which has the support of the Minister of Health, is that the Bill should provide for placing responsibility for an operation at a higher level than a registrar. We think the answer might be to frame a provision which would require an operation to be performed by a consultant holding a post which involved the practice of gynæcology, or a practitioner authorised by such a consultant to act on his behalf. If that concept meets the view of my noble friend, we shall be pleased to assist him to draft a suitable Amendment.
LORD SILKIN: I must say that when I used the term "supervision" I did not have in mind that a consultant should necessarily be physically present. If that is what those words convey to your Lordships, it is not what I had in mind. I had in mind that the consultant should be responsible for the treatment, but that he should be able to delegate it to somebody in whom he had confidence, who

1225
was competent to carry it out and who would generally act under his direction. In the circumstances, what I should prefer to do is to invite your Lordships to accept the Amendment, with my assurance that I will consult the noble Lord, Lord Stonham, or his advisers to see that we get a general idea into the Bill but that it is properly worded. I hope that that course will commend itself to the Committee.
LORD STONHAM: I am sure that there is no issue here. My only thought about the matter is that the insertion of the Amendment now might make the new drafting a little more difficult.
LORD SILKIN: I do not think that anything is too difficult for Parliamentary draftsmen. I feel that there is an advantage in having the conception of the consultant being responsible. How this is to be carried out is a matter which we could consider later. I should like to have that conception in the Bill at this stage.
On Question, Amendment agreed to.
LORD SILKIN: This is purely a drafting Amendment. There was an error in the original draft—which this Amendment is designed to correct. I beg to move.
Amendment moved—
Page 2, line 15, leave out ("carried") and insert ("carries").—(Lord Silkin.)
On Question, Amendment agreed to.
5.56 p.m.
LORD ROYLE LORD ROYLE moved, in subsection (2), to leave out paragraph (e). The noble Lord said: I beg to move the Amendment standing in my name. This paragraph is one of the conditions concerned with Clause 1 and it reads:
there has been before treatment an application in writing by the pregnant woman, or, if tinder sixteen years of age, of the pregnant girl and one of her parents or of the pregnant girl and her guardian for the termination of the pregnancy.
I move the deletion of this paragraph because I feel, first, that it would create difficulties which should be avoided and, secondly, that the paragraph is unnecessary. It may be that the aim of an application is that the expectant woman should take the initiative and that this would reduce the risk of her being persuaded against her will. The application
1226
would be made at an early stage and before the doctor had formed an opinion on the advisability of the abortion. It seems to me undesirable to ask for a formal application before the doctor has reached an opinion. Needless disappointment might be caused. It might be more difficult to persuade the woman that the pregnancy should go on. Again, suppose a doctor finds an early pregnancy during an examination of another kind—
LORD SILKIN: Can the noble Lord, Lord Royle, elaborate his first point? There is nothing in this paragraph which says that she has to give her consent before the doctor has expressed an opinion. It is before treatment. The treatment, I take it, is the actual operation.
LORD ROYLE: I am much obliged. I agree with my noble friend that this is so but every implication in the paragraph seems to me to indicate that application must be initiated by the woman in the early stages. That is why I am taking this line.
Again, suppose a doctor finds an early pregnancy (I was in the middle of this sentence when my noble friend interrupted me) during an examination of another kind and finds it necessary to recommend termination on health grounds. Take the case of a girl of 16 under the paragraph. There may be cases involving girls under the age of 16 where the parents cannot be traced or they may be dead. No guardian may be available. It may be a still younger age, for all of us know that the age of girls involved in this trouble may be as low as 12. To avoid distress, surely it is desirable for the doctor to use his discretion subject to the consent of the parents. The Bill goes on to talk about defectives. I suggest to your Lordships that very many defectives would be completely incapable of making a valid application as is suggested by the Bill at the moment. This is still worse if the definition of "defective" is going to be the word "subnormal".
It is necessary for me to indicate what the position would be if there were no provisions requiring an application. It is the standard practice in the National Health Service hospitals, as I understand it, for the written consent of a patient or, in the case of those under 16, of the

1227
parent or guardian, to be obtained for any operation, unless for exceptional reasons—for example, a life-saving emergency—the written consent cannot be obtained. In those cases the consent form signed by the patient states that he or she agrees to the operation, and to an anæsthetic, if this is necessary, and the nature of the operation is left to the surgeon.
But in the case of an operation of a special nature, including sterilisation and therapeutic abortion, it is the practice for the form to state that the patient agrees to the particular operation, and that the nature and implications of the operation have been explained to the patient. It is also the practice to obtain the husband's consent, as well as that of the patient, to operations of sterilisation and therapeutic abortion. Although there is no specific statutory requirement that the patient's consent should be obtained before an operation is performed, again, I understand that medical defence organisations advise that consent should invariably be obtained to safeguard the doctor against any possible proceedings for assault against the patient; and it is considered that the normal medical practice for obtaining consent to operations provides adequate safeguard without what is now being suggested and that it is unnecessary to have a specific provision relating to consent in this Bill.
I turn for a moment to the penalties which are laid down in the Bill. Paragraph (e), which is the one we are discussing, is a condition to be complied with if the abortion is to be legal. If the doctor, for some good reason, were not to comply with this, as I regard it, technical provision, he makes himself liable to a maximum penalty of life imprisonment. Frankly, I confess that I do not understand why my noble friend ever inserted this paragraph in the Bill. He will have the opportunity of explaining to your Lordships why he did, and I hope he will. For these reasons, I am appealing to my noble friend to accept the Amendment, and, if he is not prepared to do so, then I hope that I shall have the support of the Committee. I beg to move.
Amendment moved—
Page 2, line 20, leave out paragraph (e).—(Lord Royle.)
6.4 p.m.
BARONESS WOOTTON OF ABINGER: Far from regarding this provision as unnecessary, I think it is absolutely crucial to the Bill. My noble friend has suggested that we are sufficiently covered by the safeguard that it is the practice in National Health Service hospitals to obtain the patient's consent before the operation is performed, and that it is the practice to obtain a rather more elaborate consent before a sterilisation operation or a therapeutic abortion is performed. I am not prepared to rely on the practice as we know it. It has no statutory force behind it; it sometimes falls into disuse, under pressure, and some hospitals may not perhaps always conform to what is the normal practice. I regard this provision as the minimum defence for a woman.
If the baby is born and the mother wishes to have it adopted, she must give her consent to the adoption before a magistrate, and she has the right to withdraw that consent right up to the moment of the court hearing. As I reminded your Lordships the other day, if a woman gives consent to a hire-purchase agreement produced by a doorstep salesman she has the right to revoke that consent within three days. These, surely, are instances of matters which are not comparable with the case of an abortion. It may be that the case of adoption is so comparable, but certainly that of a hire-purchase contract is a much less serious matter.
There have all along been two lines of thought running through this Bill. The first is the thought that the Bill should make it possible to prevent babies from being born whom other people—not the woman concerned—think ought not to be born. That was my objection to the original inadequacy Amendment: that it really put the judgment not on the woman concerned, but on other people. The other line of thought is that in certain restricted and defined circumstances the woman herself should have the right to say that she does not wish the baby to be born. My noble friend has said that she may make an application at a moment when it cannot be accepted, because the doctor has not yet come to a decision. Nobody expects every application for everything to be successful.

1229
But what matters is that she should make the application herself, so that there can be no doubt that it is her wish.
If this Amendment is accepted, all my old suspicions about the inadequacy Amendment, and now the capacity Amendment, will be aroused again, because it will mean that the object of this Bill is not that women should be aborted in circumstances in which they wish it, but in circumstances in which somebody else decides. As I said just now, I was prepared to support the capacity Amendment, and did so; but my support of the Bill as a whole will fall if this Amendment is accepted.
BARONESS SUMMER SKILL: I should like to comment on paragraph (e). I have been listening to my noble friend, who is a magistrate and has a great deal of experience. I called at a hospital which I know well, which has 1.200 beds, and asked the matron there what was their approach to girls who came in suffering from an incomplete abortion—who had probably tried to procure the abortion themselves, and there was only a little bleeding, and it may be that if the girl had been left and properly rested she could still go to term. I asked the matron there, whom I have known for a long time (it is a hospital where I was on the management committee for many years) what is their approach: "Do you ask her age—before, for instance, you clear the uterus?". She said: "We ask everybody's age". I said: "Do you confirm it in any way?". I am sure she regarded me as a little ridiculous. She said: "You are not suggesting that we should find the birth certificate. They can say any age they like ".She added: "The surgeon will come in and examine the patient, and we do whatever he thinks fit".
I asked her: "Do you try to get in touch with the mother or father, or the guardian?"—I must admit that I was doing this for academic reasons, because of this Bill. I am sure the matron again regarded me as being somewhat ridiculous, and she said: "In a busy hospital like this we have not the staff to make inquiries of this kind. The surgeon just decides to do the operation as he thinks fit." So I feel that some of these arguments are a little academic. The girl going into one of our large hospitals in
1230
London—and we have the words at the top of page 2 of the Bill:
"…the following conditions must be corn-plied with in connection with any treatment for the termination of a pregnancy …"—
may be a 15 or a 16 year old, looking like an 18 or a 19 year old. In that case nobody bothers to get hold of a birth certificate, and the surgeon would be very annoyed if his work were to be interrupted and he were asked that this provision should be complied with before he did the necessary operation. I feel that all our talk is a little unreal.
LORD STONHAM: Surely in this matter the question rests on whether consent is given. My noble friend Lady Summerskill gave her experience, or what was conveyed to her at a large and busy hospital, and I have no doubt that these situations may obtain. But it is the case, I imagine, even in that large and busy hospital, that individuals, although their age is sometimes not asked, are required to consent to an operation provided that they are capable of giving an answer. Only if they are in a condition of such physical distress that they cannot act for themselves and no-one can act for them does the surgeon decide. I do not know what attitude my noble friend Lord Silk in will take on this.
My noble friend Lady Wootton of Abinger regards it as absolutely crucial to the Bill, because she is not prepared to rely on a practice in a hospital which has no statutory force. That is quite understandable. It may well be that some consent provision is necessary in the Bill. But it seems to me that, to go on with a position in the Bill which demonstrably puts doctors in jeopardy (and what my noble friend Lady Summerskill has just said confirms this) of having committed the very serious offence of criminal abortion simply because they have not filled in a form, is something which should be faced. Whether it can be dealt with by some Amendment to the Bill as it stands at present, or whether it is practical to have a consent clause in, I leave to your Lordships. But I would submit that my noble friend made out a convincing case for the fact that the position as it stands at present is unsatisfactory and needs amendment.
LORD SILKIN: The last thing I want to do is to arouse the suspicions of my

1231
noble friend Lady Wootton of Abinger. She is a very formidable character, and I do not like to cut across her more often than I can help. I am not going to give any justification for her suspicions, because I think my noble friend is making rather heavy weather of this provision. If, as he said, it is already the practice in hospitals, and if he agrees that a girl under 16 or a woman over 16 must agree to the operation, I cannot see for the life of me what is the objection to her giving her consent in writing. There may be a difficulty about parents in the case of a girl under 16—she may not have parents. That is a point which I agree might be looked at again.
But that was not the burden of my noble friend's objection to this provision. His objection was that it was not necessary. I do not know whether it is necessary or not; it is not a statutory requirement in a hospital. Of course, this treatment may be carried out in an institution approved for the purposes by the Minister of Health and it may or may not be the practice at these institutions. Therefore, it makes it all the more necessary that there should quite clearly be the consent of the prospective mother. I think we ought to put it beyond all doubt and have it in the Bill that nothing will happen except at the request of the expectant mother, whether she is over or under 16. In the case of a girl under 16 it should rest with her parents or guardian. I think that should be in the Bill beyond any doubt at all, I would say whether it is necessary or not, but I think it is necessary. Therefore, I hope my noble friend will not press his Amendment.
LORD ROYLE: I am under very great pressure, and I find it very difficult indeed to resist arguments, particularly from the promoter of the Bill and my noble friend Lady Wootton of Abinger. But I must in fairness to myself and my own point of view submit that my points have not been clearly answered. I wanted to make it perfectly clear—and that is why I put it first—that the difficulties were more important than the question of our present customs. I feel that if the clause goes through in its present form, with this paragraph in it, we shall find difficulty after difficulty arising.
I would stress again that my point with regard to girls under the age of 16,
1232
where neither parents nor guardians are available, could create tremendous difficulties if this paragraph were not in the Bill. I can envisage it happening. I am in two minds about this. I take a great deal of notice of what has been said, but on second thoughts I feel that I would much prefer your Lordships' decision.
BARONESS WOOTTON OF ABINGER: I wonder whether I might suggest that these difficulties about the under 16s, and so on, could be met by some modification in this clause which could be introduced at Report stage. Surely the wrong way to meet these difficulties is to take out any reference in the Bill to the woman's own application.
LORD FERRIER: I should like to support what the noble Baroness has just said. The points that the noble Lord, Lord Royle, has made are bound to weigh with us when supported by the views expressed by the noble Lord, Lord Stonham. If it were possible, perhaps the noble Lord, Lord Silkin, might agree to look into this matter again. Looking back to the debate in the last Parliament, my recollection is that we had quite a lot of talk about welfare officers, and the welfare side, in dealing with problems such as those envisaged by the noble Lord, Lord Royle—that is, the young girl whose parents or guardians are hard to find. If something of that kind would meet his point, perhaps the noble Lord, Lord Silkin, would think again and do as the noble Baroness, Lady Wootton of Abinger, has suggested, and bring something forward at a later stage.
VISCOUNT DILHORNE: I am sorry not to have been able to hear the whole of this debate, but I have heard some of it. If I might, I would ask the noble Lord, Lord Royle, to reconsider his attitude towards dividing the Committee upon it. Right from the beginning of this debate on abortion it has been essential that the operation should take place only with the consent, or on the application of, the pregnant woman. That is provided for in paragraph (e). Surely it would be a great mistake to take that out. The noble Lord, Lord Royle, suggested that there would be difficulties with regard to a girl under 16 if there were no parents or guardians readily available to give a signature. I entirely agree that he has a point there.

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I think this is a point which will have to be looked at, and I am sure the noble Lord, Lord Silkin, will consider it. I was unable to be here to hear anything except the concluding remarks of the noble Lord, Lord Stonham, but I am sure that he drew attention to that point, too. I am sure that must be looked at. But that does not seem to me to be any argument, because that is not quite parallel with that part of the provision for taking out the provision in this clause that this operation can be done only on the application of the pregnant woman. That is something which I myself regard as essential, and something which should remain in the Bill. I am sure that if the noble Lord, Lord Royle, would withdraw his Amendment, he could rest assured that those of us who want to see a Bill on the right lines to deal with this subject will do what we can to meet the difficulties to which he has drawn attention.
LORD ROYLE: I bow to no one in the desire that there should be sufficient safeguards in this Bill. That has been my attitude to it the whole of the time, both in the last Parliament and in this one. However, there is terrific pressure, and obviously I must take notice of what has been said by noble Lords. Also, at this hour I hesitate to detain your Lordships for another Division. Therefore, I beg leave to withdraw the Amendment, on the assurance that we may have the opportunity of considering these particular points at a later stage.
Amendment, by leave, withdrawn.
6.21 p.m.
LORD STRANGE LORD STRANGE moved to add to the clause:
"() Where a registered medical practitioner refuses to carry out treatment for the termination of a pregnancy, he shall immediately notify a female Welfare Officer, appointed by the local authority, of such refusal, and it shall thereupon be the duty of the Welfare Officer so far as practicable to secure the physical and mental health and well-being of the pregnant woman and of the child if born."
The noble Lord said: It seems to me that I have been speaking to this Amendment for years. I think I started last November, and it has become rather like the Psalms: on one day I give my arguments, and then on another day I give exactly the same arguments but in different words. In the background of
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this Amendment there has always been one thought in my mind. I feel we should have a sense of sympathy for these women who have got to this stage of wanting an abortion, for whatever reason, and I have always felt they would not be in that state if it were not for some man. I read in the Daily Telegraph last week an account of an abortion fracas in Wallington which I found almost extraordinary. A surgeon had asked a doctor to perform the abortion on his girl friend. The doctor performed the abortion; the girl died; the doctor committed suicide, and the surgeon was put into jail for four years. It reminded me rather of a Greek tragedy; something like a play by Euripides—Medea, for instance, when she kills her children, polishes off her husband and at the ends says, with satisfaction, "As I understand justice, so have I acted." I felt that if this Bill had become an Act, the unfortunate girl who died would not have come under the Act. The same story in fact would have been enacted.
I do not argue with the figures; we have accepted them for so long. But it is sad that every year 100,000 women obtain illegal abortions. The number may be more or less—I do not know—but that is the figure which I have become accustomed to hearing in your Lordships' House. If this Bill goes through there will be a large number of women who will not be eligible for abortion. We can guess the figures one way or the other, but I think that 25,000 women would be entitled to obtain a legal abortion and 75,000 women would he given, as a present, to the illegal abortionists. I feel that this cannot be right, and that is why I have been trying to bring in this Amendment, that these women should be put in touch with a female welfare officer. I have had the pleasure of meeting both female and male officers. I have found them very intelligent and dedicated people. I would rely on them, as professional people, for their secrecy, and I think they would certainly be competent to do all they could for any woman in this condition under their charge.
I know it has been said in your Lordships' House that the women might not want to have anybody messing about in their own affairs, and we all know that women have poker faces: it requires quite a lot of knowledge to know what is going on behind those masks. I am certain

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that nearly every woman in this condition would be in a state bordering on suicide. She would be in a state in which it would be impossible for any man to understand the misery she was in, and she would welcome having a friend who would be a friend in need. I feel that if your Lordships leave out the 75,000 women who are not covered by the Bill you will be—well, perhaps I will not say it, for I have never seen an ostrich hiding its head in the sand. At any rate, I will take it personally and say that I have come over to speak on this Amendment to the Bill because I believe in it and wish to try to push it through. And I would not give in on it for all the kippers in the Isle of Man. I await your Lordships' wisdom. I beg to move.
Amendment moved—
Page 2, line 29, at end insert the said subsection.—(Lord Strange.)
BARONESS SUMMERSKILL: I am very pleased that the noble Lord has stuck to his guns, and for the third time I rise to support him, because I admire his championship of women and I admire his capacity correctly to analyse the mind of a woman. I want to put one point seriously to your Lordships. If this Bill goes on to the Statute Book an entirely new position will arise. Women who hitherto have sought what we have called throughout this debate the "back-street abortionist" will go openly to a doctor. This will be the great change. Having read some of the debate which has taken place in your Lordships' House, and learned that there is a law that will help them, they will believe that if they go and ask for help openly they will be given an abortion. Therefore for the first time we shall be able to identify those women wanting an abortion. Statistics have been mentioned. We have no really sound statistics, because most of them come from hospitals where the woman has finally been sent because she is suffering from an incomplete abortion. At any rate, these women will go in good faith to their doctors and say "I want an abortion". So we shall be able to identify them.
There are two kinds of these women: the unmarried mother and the married mother. Generally they will be seeking an abortion for social reasons. I have
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never yet heard of a woman who asked for her pregnancy to be terminated because she was afraid, or unwilling to undergo disfigurement or discomfort or the pain of childbirth—never. The unmarried mother seeks an abortion generally because she fears the social stigma and knows the difficulties of looking after her baby. She knows the difficulties of obtaining accommodation, and if she is far-seeing she recognises the difficulties which her fatherless child would have to face if she brought it into the world. The married woman also seeks an abortion usually on social grounds. She may have a big family, as we have just been discussing; she may be living in a couple of rooms with five children, which makes life intolerable. She may find that her family is already big enough and that the family budget simply will not take another child. Or she may feel that her marriage is in danger of breaking up, through incompatibility, or for some other reason. These are the reasons why the unmarried and married mothers seek an abortion.
Having decided on an abortion, the woman goes to the doctor; and do not let us think that, when the doctor to whom she has gone openly says, "No" she then changes her mind. All she will do then is exactly what the women are having to do now; that is, to seek an unqualified practitioner of some kind or another who will help her. I entirely agree with my noble friend; here is a woman distraught. There is no doubt about it, she is in a category apart. She has decided that her conditions of life are such that she cannot bring a child into the world, and in good faith she goes to somebody she believes can help her—a doctor. He says "No". Distraught, she turns to somebody who will help her—the people who are now aborting, we are told, 100,000 women each year. Nobody knows what the exact figures are. The noble Lord quite rightly says that it is the duty of society to help this distraught woman at that stage. That is what we are asking for.
What is the position? The waiting rooms of the general practitioner are packed. Let us face it. The woman comes in; she quickly in a low voice asks for the abortion. He asks her what her circumstances are. He knows she will not qualify under the Bill. The pressure in

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the waiting room is very great—you have only to go round the waiting rooms in a big industrial town and you will see patients standing waiting. So he gets rid of her as nicely but as quickly as he can. He might give her a recommendation to a hospital. There is the vast outpatients department. Again there is the pressure of time. If you just leave it to the decency, the kindness, the sympathy and the understanding of a doctor and hope that he will see that she goes to the right person in her distress. I know you may feel that it will be enough, but do let us think of the circumstances that exist in our hospitals and consulting rooms and waiting rooms.
The noble Lord is asking us to put in the Bill that this particular woman who goes for help but does not qualify under the Bill should be asked to go—she will not be forced, because obviously you cannot force her to go; she can walk out and go wherever she likes—but she will be directed to the right person, the welfare officer who can give her the comfort, the help and advice, whether it is taken or not, that this distraught woman is in need of. I would remind you that this particular woman has not many friends. The married woman may be on bad terms with her husband, and the unmarried woman may have been deserted by the man responsible for the baby. What my noble friend is asking for is a means whereby this particularly friendless woman should he helped when she asks for help.
LORD BARRINGTON: I have been slightly obstructive in the course of these debates. I have generally been in a minority, and I may be now, but I should like to support the Amendment of the noble Lord, Lord Strange, principally on this ground: that it is the only Amendment in this Bill which seems to me to suggest that it is more creditable to have an illegitimate child than to kill it. That in itself would be enough to make me support it. I have an incidental reason, which is that I always dislike finding myself in the opposite lobby to the noble Baroness, Lady Summerskill, on any matter concerned with the heart, and on this particular question I have always been so except on the occasion when I was a Teller and got into the wrong Lobby. On this occasion if it comes to a Division I will support the Amendment,
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because I believe it is trying to do the most creditable thing in this Bill, for which we all give the noble Lord, Lord Silkin, the greatest credit: it is trying to reduce the number of abortions by making people feel that it is not necessary to go to the back streets first. How successful in practice it will be I do not know, and frankly I do not care.
LORD STONHAM: This is the third time the noble Lord, Lord Strange, has moved his Amendment and I think he improves every time. He put it very movingly this time, and on this occasion we had a particularly moving speech from my noble friend Lady Summerskill, fully informed on the whole situation, with the background, the surroundings which confront these women, and the outcome of any failure to provide this welfare help. There is no dispute whatever that this is terribly tragically needed. But you do not get it just by putting words into a Bill. I do not want to go over the discussions we had before. My noble friend Lord Silkin on the last occasion said he would make some inquiries of the Ministry of Health or consider this particular matter further, and he may have done so. But certainly I have consulted the Ministry of Health about it, and the view is that however desirable it may be that welfare help of this kind should be provided it is neither necessary nor desirable to make statutory provision, compulsory provision, on a doctor. We think it should be left to a doctor's discretion.
My noble friend Lady Summerskill said that you just cannot leave it to the good will and kindly feelings of harassed doctors to ensure that women in this condition get this help. But the Ministry of Health point out that welfare advice and guidance is often, but unfortunately not always, available through a medical social worker in a hospital or the local authority social worker in the health department. There is a grave shortage of these workers, and it is not possible to guarantee that this welfare advice will always be available, as indeed this Statute would demand if this provision went into the Bill. In those circumstances it is very difficult to see what instructions the Ministry could usefully give to ensure, as they would have to do, that this advice was available. There is not one of us who does not wholly

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sympathise with what the noble Lord has in mind. It is a matter for your Lordships. You may well say that if the advice is not there it must be provided. That is a matter for your Lordships. But I thought it my duty to point out the practical difficulties about acceptance of this particular Amendment.
BARONESS WOOTTON OF ABINGER: I, too, have very great sympathy with the intention of the Amendment, but I am a little uneasy, inasmuch as it seems to me to be a breach of the normal confidence that obtains between doctor and patient. I should be much happier if the Amendment took the form of putting an obligation on the doctor to supply the unsuccessful applicant with the name and address of a suitable female welfare officer. If the doctor himself notifies the officer, it may be somebody known to the applicant and disliked by the applicant, who may feel that her private business has been conveyed to this woman without her consent.
LORD SILKIN: I, too, am in great difficulty about this Amendment, because I sympathise with what the noble Lord has in mind—that where a woman is refused an abortion she should get the best advice and help and comfort. But is he not really going much too far? He is first of all putting an obligation on the doctor to notify the female welfare officer, whether the pregnant woman wants it or not. Is that not rather a breach of confidence? The welfare officer may be somebody in her own village whom she does not want to be informed of her pregnancy and of her desire to get an abortion. Nevertheless the doctor under this provision is under a statutory duty to inform the female welfare officer, whether the pregnant woman wants it or not.
Then it becomes the duty of the female welfare officer
"so far as practicable to secure the physical and mental health and well being …"
It is imposing a duty on another class of officer who is not directly concerned in this Bill at all, and we have no particular means of ensuring that the duty will be carried out. So far as the doctors are concerned, this is a medical Bill and we can be quite satisfied that it will be carried out. But here we are
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introducing something which is quite out of keeping with the main tenor of the Bill, and I should think it is far better, if you want to do something of this kind—and I hope that something will be done—to put upon the doctor the obligation to notify the pregnant mother of the facilities that are available to her, of having the advice and guidance of a female welfare officer, but leaving it to her to decide whether she wants it known that she is pregnant, whether she wants to get this help or what she will do in the circumstances. For these reasons, I hope that the noble Lord will not press the Amendment in this form. If he desires to have a fourth attempt, well, it may be that the fourth time will be more fortunate. But, frankly, I do not think that this is a provision that can be successfully operated in this Bill.
LORD STRANGE: I feel that the third time should be lucky. Much has been said about something which is not difficult. Doctors have stocks of calcium pills which they put in boxes and which they hand out to patients, telling them that they should have one every so often. It is quite simple to look in a drawer and to take out some cards, to tear one off and say to the patient, "This is yours", and to tear another one off, mark it "confidential", put the woman's name on it and send it to the woman welfare officer, who puts it in a file. If the woman does not go to the welfare officer it does not matter; the matter remains confidential. I will not withdraw the Amendment.
On Question, Amendment negatived.
On Question, Whether Clause 1, as amended, shall be agreed to?
6.42 p.m.
THE LORD BISHOP OF NORWICH: I find myself strongly in support of this Bill as embodied in the cases which would be included under Clause 1(1)(a), and under the conditions provided by this clause. But I feel an uneasiness as to the rightness of what is defined as the cases for the extension of abortion under Clause 1(1)(b) and which we are asked to approve. I will try, as briefly as possible at this late hour, to explain the reasons for this uneasiness, and for the somewhat different view I take from those which have so far been put forward by others who have spoken.

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Your Lordships will remember that in the last Parliament the right reverend Prelate the Bishop of Exeter put forward the view that termination in the supposed interests of the unborn child would be morally illicit unless it could be established without doubt that the fœtus was so gravely defective that the child, if born, could not begin a life which could be human in any recognisable sense of that word. In fact, the circumstances in which such conditions can be ascertained without reasonable doubt are quite rare, and recognition is not possible, so I understand, before 30 weeks when X-ray may reveal gross hydrocephaly or anencephaly. Then the question of termination is not one for the abortion law, but rather for the Infant Life Preservation Act. These rare conditions are therefore irrelevant to the present Bill.
The physical and mental abnormalities contemplated by Clause 1(1)(b) have been discussed and presented to your Lordships in terms of statistical risks, not of medical diagnosis. Given a certain family history, or given certain facts concerning virus infections by which the mother has been attacked in the early stages of pregnancy, it is possible to calculate the statistical chances that the child, if born, may be seriously defective. I understand that the highest risk, and a rare one, is 50 per cent. Most risks come below 25 per cent.—that is to say, one child in four will be defective, or one in five, six, seven or eight. This means, in practice, that there is an equivalent risk that, if abortion is induced, three good f œtuses will be killed for every defective one; or five, six or seven good f œtuses will be killed for every bad one, according to the statistical prediction.
The pædiatricians, according to the article published in the Lancet of January 1 of this year, are so distressed by the physical state of the children for whom they have to care that they argue that these risks ought to be taken: in other words, that it is better that a potentially deformed child should not live, at the risk of killing x potentially whole children: this risk should be taken rather than that a deformed child should be born and live. The Council of the Royal College of Obstetricians and Gynæcologists, in their Report published in the British Medical Journal of April
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2, are prepared to back this view, recognising the risks—and here I quote:
"If a new law were enacted, it would be wise in our view to include as an indication a considerably increased risk that the baby, if born, would be seriously handicapped, either physically or mentally. We wish to emphasise, however, that the inclusion of the latter provision would often in practice lead to the destruction of a potentially normal child."
Such arguments, propounded from these sources, are weighty, and there can be no doubt of the humanitarian and compassionate motives which they represent. But I feel a grave difficulty in accepting these arguments, and for this reason. At the moment, if this clause stands part of the Bill, the law of England will have entrenched in it a principle that it is lawful to destroy four, five, six or seven potentially healthy children, in the hope thereby of destroying one potentially deformed child.
My unease can best be expressed by putting the matter in terms of these questions: if that deformed child were born, would you then hold it lawful to kill it? If not, why not? Is it not a less heinous thing to kill one deformed child than to kill four, five, six or seven potential children in the hope of killing one potentially deformed child? I do not advocate the killing of any newly born child, but I put it to your Lordships that the principle embodied in this clause is ethically no more defensible—perhaps less defensible—than a clause in a Bill which permitted the destruction of a deformed child, newly born, by itself.
This clause raises grave problems as to the conditions under which it should, or should not be, permissible to take a potential human life. Whatever the law, cases or abnormality are bound to arise. The only way with certainty to avoid that would be to kill all fœtuses. Indeed, deformity of some sort or another arises in one out of every 50 babies born. Where such deformities occur, and especially where they are serious (which is the case envisaged in this clause of this Bill), society must guarantee all the resources at its command to ease the lot of the child and the lot of the parents who care for the child.
Without in any way underestimating the demand that it will make on the affection and emotional resources of the parents, particularly the mother, on the skill of the doctors and

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nurses in a hospital, I would argue that such care is the right ethical way of meeting this natural hazard. Instances of genuine distress—and this is the point of the Amendment of the noble Lord, Lord Silkin, which we have just passed—would still be covered by Clause 1(1)(a), or could be regarded as being covered, I should have thought, by that paragraph, in the terms in which it at present stands, in which the mother's health is the question at issue; and I would urge this as the appropriate licit touchstone. If, when presented with a statement of risk, the mother felt honestly unable to bear it, then to insist on her doing so against a strong aversion would, it must be supposed, and I would contend, precipitate adverse effect upon her health and would justify the termination of the pregnancy under Clause 1(1)(a).
To substantiate such an adverse effect it would not be necessary to show that the mother was driven to the length of committing suicide. If the mother really cannot cope—and this is one of the issues we have already discussed this afternoon—surely her health inevitably will be subject to grave impairment. The question is one susceptible of medical diagnosis and prognosis. Doctors are well able to recognise where, under Clause 1(1)(a), termination of the pregnancy would be justified, and the interpretation of the clause envisages account being taken of the mother's health, social situation and of proper consultation between the mother's general practitioner, consultants and medical social workers.
Here is a widely based realistic safeguard against such distress as a mother would not be able to face without injury to her health and her capacities as a mother. I want to see Clause 1(1)(a) incorporated in the law of the land. But this present Clause 1(1)(b) is, I feel, a very different matter, since it introduces into the law of this land a principle which I believe is dangerous and should, if possible, be avoided. I do not propose to divide the Committee, but I hope that we may still give some further thought as to the wisdom of Clause 1(1)(b).
6.53 p.m.
LORD STONHAM: I hope that the right reverend Prelate will forgive me if I do not follow him in these arguments,
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because my only purpose in rising to my feet is to honour a promise which I made on Second Reading, in reply to a point made by the noble and learned Viscount, Lord Dilhorne. Incidentally, I am very much in favour of the Motion that Clause 1 shall stand part of the Bill.
Your Lordships will recall that during Second Reading Lord Dilhorne expressed the view that my noble friend's Bill, when it becomes an Act, would not in fact supersede Case Law, and he expressed it as his view that the Act and Case Law would then move forward together. My noble friend expressed disagreement with that point of view, and I undertook to obtain advice and consider whether an Amendment was necessary to put the issue beyond all doubt.
My advisers and I have again been into the point very thoroughly, and I have taken the opinion of my right honourable friend the Attorney General. The essential point is whether the doctor must comply with all the conditions of Clause 1 if the abortion is to he lawful, or whether he can be in breach of one of the conditions and still perform a lawful abortion provided that he satisfies the test laid down in Rex v. Bourne.
The advice I have is that the Bill, as it stands, does supersede the Case Law. I am advised that the proposition that certain statutory conditions must be complied with in connection with any treatment for the termination of a pregnancy is virtually meaningless unless it means that the treatment is unlawful if the conditions are broken. The essence of the Bill is that it defines the circumstances in which an abortion is not unlawful under Section 58 of the Offences Against the Person Act 1861. The view that the Case Law and the Bill, when passed, would operate together requires the very strong conclusion that the courts, in deciding what was unlawful under Section 58, could hold an abortion to be lawful although it was done in clear contravention of a condition in a modern Statute.
As I said on Second Reading, the Government agree that the Bill should have the effect that I have said it has. On the other hand, if noble Lords still felt misgivings about whether it does have that effect, it is not too late for them to express this view in some later provision of the Bill. But, having taken the best I opinion I can, I cannot advise the House

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that it is necessary to have an express provision; and my noble friend's Bill, when it becomes an Act, will in fact supersede the Case Law.
VISCOUNT COLVILLE OF CULROSS: Since my noble and learned friend Lord Dilhorne is not here, may I ask one question on this matter? Is the noble Lord relying on the result of any particular decided case, or is this just a general opinion which he has derived—no doubt from very learned sources—about the state of the law, unsupported by any authority?
LORD STONHAM: The opinion I have expressed is, as the noble Viscount has said, based upon the advice of very learned sources. I would add that the noble Viscount, Lord Dilhorne, who was in the Committee a little while ago, told me that he had to leave and that he would read to-morrow what I said.
LORD SILKIN: I think that I ought to say a word in reply to the right reverend Prelate, and also say a word of gratification at the opinion which my noble friend has just expressed. It is not often that I have the satisfaction of having my views verified when I am in disagreement on a legal matter with a former Lord Chancellor, so I must say that one word of triumph on that point.
If I may say this to the right reverend Prelate, the point he has made on Clause 1(1)(b) is by no means fresh. We have debated this over and over again. There is a genuine conflict of opinion as to whether this Bill should go beyond Clause 1(l)(a) and deal entirely with the life or the grave health of the mother, or whether we should take the occasion to go further which this Bill provides. The House, generally by overwhelming majorities, had decided that we should go rather further, and particularly in the direction of Clause 1(1)(b). There has been greater conflict over some of the other provisions, but I think there is almost unanimity about Clause 1(1)(b). There the matter stands. I note everything which was said by the right reverend Prelate, and I agree that it may mean taking life, if taking life is involved at all; and on that there is a fundamental disagreement. Many of us do not agree that the basis of the right reverend Pre-
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late's argument is sound, and that it is taking life at the stage at which abortion would take place. But if one accepts that, one has to agree that one might be taking the life of a child who would eventually turn out to be quite normal and healthy. But we have deliberately taken the choice of dealing with a case where there is a substantial risk of a child being born in such a condition that, as we said originally, it would be incapable of reasonable enjoyment of life. We have amended that in a way which I think is an improvement. I would ask the right reverend Prelate to bear in mind the kinds of cases which we have in mind: the child born without arms and legs; blind; deaf; dumb; the child without a brain. It is all right to say that such a child might be loved by its parents—so long as it has its parents. But that child may go on to live for a long time, and then what sort of a life are we condemning it to? The general view was that we ought not to take the chance if there was a substantial risk, and that is for the doctors to decide.
I do not wish to argue the case all over again, because we have threshed the matter out, but I should like the right reverend Prelate to believe that those of us who are supporting this clause are really quite sincere and conscientious in believing that it is in the public interest that something of this sort should be provided. I agree with the right reverend Prelate, also, that in many instances—but not all—this case would be covered by paragraph (a) of subsection (1), because the mother fearing that she might give birth to a defective child would be in such a mental condition that she would qualify for an abortion under that paragraph. But that is not invariably the case, and those of us who support this clause feel that we are doing right.
In conclusion, may I say to the right reverend Prelate that his own colleagues were divided on this issue, because a number of them supported paragraph (b) of subsection (1). So I am sure he would agree that he is not speaking for the whole of his Bench. Some of them support the clause, and some do not. I hope that the Committee will now be prepared to approve Clause 1.
Clause 1, as amended, agreed to.
Clause 2 agreed to.
Clause 3 [Interpretation]:
7.2 p.m.
BARONESS WOOTTON OF ABINGER BARONESS WOOTTON OF ABINGER moved, in the definition of "Defective" to leave out "subnormality within the meaning" and insert "severe subnormality as defined by subsection (2)". The noble Baroness said: I think it would be for the convenience of the Committee if we discussed Amendment No. 10 and Amendment No. 11 together, because No. 11 does for the law of Scotland exactly the same as No. 10 does for the law of England. The purpose of both these Amendments is to restrict legal abortion to the severely subnormal, as distinct from the subnormal. I think it is possible that some of your Lordships may not be acquainted with the apparently rather fine distinctions which are drawn in Mental Health legislation.
Under the Mental Health Act, a severely subnormal person is, to put it shortly, someone who is or will be incapable of an independent life or liable to serious exploitation. This covers cases such as imbeciles, idiots and people who must be institutionalised and cannot take part in ordinary life at all. The subnormal is a very wide category. In fact, the diagnosis of subnormals varies enormously in different parts of the country. The proportion of the population who are so diagnosed is very much larger in some parts of the country than in others, and that in itself, I think, is evidence that there is no hard and fast criterion by which the diagnosis is made. According to the definition of the subnormals, there must be an arrested development or incomplete development, but it is contemplated that they may be susceptible to medical treatment. Those words do not appear in the case of the severely subnormals.
In point of fact, a considerable proportion of the subnormals are responsive to medical treatment, and a very high proportion of them take their ordinary place in the community. What is more, investigations have shown that, even among those who are admitted to hospitals for the mentally subnormal, there is a very considerable proportion who are of average or even over-average intelligence. For instance, in the Fountain Hospital for mental defectives an inquiry in 1954 showed that 54 per cent. of a sample of 132 female patients admitted were not
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intellectually defective. A very much larger sample, a 5 per cent. sample of 12,000 defectives in the community and in institutions, taken at about the same time by Dr. Tizard, who is a very great authority on this subject, led him to the conclusion that a substantial number must be regarded as normal in intelligence. Much more recently, in 1962, an inquiry covering 17 hospitals for subnormal children in England and Wales has shown that, of the children who were capable of being tested, about 4 per cent. had above average intelligence.
Therefore, if we extend this Bill to cover the subnormals as distinct from the severely subnormals, we are really going to bring in a considerable part of the population who are, to put it bluntly, somewhat like ourselves, but who are very often the victims of circumstances or accidents, and who may by medical treatment and care eventually become quite like ourselves.
When this matter was previously discussed, when we were dealing with the Bill which suffered an abortion by the Dissolution of Parliament, I think it was perfectly clear that the image in the minds of noble Lords who wanted to extend this provision to all subnormals was really an image of the severely subnormals. There were references to people who were quite incapable of forming decisions, and so forth. If we accept the fact that we are going to take the whole of the allegedly subnormal population we are, as I say, going to make a very large extension and, what is more, a much larger extension of the provisions in some parts of the country than in others. I beg to move.
Amendment moved—
Page 3, line 14, leave out ("subnormality within the meaning") and insert ("severe subnormality as defined by subsection (2)").—(Baroness Wootton of A binger.)
LORD RAGLAN: I just want to ask a question, because this is something I do not know much about. Would not a severely subnormal person be a severely handicapped person?
BARONESS WOOTTON OF ABINGER: It is necessary to know before the child is born that it is going to be severely subnormal, and that is not known.
LORD SILKIN: I think I ought to reply to the Amendment. This is a very

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difficult provision. In the Bill as it was originally submitted, this category was restricted to severe subnormality. Under some pressure from the noble Lord, Lord Molson, who was very keen on an Amendment of this nature, I accepted it, but with the reservation that I was not entirely satisfied and wanted to look at it again. I have now done so, and I think that my noble friend is right. The Amendment of the noble Lord, Lord Molson, does go too far and I agree with everything that my noble friend has said in support of her Amendment. I am only sorry that, owing to illness, the noble Lord, Lord Molson, is unable to be here because I should have liked to hear him state his case again. But in his absence I feel that we should be wise to accept the two Amendments as they stand, and I therefore have great pleasure in recommending them to the Committee.
BARONESS WOOTTON OF ABINGER: was present when the noble Lord, Lord Molson, moved the Amendment to the previous Bill, in terms of severe subnormality. It was his observations which gave me the impression that he
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had in mind very much more severe cases than those which would be covered by an Amendment to include all subnormals.
On Question, Amendment agreed to.
BARONESS WOOTTON OF ABINGER: I beg to move the next Amendment.
Amendment moved—
Page 3, line 16, leave out ("within the meaning of section 6") and insert ("of the degree described in subsection (7) of section 96").—(Baroness Wootton of Abinger.)
On Question, Amendment agreed to.
Clause 3, as amended, agreed to.
Remaining clause agreed to.
House resumed: Bill reported with Amendments.

PUBLIC WORKS LOANS BILL
Brought from the Commons on Friday last, and printed pursuant to Standing Order No. 45; read 1a.
House adjourned at eleven minutes past seven o'clock.