§ 4.3 p.m.
§ House again in Committee on Clause 1.
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.
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 1199 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 moved, after Clause 8, to insert the following new clause:
§ "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. 1182.1200
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.1201
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.
1202 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 1203 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 betweenacts 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.
1204 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 1205 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 1206 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
§ (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 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.
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 1207 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 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.
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.
§ 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.