Lords Sitting of 8 February 1968

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Derby):
The LORD CHANCELLOR on the Woolsack.

SHOEBURYNESS RANGE
3.0 p.m.
LORD BYERS: 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 will make arrangements for Peers to visit the Coastal Artillery installations at Shoeburyness in the near future.]
THE LORD PRIVY SEAL (LORD SHACKLETON): My Lords, I assume that the noble Lord is referring to the Shoeburyness Range and the associated facilities. Her Majesty's Government would be very pleased to arrange through the usual channels for Members of this House (and indeed of the other place) to visit the Range. There are, in fact, no Coastal Artillery installations at Shoeburyness.
LORD BYERS: My Lords, while thanking the noble Lord for that Answer, may I ask him whether it would be possible for this visit to take place before the Order for the Stansted Airport is tabled in the House? Members of both Houses could then satisfy themselves on the validity of the estimate of £25 million which is required to remove this Range, if an alternative site were to be provided there for an airport.
LORD SHACKLETON: My Lords, I congratulate the noble Lord on keeping his supplementary in order. I will arrange, if he wishes, that this visit takes place at the earliest possible opportunity. While giving no undertaking, I think it is very likely that it will take place before any Order is laid.
LORD BYERS: My Lords, is the noble Lord aware that I am delighted with that answer?

NOISE FROM ROAD VEHICLES
LORD ELTON: My Lords, I beg leave to ask the first Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government whether they have noted the views put forward by the Consumer Council as to the desirability of gradually reducing the present maximum permitted noise level for road vehicles from 90 decibels to approximately 80 decibels, and whether they will consider taking action to bring about this reduction.]
LORD HILTON OF UPTON: My Lords, the views of the Consumer Council have been taken into account with those expressed by other organisations who have been consulted about the regulations which Her Majesty's Government propose to make to control the noise from motor vehicles. The maximum permissible noise levels which these regulations propose are regarded as a first step and are in line with agreement reached under the Economic Commission for Europe as the lowest practicable levels which can be achieved at the present time. It remains the stated objective of Her Majesty's Government to advocate the adoption under the Commission of progressively lower maximum permissible noise levels as research and development indicate what can be done.
LORD ELTON: My Lords, I thank the noble Lord for what I am sure will prove, to be, when I have been able to digest it, a less disappointing Answer than I had expected. But may I ask the Government please to bear in mind that it was a wise man who said that Hell is probably a very noisy place?
LORD HILTON OF UPTON: My Lords, I thank the noble Lord for what he said in the first part of his supplementary. On the second part, I am not sure whether it was a wise man or a foolish man; and anyway, I am not sure that I can agree with what he said.
LORD POPPLEWELL: My Lords, could my noble friend give any indication of when the Government hope to present these regulations? This matter has been going on for a considerable time, and a lot of research has been

1267
done in connection with it. I am sure that London Transport itself, with its buses, has done a wonderful job in connection with reducing noise. Also, can my noble friend say whether anything can be done in the proposed regulations to stop motorcyclists from taking the baffle plates out of their silencers? If something were done in that direction there would be a considerable reduction in noise.
LORD HILTON OF UPTON: My Lords, I cannot say when I shall be able to give my noble friend the information for which he has asked. All I can do is repeat what I said to the noble Lord who tabled the Question, that this is a first step. The situation will be watched, and it is hoped that at the appropriate time this noise level will be further reduced.
BARONESS ELLIOT OF HARWOOD: My Lords, it is a fact that certain cars which are exported from this country make far less noise than some of the cars used here. Therefore, may I ask the noble Lord whether it would be possible to take steps to see that the noise from cars used here is at least no louder than the level which is allowed from cars for export?
LORD HILTON OF UPTON: My Lords, it is certainly an interesting point which the noble Baroness has raised, and I will see that what she said is brought to the notice of the appropriate Ministry.
LORD CONESFORD: My Lords, may I ask the noble Lord for this information? Are the Government not permitting a good deal more noise than the Wilson Committee recommended?
LORD HILTON OF UPTON: That may be so, slightly, my Lords; but I would remind the noble Lord that this is just the first step, and the situation will be watched. We hope that it will be possible at the appropriate time to reduce the noise.

IMMIGRANTS' TAX FRAUDS
LORD ELTON: My Lords, I beg leave to ask the second Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government whether, in view of the report by the Comptroller and Auditor General that the Inland Revenue has probably lost up to £28,000,000 owing to fraudulent claims for tax reliefs made by immigrants in respect of non-existent dependants, they expect to be able to take effective steps to put an end to these practices.]
LORD BESWICK: My Lords, my right honourable friend the Chancellor of the Exchequer is considering this problem.
LORD ELTON: My Lords, while thanking the noble Lord for that lengthy Answer, may I first ask whether he can confirm the approximate figures quoted in the Question and, if so, specify what period of time they cover? Secondly, may I ask whether the Government consider it possible for any Indian and Pakistani immigrants to obtain in their own countries supporting documents, which can be submitted and accepted with confidence as reliable evidence by our Inland Revenue authorities? if that is possible, why have not all immigrants long ago been warned that, unless they can produce such documents, their claims will not be allowed? If it is not possible, must we not expect much larger losses to the Revenue than we ought to tolerate?
LORD BESWICK: My Lords, the estimated loss is of the order of £5 million to £7 million a year, and this has been going on for about four years As for the possibility of checking the validity of these claims, it is possible to call for supporting evidence. The difficulty is to ensure that it is genuine.
LORD DERWENT: My Lords, is it not quite clear by now that this is an impossible task for the Inland Revenue, who are already overworked? As the Chancellor of the Exchequer is considering the matter, would he also consider whether the time has not now arrived when dependants of immigrants should not qualify for tax relief unless the dependants are in this country?
LORD BESWICK: My Lords, I quite agree with the noble Lord that the Inland Revenue authorities have a very difficult task on their hands if they are going to check on all the alleged dependants for whom tax relief is claimed. The other point which the noble Lord made is one which will, of course, have to be taken into consideration.

HEARING AID BATTERY PRICES
3.8 p.m.
LORD CROOK: 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 are aware that:

(a) Ever Ready RM675 GH mercury cell hearing batteries have been advanced in price from 1s. 10d. to 2s. 9d.,

(b) some hearing aids require the use of as many as five of these in two weeks,

(c) another widely used battery has been increased in price from 2s. 4d. to 4s. 2d.,

whether they do not consider these increases extortionate, and whether in the circumstances they will refer the question of these increases to the National Board for Prices and Incomes.]
THE PARLIAMENTARY SECRETARY, MINISTRY OF HOUSING AND LOCAL GOVERNMENT (LORD KENNET): My Lords, as was announced on Monday, the Secretary of State for Economic Affairs and the Minister of Technology have referred the question of these price increases to the National Board for Prices and Incomes for examination.
LORD CROOK: My Lords, while thanking the noble Lord for the announcement which he has made after the Question was put down, may I now ask him whether a second announcement can be expected from the Government, that they will pin the present prices where they are until the inquiry is over?
LORD KENNET: My Lords, the question of the use of the powers, not to prevent increases but to cause to revert prices which have risen, pending an
1270
examination by the National Board for Prices and Incomes, is a difficult one. The relevant Ministers do not consider it appropriate to use the powers in this case. They regard these powers as something which should be kept for extremely flagrant cases. They doubt whether this is one, because the price of the batteries in question has not risen for eight years past; because there is no patent in respect of that type of battery, so that anybody could copy it and make it at a lower price if he wanted to; and, above all, because this type of battery is net used in National Health Service hearing aids.
LORD PARGITER: My Lords, would not my noble friend agree that it is desirable to have the same policy for both wages and prices?
LORD KENNET: My Lords, as a general proposition the Government naturally have the greatest possible sympathy with what has just been said; but in particular cases one must take account of particular factors.
LORD CROOK: My Lords, would the noble Lord tell me, if he can, why it is that had this been an increase in wages for the deaf the Government would probably have had no difficulty in withholding every single penny of it?
LORD KENNET: My Lords, I am not at all sure that that would be true, after eight years.

MERSEY TUNNEL (LIVERPOOL/WALLASEY) BILL [H.L.]
Read 2a, and committed to the Committee on Unopposed Bills.
SCOTTISH LIFE ASSURANCE COMPANY BILL [H.L.]
Read 2a, and referred to the Examiners.
MID-GLAMORGAN WATER BILL [H.L.]
Read 2a, and committed to the Committee on Unopposed Bills.

PLOUGHING GRANTS (EMERGENCY PAYMENTS) SCHEME 1968
3.12 p.m.
LORD BESWICK: My Lords, I beg to move that the Draft Ploughing Grants (Emergency Payments) Scheme 1968, laid before the House on January 22, be approved. Under this Scheme, farmers who have had their livestock destroyed because of the foot-and-mouth epidemic will be able to obtain grants of £10 an acre towards the cost of ploughing up their grassland. Noble Lords will be aware of the various ways in which the National Agricultural Advisory Service and the N.F.U. are planning to assist farmers in the steady replacement of their lost livestock. As I indicated in our debate on Monday, this special ploughing-up grant will help to ease the pressure for replacement animals and help to maintain stability of prices by assisting farmers to provide an alternative source of income from a cash crop, such as wheat or barley. Farmers may decide to switch to cereals only temporarily, but, even so, it will provide a breathing space during which they can rebuild their flocks or herds in a planned and orderly fashion.
Particular care has been taken to make the conditions of this Scheme as simple as possible, but at the same time we need to ensure that the grant is available only to those who it is intended should benefit from it. I do not think your Lordships will wish me to detail the terms of this Scheme this afternoon, apart from explaining the conditions of eligibility. The majority of farmers affected by this epidemic will have had their animals slaughtered because of an outbreak on their own or an adjacent farm, and these will, of course, be eligible for grant-aid; but others whose animals are slaughtered whilst on agistment or grazed on common land will also be eligible. In the latter case, however, farmers with more than one holding are limited to grant-aid for ploughing-up only one of their holdings, which must be one from which the animals came before being grazed out. I think noble Lords will agree that it would be unreasonable for a farmer who had livestock destroyed on, say, the Welsh Hills to obtain grant for ploughing-up more than one of his other farms in a
1272
part of the country far removed from the infected areas.
Perhaps I can touch briefly on the other main conditions of the Scheme. The land ploughed must be agricultural land, suitable for ploughing and cropping, and must have been down to grass since before October 25, 1967, which, of course, was the date of the first outbreak of the epidemic, and also at the time of ploughing. Grant is payable on completion of ploughing and of one of the subsequent operations listed in the Schedule to the Scheme, as under earlier Ploughing Grants Schemes. My Lords, I am sure from what was said during our debate on Monday that there will be a general welcome to this special form of aid for farmers who have suffered as a result of this most disastrous epidemic. I beg to move.
Moved, That the Draft Ploughing Grants (Emergency Payments) Scheme 1968, laid before the House on January 22, be approved.—[Lord Beswick.]
LORD NUGENT OF GUILDFORD: My Lords, I thank the noble Lord, Lord Beswick, for describing this Scheme to us. I suggest that it is a Scheme which we should certainly welcome for the value that it gives, but I should like to make a point about the very limited help which it will give to this hard-pressed section of the farming community. The estimate of the acreage which is likely to qualify is something of the order of about 250,000 acres. That is assuming an average 100-acre farm for the 2,300 or 2,400 farms which have been affected. I notice that in a debate in another place the Parliamentary Secretary gave the Ministry of Agriculture's estimate of the number of acres which are likely to qualify when applications are made for this grant as being something of the order of 25,000 to 30,000 acres; in other words, my Lords, something like one-tenth of the total acreage concerned. If that acreage is in fact applied for, the value of the grant given would be about £250,000. That would add about 1 per cent. to the total value of the compensation given.
Whilst I recognise the point that the noble Lord, Lord Beswick, made that this grant has a secondary value in so far as farmers who take it up will thereby postpone the purchase of their replacement stock and that will to some extent

1273
have a benefit to all in easing the demand on the market, I would nevertheless make the point that this assistance to the 2,300 stricken farmers is really no more than marginal. I am looking the gift horse in the mouth, and not the noble Lord, whose mouth I know is more than generous; but I want to make the point that I hope his right honourable friend the Minister will take note that some of these dairy farmers, principally, who had not got private insurance policies to cover them against consequential damage and therefore have only the compensation money, will be out of production for at least six months, and probably partially out of production for another twelve to eighteen months after that. They are going to be desperately short of money over the next year or two, and I believe they will need more help than this to help them through and to get them back into production again. Whilst welcoming this grant as a valuable, sensible measure so far as it goes, I would ask him to put it to his right honourable friend that something more is almost certain to be needed, and would he please watch the position very closely to see what further, specific help can be given to these very hard-pressed farmers?
LORD HENLEY: My Lords, I, too, welcome this Scheme without any very great enthusiasm. I welcome it more because I think it is a token of the fact that the Government are aware that rehabilitation is a very important matter than that I think the measure will do very much good. It is not always easy to change your policy of cropping at the last moment—and so far as farmers are concerned, six months is the last moment. Very often, if you are a small man, you have not the equipment, and you may well live in an area where there are not many agricultural contractors. Nevertheless, I think it will give some small measure of help—it is a pretty small one—and I echo very much what the noble Lord, Lord Nugent of Guildford, has said, and hope the Government will find ways to do something more.
I have one last word, my Lords. It has been suggested that this aid might encourage farmers who have been in milk farming to go into arable farming instead, which is not what we want. I understand from various people, include-
1274
ing bodies that I have consulted, that this is not very likely to happen and that there is no danger in this connection. As say, I welcome this Scheme in a rather lukewarm way.
LORD CHAMPION: My Lords, I, too, welcome the Order that is now before the House. I certainly think it is something that we might well do. I would say one thing about the speech of the noble Lord, Lord Nugent. I hope that the farmers will have the good sense from now on to insure against possible losses of the sort he mentioned. Having regard to the fact that we have had these outbreaks from time to time, it was very bad policy for farmers not to take upon themselves the responsibility of insuring against the losses which inevitably they suffer when their animals are slaughtered. The question I would ask my noble friend—I am a little out of touch—is this. Is this special grant in addition to the ploughing grant already in existence for ploughing arable grassland?
THE EARL OF SWINTON: My Lords, before the noble Lord replies, may I just support what was said about farmers' insuring against the losses? It used to be a very small premium. I think we were paying something like 7s. 6d. per cent. It may be more now. Surely it ought to be made a condition of their getting the ploughing grant that farmers should insure against consequential losses. They should be able to do this at a modest premium. I hope the noble Lord will be able to include that in the regulations or, at any rate, give an undertaking that he will make it a condition when action is taken under these regulations.
3.22 p.m.
LORD BESWICK: My Lords, may I thank the House for the general welcome given to this Scheme? It is only a small Scheme, as the noble Lord, Lord Nugent, has said, but it is a generous token in its way—although the amount involved, some £250,000, is possibly small in relation to the total amount of compensation directly paid, which is of the order of £30 million, nevertheless to those who do avail themselves of it, it can be very useful. I should just like to make the point that the figures of £250,000 and 25,000 acres are the Department's estimate of the farmers who will wish to avail themselves of the scheme. More

1275
could qualify and it would be a matter for them to apply, if they come within the terms of the Scheme. That would mean that the amount of compensation would be increased to that extent.
The noble Lord mentioned the losses suffered not only by farmers but by other service industries during this wretched period. We debated this subject thoroughly on Monday and I do not think we need go into it again. I emphasise the fact that no Government so far have accepted any liability for consequential losses. I think it would be impossible so to do. Although I am loth to appear to be preaching to the farmers, if I might I would echo the wise words of my noble friend Lord Champion who pointed out the benefits of insurance. I hope it will be possible for others, from this time on, to take out insurance against consequential losses.
A point was made about credit facilities and the need for money in the period before farmers again get their milk cheques. The banks and the various credit organisations are being very helpful in this respect, and so far we have had no particular complaint about that. My noble friend Lord Champion asked about the scheme being additional to the other Ploughing Grant Schemes. If farmers have benefited under the Part II Scheme they can do so again (if they so qualify) under the terms of this Scheme. But they cannot benefit under the 1967 Scheme and draw the £10 under this Scheme. I hope with that explanation we shall be able to agree to this Order.
LORD ALLERTON: My Lords, before the noble Lord sits down, may I ask whether or not this grant will be subject to tax?
LORD BESWICK: My Lords, the grant itself is not taxed as revenue, but the whole proceeds will enter into the financial returns of the farmer.
VISCOUNT STONEHAVEN: My Lords, could the noble Lord make it clear about the 1967 Scheme? I thought that only the Part II Scheme now applied—which means that the land must have been under grass for a period of over 12 years and that there must be conditions of especial difficulty. Is this not the case?
LORD BESWICK: Yes, my Lords. What I tried to say to my noble friend was that if any farmer had benefited under the Part II Scheme in the past, but now (at the time of this foot-and-mouth disease) had returned to grass and was grazing a herd which was slaughtered, then he can claim again. But he cannot claim as well under the 1967 Scheme.
LORD INGLEWOOD: My Lords, may I ask that the point about taxation be made clear? I am sure that this is the sentence to which publicity will be given in the agricultural Press, and many farmers will want to be clear about it. I do not think the reply that the noble Lord gave was entirely clear. Surely it would be easier in the end if it were cleared up now.
LORD BESWICK: My Lords, I am not sure that in taxation affairs it is wise for me to go into technical language; but what I said was that this £10 per acre will not, itself, be liable to tax; but the net proceeds of the workings of the land so improved will of course be liable.
LORD INGLEWOOD: I thank the noble Lord.
On Question, Motion agreed to.

STREET OFFENCES BILL [H.L.]
3.27 p.m.
LORD CHORLEY: My Lords, I beg to move that this Bill be read a second time. On May 27, 1965, in Preston, Lancashire, a man was observed by the police driving his car slowly about the streets and approaching various women to whom he spoke. The police had no doubt that his objective was to get one of these women to go away with him for purposes of sexual intercourse; and indeed most of the women, if not all, were known to be prostitutes. The police accordingly charged the man with soliciting for an immoral purpose under Section 32 of the Sexual Offences Act 1956, which makes it an offence for a man to solicit for immoral purposes. Before the justices, the point was taken that this section did not cover such a case as this, and the justices, who were satisfied that a prima facie case had been made out against the man, decided

1277
to state a case for the opinion of the High Court as to whether this point taken by the defence was correct or not. In the result the High Court, by a majority, held that the section was concerned with procuring and similar activities, and was not aimed at soliciting for ordinary sexual intercourse. The charge was accordingly dismissed.
Some people have read this case as meaning that a charge could not be brought in respect of what is commonly known as "kerb crawling"; but its implications are very much wider than that and in effect have come to this: that a man cannot be dealt with under this section of the Sexual Offences Act for soliciting a woman for sexual or immoral purposes. This case of Crook v. Edmondson, which was decided just two years ago in 1966, received a great deal of publicity at the time and indeed was received with a great deal of indignation in many quarters, an indignation which I must say I felt myself, because it underlined a fact which had been argued about a great deal during the passing of the Street Offences Act in 1959, that men and women were not placed on a par with each other in regard to this type of offence. There are really two causes why a great deal of indignation was felt about this and why this indignation still persists. The first, and I think the most important of the two, is that, as I say, it underlines the fact that in this part of the criminal law there is discrimination between men and women, and my main object in bringing this Bill before your Lordships' House to-day is to abolish this inequality.
My Lords, if I may say so, this is a particularly apposite time for us to take action of this kind. Your Lordships may have seen that in a little book which has recently been brought out to celebrate this year, Human Rights Year, quite a point is made of the fact that there is still a great deal of inequality between men and women in respect of prostitution. Let us in 1968 secure this further human right. It, is, of course, the right of women to secure their claim for equality with men in this sort of matter. And this year, as your Lordships will remember, is the 50th anniversary of the year in which women were first given some degree of political equality, when they won the vote. So, for both these reasons, it would be very
1278
appropriate for us to give this Bill a Second Reading.
There is also this practical point. It is, as I have said, just two years ago since the case of Crook v. Edmondson was decided, and in the interval nothing whatever has been done to deal with the injustice in the law which was revealed by that case. I think that the late Home Secretary at one stage, in answer to a Question put in another place, said he was thinking of referring this matter to the Law Revision Committee when they had time to deal with it. Perhaps my noble friend Lord Stonham will be able to say how far that has been taken.
The other cause of indignation is this. At the time when the Street Offences Act was going through Parliament the fact that it was aimed at women and at a particular class of woman only, namely, the common prostitute, was brought up in both Houses of Parliament. Indeed, Amendments were moved to substitute the words "any person" for the words "common prostitute" for the purpose of securing equality in this matter. It was then pointed out that a good deal of offensive conduct of the same character as was aimed at by the measure took place on the part of men and that it was only fair and right that the Bill should cover this sort of activity whether by men or by women. In reply to that, the Home Secretary in another place (and this view was supported in your Lordships' House by the then Lord Chancellor) stated that Section 32 of the Sexual Offences Act, which was discussed in the Crook v. Edmondson case, gave the police all the powers they needed to deal with this sort of conduct on the part of men.
My Lords, the decision in Crook v. Edmondson showed that this ministerial view, which was pressed with such confidence on both Houses of Parliament, was quite wrong; and Parliament ought not to have allowed itself to be put off from doing what was right and making the law clear at the time when that Act was going through. I think that this unfortunate episode has a lesson for us all. It shows that it is clearly not safe to withdraw Amendments in a situation of that sort, simply because, a Minister states that the existing law already provides for the situation. We have all heard that sort of statement made more than once, and I think we could not have

1279
a better illustration of the danger of trusting to it than is given in the case of Crook v. Edmondson.
Even if the decision in that case had gone the other way, and had upheld the use of Section 32 in circumstances of this kind, I would still maintain that it is an unsatisfactory measure for dealing with this type of case. It originated, of course, in the Vagrancy Act 1898, which was framed, at any rate in respect of this particular section, for the purpose of catching out the prostitutes' bully; it was concerned, that is to say, with the activities of procuring and similar sorts of activities, as indeed the High Court held in the Crook v. Edmondson case. It was not aimed at ordinary sexual intercourse, and it was very much because of this, and because the Sexual Offences Act was a consolidating Act, merely collecting together earlier statutory enactments on this sort of matter, that the High Court reached its decision in the Crook v. Edmondson case.
The sort of offence at which Section 32 is directed is a much more serious one than that with which the Street Offences Act is concerned. It is an indictable offence and may be punished with up to two years' imprisonment. Even when a case is tried summarily, a sentence of six months' imprisonment can be imposed, whereas the third offence under the Street Offences Act may carry a sentence of only up to three months. So there is obviously a very considerable difference; and in a way it is quite unfair to men, even if this section had been effective for this purpose, that they should be dealt with under a quite different type of Act intended to achieve a very different purpose.
It has been suggested that there are so few cases in which men are involved in soliciting that there is not much need to have further legislation. I think that this is quite wrong. "Kerb crawling" which is very much in point in connection with this Bill, is good proof to the contrary; and already at the time of the Wolfenden Committee Report this practice of "kerb crawling" had become a real nuisance which the Committee recognised, although they did not feel that they were called upon to make any recommendation about it. It is dealt
1280
with in paragraph 267 of their Report, and I should like to draw the attention of your Lordships to that paragraph, because it contains some points which I consider are apposite.
The Report states:
"Our attention has been drawn to what we are informed is an increasingly prevalent form of solicitation by men and women, commonly described as 'kerb crawling'. The form that this takes is that a motorist, driving slowly, and overtaking women pedestrians, halts by them with the intention of inviting them into his car. This is undoubtedly a serious nuisance to many well-behaved women, and it does not appear that, from the point of view of prosecuting those who are responsible for it, it fits conveniently into any existing category of offence except at the point where a specific invitation is addressed to an individual."
That really means that the Committee did not think (their legal advisers must have advised them to this effect) that Section 32 was appropriate. Later, the Committee say that there were difficulties in dealing with this legislatively, because of difficulties of proof and other difficulties, and therefore on the whole they decided not to make any recommendation about it.
Since that time, my Lords, this has undoubtedly become a much more serious evil, especially in the larger cities. It was commented on, indeed, by Mr. Justice Sachs in his judgment in the Crook v. Edmondson case. The Josephine Butler Society, too, which has been very much concerned, and is very much concerned to-day with this matter, and has taken a large part in the campaign for bringing this Bill before your Lordships' House, has a great deal of evidence that this is a very real nuisance in very many large towns up and down the country. I could take up quite a lot of your Lordships' time by quoting from material which has come to me over the last week since this Bill was published. I will content myself with two examples.
One was taken from an address given by a Liverpool magistrate, Miss White, J.P., a year or so ago. She said:
"In Liverpool this is now much more open and chiefly due to the use of cars. It is very persistent, particularly in certain areas of the city. Most unlikely women are molested, followed, and sometimes attacked. Victims have included a woman of 80 and women teachers on the staff of one of the schools, who have been given friendly protection by neighbouring housewives."

1281
There is a good deal more on the same sort of lines, which shows that this is just as rife in the Manchester area, and it is well known to be troublesome all over London.
I have a letter from a young woman who lives in the Notting Hill district, out of which I should like to quote a short passage:
"I am the eldest of a family of five daughters living in Notting Hill—a notorious area of London, but nevertheless one where many ordinary people live and work. In this area there is a constant stream of men in cars and on foot who spend their time accosting any female from the age of 12 to 60 at any time of the day or night. During my schooldays I used to dread the walk home…".
This is going on all over the country at the present time and it is high time it stopped. It is so well known that this is an evil that there is no need for me to spend longer in stressing it to your Lordships. I submit that it is clear enough that this"kerb crawling" is a real nuisance, just as soliciting by women had become a real nuisance in London and other large towns before the Street Offences Act was passed.
It seems to me that under the present law the police are powerless to deal with this nuisance, though it is true to say that when questioned in another place the recent Home Secretary said that there were early Victorian Acts of Parliament under which it is possible in certain circumstances to bring proceedings. This seems to me to be just stalling. I suggest that if one nuisance, that of women, could be remedied by the Street Offences Act, 1959, so can the other nuisance be remedied by another Statute in 1968—the Statute which is before your Lordships' House this afternoon.
I have told your Lordships that I have two reasons for proceeding by way of amending the Street Offences Act instead of by suggesting the addition of a new clause to the Sexual Offences Act. My second reason is that the 1959 Act is aimed solely at the common prostitute. Section 1, which is the operative section, relates solely to the common prostitute. Prostitution, of course, is not a crime in this country. Many people feel that it is unjust to single out a section of the community for isolated treatment in this way. The position is that all citizens are equal before the law. By all means make it an offence to loiter or solicit in the
1282
streets or public places for prostitution, but make it apply to both sexes, to all citizens, and not to just a single class of women singled out as common prostitutes. This is the principle on which the present Bill proceeds.
I have said that the 1959 Act was effective in improving conditions in the streets of London and other large towns. Some may argue that the removal of the term "common prostitute" from the Act will lead to a revival of the situation as it was before 1959. I myself see no compelling reason to believe that this should be so. I think that the main reason why the 1959 Act was effective was because it increased the penalties very substantially, especially after successive offences. I would not contend that the singling out of common prostitutes for punishment did not have some effect. I think it might have had one side effect which probably was not foreseen. It frightened off a large number of amateur prostitutes who did not wish to be singled out and categorised in this way. But if you think about it, there are many reasons why this dealing with common prostitutes only was wrong. One reason is that it places a great deal of power in the hands of the police and also subjects them to temptation. But all this only increases the force of the case for removing common prostitutes as such from the Act.
Before turning to the details of the Bill, I would make one further observation of a general character. It is one that I feel raises a question of importance which noble Lords may wish to discuss this afternoon. It has been suggested that this Bill could involve an interference with the liberty of the subject. Nothing is farther from my intentions than to interfere with the liberty of the subject, and I believe that a careful scrutiny of the Bill will show that nothing of the sort is likely to occur. If any valid criticism of that kind can be put forward, I am prepared to promise here and now that it will have the closest attention and we shall be very ready to accept Amendments at Committee stage to meet such a criticism. I am very sensitive to questions of personal liberty. The National Council for Civil Liberties, of which I was one of the first members and of which I am still a member, wrote to me about this matter. I asked them for chapter and verse of their criticisms and it was only within

1283
the last 24 hours that I received a reply. That reply shows that their main fear is in respect of the clause which gives to the police power of arrest. That is the main point of the noble Earl, Lord Arran, too, and I should like to say a few words about it in a moment.
First, let me say something on the general problem. Every criminal Statute involves a problem of liberty. The point at which a man or woman uses his freedom of action to interfere so seriously with the rights of his fellow citizens that his freedom has to be restrained, and has to be restrained by the criminal law, is always a question of just where we are to draw the line. It seems to me that "kerb crawling" has developed to the stage where is has become a public nuisance and where the liberty of the "kerb crawler" to upset the peace of mind of respectable women will have to be restrained. I certainly agree that ordinary social invitations of man to woman or of woman to man—boy meets girl—whether in the streets or not, should not be the concern of the criminal law, even where they may extend to the act of sexual intercourse. That is not what we are concerned with. But, even so, I should have thought that this is looked after in the Bill by the element of persistence or of molestation which it requires. If it is your Lordships' view that something more explicit is required, I shall be most happy to consider all suggestions to that end, and we can put any situation of that kind right when we deal with these matters in detail in Committee.
I should like now to return for a moment to the police aspect, which I have already mentioned. This is really a special aspect of the problem with which I have been dealing. It arises from Clause 1(5), which gives the police the power to arrest without warrant. This is Lord Arran's main objection to this Bill—indeed, I think his only real objection—and it is for this reason that he proposes to move the Amendment standing in his name, which, as your Lordships know, would have the effect of rejecting the Bill altogether. I am grateful to my noble friend Lord Arran, who with his usual courtesy has explained to me his fears and even given me a copy of the speech that he proposes to make
1284
to your Lordships this afternoon. I have a great deal of sympathy with his views and I should like to answer them now, rather than make a second speech later on.
If they are well grounded, we can, of course, deal with them in Committee; but, in any case, I do not think they are so serious as to merit the rejection of this Bill. I must explain at once that the clause is almost an exact replica of the existing one in the 1959 Act. In drafting the Bill we decided to leave as much of Section 1 of the existing Statute as seemed applicable, which indeed is the whole of the section, except subsection (1)—because it is only the first subsection of Section 1 of the Street Offences Act that goes under this Bill. But we thought it would be best to have the whole of the relevant law which deals with this subject in one Act of Parliament, rather than leave it to be straddled by two. A great deal of criticism has been heard in recent years of the number of different Acts of Parliament at which one has to look to find out what the law is, and in drafting this clause of the Bill we were trying to make a small contribution towards dealing with that situation.
I am aware that this section of the 1959 Act gave rise to a great deal of uneasiness at the time of the passage of that Bill through both Houses of Parliament. But after nearly ten years of operation, it did not appear to us that those fears had proved to be well grounded. There has been little criticism of the behaviour of the police in making arrests under the 1959 Act. Obviously, the police have to play a part in this sort of situation, and on the whole we did not feel that there was any good reason for interfering with this particular part of the 1959 Act. There seemed to be no valid reason, therefore, for amending the subsection, and I hope that my noble friend Lord Stonham may be able to throw some light on this part of the matter.
I do not blink the fact that the widening of the scope of the law which will follow from this Bill increases the chances of mistakes being made by the police in connection with arrests, though I hardly think it is likely to lead to numerous cases of mistake. However, I think that in Committee we should be able to find methods of reducing these risks, and possibly eliminating them

1285
altogether. There has been built up under the present Act a system of cautioning which might well be looked at when we go into Committee on this Bill for the purpose of improving the position. And the sort of Amendments which I mention, by which the actual conditions of criminality can perhaps be tightened up, would also make it more unlikely that mistakes will be made by the police in effecting arrests in cases of this kind.
I suppose at the end of it all your Lordships may have to choose between the hardship of an occasional mistaken arrest and the very real hardship which this situation is causing to large numbers of women at the present time. There is always the possibility of a mistake in arrest being made in the administration of the criminal law, and it is not in any way peculiar to this type of offence. However, in my submission, we ought not to reach a decision about this matter at this stage. It is eminently a matter for detailed discussion on the Committee stage. I hope that my noble friend Lord Arran, after considering these matters, will be prepared not to press his Amendment. After all, if at the end of it all he comes to the conclusion that he is still in doubt as to whether what we have done satisfies his needs, he can move for the elimination of this particular clause from the Bill, or take various other steps which are open to him for safeguarding the position. Therefore, as I say, I hope he will agree not to press his Amendment this afternoon.
I now turn to the terms of the Bill. It is quite a simple Bill and does not require much explanation. First of all, I should like to refer to a small error in the Explanatory Memorandum: in paragraph (e). It begins, "In subsection (5)", and it should be subsection (6). There were originally five subsections; another one was put in, and we failed to notice that the Explanatory Memorandum would need revision on that basis. I should perhaps tell your Lordships that at the time when the Bill was in draft I sent a copy to the Home Office, hoping to receive their comments, but after a fortnight or so, not having heard anything, I assumed that they had not got any, and as Christmas was getting near, I decided to take the First Reading. Shortly afterwards, I received a most useful letter from my noble friend Lord Stonham containing quite a number of
1286
points on the drafting. I do not think he objected to the principle of the Bill at any point, but he made a number of comments on the drafting, and it might be that if I had had these a little earlier the Bill before your Lordships this afternoon would have been rather differently drafted. But all these matters can be put right on the next stage, and I do not think they provide any reason why the Bill should not have a Second Reading this afternoon.
The position of a Member of Parliament introducing a Bill of this kind is a difficult one, because legislative drafting is very much an esoteric art and one has to do one's best with the help available. Actually, I have had a great deal of most valuable help from knowledgeable friends, to whom I take this opportunity of expressing my gratitude. I really think that the Bill is not as badly drafted as all that. There are some Acts on the Statute Book which are not very much better. I have never seen a Bill introduced by a private Member which has not been heavily attacked by the Minister in charge for its drafting, and I have no doubt with a great deal of justice. When the Government be persuaded that Parliament is determined to see a Private Member's Bill become law, then it tends to put the Parliamentary draftsmen at the disposal of the Member who is putting it forward, and that is my hope in the present case: that your Lordships will give the Bill a Second Reading and the Government will then lend me a draftsman so that we can put the Bill into better shape. I understand that the Government are not going to oppose the Bill but are going to take up a neutral position, which indeed is, I suppose, the most a private Member could expect in a situation of this sort.
I need say only a very few words about the actual terms of the Bill. The first subsection is really the operative part of the Bill. It widens the present Act by substituting the words "other person" for the words "common prostitute", and substituting the words "immoral purposes" for the words "purposes of prostitution". In both these respects it widens the scope of the present law quite a bit. The types of conduct aimed at are described by the same expressions as those used in the 1959 Act—that is, the word "loiter" and the word "solicit"—though we have in fact changed the

1287
drafting, we hope for the better. But if the general view is against that, it can always be put back.
Subsections (2) and (3) are really concerned with defining the scope of subsection (1). The first point to notice here, I think, is the expression "soliciting", which is not defined in the present Act at all, and which, it could be argued, for the purposes of sexual offences can be practised only by a woman. This situation obviously ought not to be left as it is, because the main object of this Bill is to establish a uniform rule in these matters for both men and women. Therefore, subsection (2) makes it clear, I hope beyond a peradventure, that both men and women may be guilty of soliciting for the purposes of the Bill. The subsection goes on to make it clear that only the two main types of soliciting—that is, importuning and molestation—are affected; and I think I should explain that casual invitations in the street of the kind I have mentioned, casual invitations not persisted in, are not within the mischief of the Bill. That 'should relieve the fears of those who feel about the civil liberties point.
Under subsection (3) "immoral purposes" includes male or female prostitution, and covers both heterosexual and homosexual conduct. That widens the scope again. It is made quite clear that the word "loiter" will in future cover the "kerb crawler", which is one of the more important objectives of this Bill. Clauses 4 and 5 come from the present Act.
I ought also perhaps to call attention very shortly to subsection (6), which repeals a number of Victorian Statutes, which as operative parts of the criminal law were in fact repealed by the 1959 Act but were kept alive to the extent that convictions under them can be used at the point when it comes to decide what punishment is to be meted out. As I told your Lordships, the punishment goes up in steps under the 1959 Act. These convictions under early Victorian Acts could be used, so to speak, for making the steps. My Lords, very nearly ten years after the Street Offences Act was passed, it seems to me, and to those who think with me, that those Victorian Statutes might very well
1288
be discarded altogether, and we therefore decided to repeal those Statutes again without any qualification of the kind which occurred in the 1959 Act. I do not think that the terms of the Bill require any further explanation, and I beg leave to move that the Bill be read a second time.
Moved, That the Bill be now read 2a.—(Lord Chorley).
4.5 p.m.
THE MINISTER OF STATE, HOME OFFICE (LORD STONHAM): My Lords, the Bill which my noble friend Lord Chorley has just introduced raises very difficult and controversial issues, and, whatever our views on them, we can be grateful to him for putting them before us this afternoon and for giving us an opportunity for what I am sure will be an interesting discussion. May I first say something about the Government's attitude to this debate? Any proposed change in the law on this subject clearly calls for the most searching examination of both the principles which underlie it and the repercussions which it might have on public order and on a grave social problem.
It will be my duty to draw attention to some of the serious issues that underlie the Bill, and to the practical and technical difficulties about it. But it seems to the Government right that your Lordships should be free, having heard the debate, to vote on the issues of principle and to decide whether the Bill should have a Second Reading. I shall not, therefore, seek to advise your Lordships either to oppose or to support the Motion before us. But clearly the Government will have to keep their attitude to the Bill under review in the light of the debate to-day and any further progress the Bill may make.
My own personal views on the Sexual Offences Act 1959 are well known and they have not changed.
VISCOUNT COLVILLE OF CULROSS: Street Offences.
LORD STONHAM: The Street Offences Act. I am grateful to the noble Viscount. It is equally true of the other one. My personal views are well known and they have not changed. Many of your Lordships know that I was among those who strongly opposed the 1959 Act

1289
when it was debated. I thought then, and I think now, that the offence of soliciting, which applies only to a person who when charged is described as a common prostitute, makes it impossible not to import prejudice into the decision whether the woman concerned is guilty or not guilty. Nevertheless, it is one thing to have doubts about particular provisions, and it is quite another to see how the law could be changed without causing further, and perhaps greater, difficulties.
I would remind your Lordships that what we have to discuss to-day is not only a question of principle but the particular provisions of the Bill now before us. My noble friend Lord Chorley very properly said, "If there are parts of it you do not like, well, I shall be very pleased to alter it or even delete the whole clause." I have to deal with the Bill which is now before us, and it is my duty to draw attention to some of the practical issues that arise, and I feel bound to say that, although, as I have already made clear, I sympathise with a great deal my noble friend had to say, I cannot consider that the drafting of his Bill is satisfactory.
The Bill seeks to amend Section 1 of the 1959 Act, which implemented the recommendations on prostitution by the Wolfenden Committee. It was designed to remove a public nuisance from public gaze. There were those, including myself, who doubted whether it would achieve this object, but we must now agree—and indeed my noble friend Lord Chorley agrees—that those misgivings were unjustified. The Act has largely succeeded in its purpose.
In 1958, the last full year before the 1959 Act came into force, there were 19,663 prosecutions against prostitutes. In 1966, the last full year for which I have figures, the number was 2,137. We have confirmed with the police a fact of which, from our own observations, most of us are aware, that there has been a very considerable drop in street activities by prostitutes since the Act came into force. One has only to walk round certain areas of the West End to know that the position is now vastly different, at least in this respect, from what it was before the 1959 Act came into force.
Another fear we had was that, if the 1959 Act succeeded in clearing the streets
1290
it would do so at the cost of creating more serious problems, by driving prostitution underground and, as it were, sweeping the dirt under the carpet. This fear has been justified to the extent that one of the results has been a change in the methods used by prostitutes to contact customers. For example, the call-girls, the proliferation of their cards in certain shops, and the thinly disguised advertisements of various kinds. No one of us seriously imagines that "the oldest profession" will ever be stamped out in any country. But many of these changes were largely predicted by the Wolfenden Committee, who carefully considered the risks and concluded that, in general, they were less injurious than the presence of prostitutes in the streets. We have been keeping the situation under review, and certainly we have no evidence leading to the view that there has been any large-scale underground organisation of prostitutes, or that the 1959 Act has led, in general, to any new and serious problems such as to outweigh its advantages.
There are other aspects of the way in which the Act has worked. It introduced a procedure whereby a woman must be cautioned at least twice before being prosecuted. This procedure is still followed. It has two objects. First, to give an opportunity for the woman cautioned to be put in touch with a probation officer or other social worker in the hope that she might be diverted from a life of prostitution; secondly, as a safeguard for the respectable woman who might otherwise be arrested and prosecuted by mistake.
It must be admitted that the procedure has not been as successful in its first object as we had hoped. Nevertheless, it does happen that a woman occasionally asks to be put in touch with a welfare worker, and we do not dismiss this as of no value. We have no categorical evidence that the procedure has succeeded in preventing absolutely the prosecution of respectable women, but the police tell us that the number of women who apply for cautions to be expunged is negligible, which suggests that cautions are administered only in appropriate cases. Nevertheless, we think that the procedure must have some value for its second purpose, because it gives additional protection against any possibility of prosecuting a respectable woman, and must serve as a reassurance to the public in this respect.

1291
I must also refer to the prostitutes who are sent to prison, because I know that this causes concern to others besides myself; not only the fact of imprisonment, but also because short sentences have very little value for rehabilitation. Under the provisions of the 1959 Act—and I would emphasise that these provisions would be unchanged by the Bill we are now considering—a prostitute cannot be sentenced to a term of imprisonment unless she has been convicted of a similar offence on at least two previous occasions. The maximum sentence is three months. Of the 2,137 prosecutions for prostitution offences in 1966, 46 charges were withdrawn or dismissed, the majority were dealt with by way of a fine, but 269 resulted in sentences of imprisonment, of which 214 cases carried sentences up to three months. Of course I am speaking only of those cases where there was an actual sentence of imprisonment, and not of cases where there was a fine and the person went to prison by default.
What happens to these women when they go to prison—usually, for a variety of quite good reasons, to Holloway Prison? I do not believe that we can do much rehabilitative work with any people who are subject to short sentences, but prostitutes in prison usually improve in health, and we do whatever we can to reclaim them in other ways. True, we get more good resolutions than positive permanent results, but we are doing useful work in some of these cases.
My Lords, I think that describes, as accurately as I possibly can, the position after nearly nine years of the Street Offences Act. What we now have to consider in the Bill before us is whether we can countenance any change that might make it more difficult to enforce the law against street soliciting by prostitutes. I feel bound to say that we think my noble friend's proposal would be more difficult to enforce than the present law, and that a possible consequence would be the presence of more prostitutes on the streets. There are no doubt many people who would be dismayed if that were to happen.
May I now turn to two other issues raised in the Bill? First, the offence created by Clause 1 of the Bill would apply equally to men and women. I hope
1292
that the great majority of people, like myself support equality in these matters between the sexes, but the question to which my noble friend's Bill gives rise is how widely we want the law to bite. As his Bill stands, it would make it an offence for anybody to loiter for immoral purposes. Again, my noble friend says that it is not his intention to interfere with the liberty of the subject, but I shall be mentioning later our doubts about how "immoral purposes" might be interpreted. But leaving aside the very real danger that perfectly innocent West End loiterers might be in danger of arrest, the question I now ask is whether it is intended that a criminal offence would be committed by any youth or girl, man or woman, who loiters in the street and, intentionally or otherwise, makes a casual "pick-up" with the result that it might lead to sexual intercourse? Fornication is a sin, but this Bill makes it a crime to seek it, and on the words now before us it could vastly enlarge the number of people who might be in danger of imprisonment. Is the mere fact of loitering for an "immoral purpose", however we define it, to be sufficient to attract the weight of the criminal law? Or is the proper concern of the criminal law, as at present, conduct which can be shown to have created such a social nuisance that the law must intervene?
Another aspect of the proposal to apply the offence equally to men and women is that it equates soliciting for homosexual purposes with soliciting for heterosexual purposes. As the law stands (and this my noble friend dealt with) it is an offence under Section 32 of the Sexual Offences Act 1956 for a man
"persistently to solicit or importune in a public place for immoral purposes".
This offence carries a maximum penalty of two years' imprisonment, whereas the maximum for women under Section 1 of the 1959 Act is three months. How should equality work? My noble friend's Bill does not seek to repeal Section 32, although it is obviously intended to cover the same conduct.
LORD CHORLEY: No, it is not, my Lords. I think that Crook v. Edmondson makes that quite clear. It is a completely different type of offence. What

1293
we want to do is to bring this sort of conduct into the same category of the summary offence and not treat it as an indictable offence, which it is under the Sexual Offences Act. The sexual offences section is useful for the purpose for which it was originally drafted and for that type of offence, and it is used a good deal in connection with making provision for homosexual conduct.
LORD STONHAM: My Lords, I did not convince my noble friend the first time I discussed this issue with him so I am obviously not going to convince him now. I can only put the point on the interpretation which I am advised is the correct interpretation of the words in his Bill. But if I am right, then there is a risk that it would weaken the law against proselytising activities of homosexuals. This, of course, is not an easy matter to decide and, together with the whole question of the relative penalties, it is something which your Lordships may feel ought to be considered far more fully than is possible in the context of this Bill.
There is one aspect of my noble friend's Bill on which we feel that virtually the whole House will agree. It is that, through the application of Clause 1 to ment as well as women, and by the definition of "loiter" in subsection (3) of the substituted Clause 1, it sets out to deal with the "kerb crawler". My noble friend had a good deal to say about this and quoted examples. I am quite sure that there is no exaggeration about it. In some cities in this country it is a serious menace, and no one can have any sympathy for the men who indulge in this rotten practice. They are a serious nuisance and they are a menace to respectable women. Until recently in my Department we had thought that Section 32 of the Sexual Offences Act could be used to deal with this kind of conduct. By the Crook v. Edmondson judgment in 1966 we find this is no longer the case; and I agree with him that this is a serious deficiency in the present law and there is a great deal to be said, everything to be said, for a clear provision to put it right. But—and I think this is important—I am sorry to say we are uncertain whether my noble friend's Bill as drafted would put it right.
1294
Here, although I do not like troubling your Lordships with what are primarily Committee points, I am bound to say it contains a number of obscurities which make it difficult to say what interpretation should be placed on it and which would in all probability make it therefore difficult to enforce. In a Bill of this kind there must be certainty, absolute clarity of language and no dubiety at all about intention. For example, if one turns to the new clause which the Bill proposes to substitute for Section 1 of the 1959 Act, and if one looks at subsection (1) of the new clause one sees that it ends with the words:
"either to loiter for immoral purposes or to solicit".
It does not say "solicit for immoral purposes". The word "solicit" is not governed by the words "immoral purposes", although in subsection (2) the word "solicit" is defined as to include
"any form of persistent importuning for immoral purposes and molestation for immoral purpose by offensive words or behaviour".
It is not clear in the context of the Bill whether this is an exhaustive definition, but if so, and if it was necessary to show persistence or molestation in every case, the offence would be difficult, if not impossible, to prove; and with a narrow offence of soliciting the offence of loitering for immoral purposes might not on its own be sufficient to prevent the return of prostitutes to the street. The essence of the offence under subsection (1) of the Street Offences Act is loitering or soliciting in a public place for the purpose of prostitution. The element of persistence or molestation is not required and it is this which has given the 1959 Act its substantial deterrent effect.
My noble friend referred to the fact that in his Bill, quite rightly, he has repeated some of the subsections of the 1959 Bill. He referred in particular to his subsection (5), which reads:
"A constable may arrest without warrant anyone he finds in a street or public place and suspects, with reasonable cause, to be committing an offence under this section."
That is exactly the same as subsection (3) in the 1959 Act. But suspects "under this section" of what? Under the 1959 Act he suspects the person concerned of committing the offence, for a common prostitute, of loitering or soliciting in a street or public place for the purpose of

1295
prostitution. In this Bill the person would be committing the offence of loitering "for immoral purposes or to solicit". That is a vastly different thing and we must bear these things in mind when we are considering a Bill of this importance.
Then again, in seeking to deal with the "kerb-crawler"—and here I am 100 per cent. with my noble friend in wanting to deal with the kerb-crawler—my noble friend would make it an offence to loiter in a vehicle for immoral purposes, and he defines "immoral purposes" as including male or female prostitution, whether heterosexual or homosexual. In the Crook v. Edmondson case the court held that the words "immoral purposes" have a restricted meaning and do not cover soliciting by a man or woman for the purpose of having sexual intercourse with her. I cannot say how the courts would interpret my noble friend's words "immoral purposes" in this Bill, but it may be that the courts would again give the words a restricted meaning. That means that my noble friend is relying on the definition in subsection (3) to catch kerb-crawlers—that is, that the definition of "immoral purposes" includes male or female prostitution, whether heterosexual or homosexual. If he does, I must say we doubt whether it does so. It is fairly arguable—this is a point I want to put to my noble friend—that "the purpose of prostitution" would be interpreted as meaning for the purposes of plying that trade, and that this would not apply to the kerb-crawler who is not in the trade. He is just as ready to accost a respectable woman as a prostitute. It may be that our doubts on this point are not well founded, but they are certainly sufficiently strong to indicate that the Bill is not clear enough on it; and surely, if we are setting out to reverse the decision in Crook v. Edmondson the words must be such as to make the issue clear beyond doubt.
My noble friend has referred to my right honourable friend's predecessor in another place and the statement he made on July 27, when he said that he was proposing to ask the Criminal Law Revision Committee to review the law on sexual offences—and that is all sexual offences—including, in the light of Crook v. Edmondson, the law on soliciting by
1296
men for immoral purposes. It is hoped, in reply to my noble friend's question, that this review will begin this year, and therefore the House can be assured that the problems with which the Bill is concerned will be examined very shortly by the Criminal Law Revision Committee, with its accustomed thoroughness and care. I hope the House will share the Government's view that it is preferable for soliciting by men to be looked at in that way in the context of a review of sexual offences as a whole.
My Lords, I have tried to set before you some of the practical doubts and difficulties that arise from a consideration of this Bill, questions, I submit, which must be settled if the Bill is to be made viable. I have indicated that in our view it contains obscurities which make it difficult to say how far it fulfils its intentions or what its effect would be. Again I would remind your Lordships that the whole question of kerb-crawling is shortly to be considered by the Criminal Law Revision Committee together with other aspects of the law. I mention this again simply to give your Lordships as full a picture as possible of the issues surrounding the Bill and in the hope that it will assist you in coming to a decision. My Lords, that decision is entirely for you.
4.29 p.m.
THE EARL OF ARRAN THE EARL OF ARRAN moved, as an Amendment to the Motion for Second Reading, to leave out "now" and insert "this day six months". The noble Earl said: My Lords, in moving this Amendment I must make it clear that I speak as an Independent Peer and in no sense as representing the Benches on which I sit; indeed I suspect that they do not altogether sympathise with my point of view. I am sorry and unwilling to oppose this Motion. The noble Lord, Lord Chorley, strongly supported the recent Sexual Offences Bill, and in words which I still regard as some of the bravest spoken during our many debates on that subject. I have a deep respect for him. I have also a deep respect for his Bill. Its purposes are excellent, and I go along with several of them. But I must say that I believe it is far too wide a Bill, and that one of its major clauses, at least, is a danger to our civil liberties.
But first, let me briefly explore the area in which I find myself in agreement with the noble Lord who introduced the Bill.

1297
I agree entirely that in the matter of soliciting and importuning, men and women should be treated pari passu, as is the case in almost everything these days. Your Lordships will recall that when the Street Offences Act 1959—on which, incidentally, I made my maiden speech—was debated, this point was one which deeply occupied the attention of the House. There was a strong feeling that the client as well as the prostitute herself should be charged, and the words "common prostitute" came in for almost universal reprobation. And I, too, cordially dislike the phrase: it is in itself an a priori condemnation. But to substitute the words "any person", although superficially attractive, is a quite different matter. It brings with it new dangers which I will go into later.
Moreover, as has been pointed out, the position in regard to soliciting men is taken care of under Section 32 of the Sexual Offences Act 1956, in which, as I think the noble Lord, Lord Stonham, said, the penalty on indictment is up to two years' imprisonment, whereas the maximum for women is three months—a discrimination, with a vengeance, in favour of women.
Next like Lord Stonham I wholeheartedly support the attempt to deal with what the Bill calls "loitering in a vehicle"—what is more commonly known as "kerb crawling", to me a particularly odious form of soliciting. It seems likely that when the appropriate legislation is introduced some special clause will need to be inserted to cover this, more especially as Section 32 has recently been held not to cover it. I refer of course to the famous case of Crook v. Edmondson, which perhaps started all this business. This far, but no further, I sympathise with the purposes of the Bill. What I dislike, and dislike most strongly, is the greatly extended powers which this Bill gives to the police to arrest without a warrant "any person"—instead of, as at present, a "common prostitute"—standing in the street whom he suspects of committing the new and wide offence of "loitering for immoral purposes", whatever that may mean.
It is the right of every citizen to loiter and to solicit in public places: for example, to sell flags for charity, to canvass politically, to sell papers or ice cream in the street, or simply to sight-see.
1298
Such behaviour becomes punishable only in certain circumstances, which are not relevant. But under the terms of this Bill, which postulates that it would be an offence for any person to loiter for immoral purposes, a position will arise in which if a man stops to look into a shop window at the same time as an attractive woman, both can be arrested on suspicion by an over-zealous policeman.
My noble cousin, Lord Salisbury, warned most clearly of this danger in the debate on the Street Offences Act, even in its relation to its present wording, the more limited wording of "common prostitute". He said:
"There could arise a case of an innocent woman who went up to a man in the street, perhaps to ask which was the bus to South Kensington, and, failing to get the right answer, she immediately went up to another man to ask the same question. A young and enthusiastic constable might arrest her."
My noble relative was right. There are dangers which could lead to the prosecution of quite innocent persons. But with the substitution of the words "any person" for "common prostitute", the danger would be far greater. The powers given to the police would be vastly extended; they would be far too wide. They would lay the ordinary citizen open to arrest. As has been pointed out, they would endanger civil liberties which is a matter close to the heart of the National Council for Civil Liberties. For this reason, and as I believe this clause to be at the very heart of the Bill, I must oppose it. But this does not mean, as I have tried to point out, that I oppose it root and branch. It has its points. But as a Bill on its own, dealing piecemeal with a few aspects only of the sexual scene, and that in a quite unacceptable way, I cannot go along with it.
As the noble Lord, Lord Stonham, pointed out, Mr. Roy Jenkins, when Home Secretary, requested the Criminal Law Revision Committee to review the laws on sexual offences as a whole, with a view to consolidation. Only a week ago the Law Commission made a similar recommendation to the Lord Chancellor. I personally hope that general legislation along these lines will not be too long delayed—indeed, such an assurance was given us only a few minutes ago by the noble Lord, Lord Stonham. The record of the Government on review and on

1299
consolidation Bills is not one of delay. I observe that the Minutes of February 6 mention seven Consolidation Bills that have been sent to the Joint Committee on Consolidation Bills. I deeply hope that some of the points raised by the noble Lord, Lord Chorley, will at least be considered when such legislation is introduced.
I myself am anxious that a point which worries me shall also be included. Your Lordships may not know it, but at present, whereas under the Sexual Offences Act 1967 it is not an offence for one consenting male to sodomise another, it is still an offence for a man to sodomise a woman, even his own wife. These are among the other absurdities which will need to be cleared up when these matters are reviewed.
Meanwhile, I humbly suggest to the noble Lord, Lord Chorley, that he and I contain ourselves in patience. He can be well satisfied with the impact his Bill has undoubtedly made, and I trust that he may feel able to withdraw it. Frankly, although he spoke most eloquently, nothing he said has convinced me that the Bill is acceptable, nor that a mere change in wording would make it more tolerable. Indeed, the speech of the noble Lord, Lord Stonham, confirms me even more strongly in this feeling. I shall listen with great interest to the speeches which have still to be made, and I am still ready to be convinced. But I must reserve to myself the right to press this Amendment to a Division if the arguments in favour of giving the Bill a Second Reading to-day are not more compelling than those so far advanced. My Lords, I beg to move.
Amendment moved—
Leave out ("now") and insert ("this day six months").—(The Earl of Arran.)
4.39 p.m.
VISCOUNT COLVILLE OF CULROSS: My Lords, I too have listened with great interest to the three speeches that have already been made, and I shall continue to do so in the case of those which follow mine. I am in substantial agreement with the noble Earl, Lord Arran, about the two points that he made: first of all, that discrimination between the sexes in this particular sphere is probably wrong and
1300
ought to be remedied; and secondly, that kerb-crawling has now become something which may reasonably be regarded as the type of social nuisance against which legislation ought to be introduced.
When the noble Lord, Lord Chorley, suggests to us that we can make this Amendment or that Amendment, or that we can put in this or take out that, I wonder whether his Bill is susceptible of that sort of treatment; whether, indeed, it may not have started from the wrong place and have included so much material and gone so wide that its very structure makes it incapable of amendment so as to achieve what he wants. I tend to think that the latter is the case; although, of course, if the noble Lord can persuade me that it is not so, I do not wish to close my mind on this matter.
There are two matters on the drafting of the Bill upon which I should like the noble Lord to enlighten me, since at present I do not follow them at all. First, he referred to subsection (6) of Clause 1, which he said was necessary because certain offences committed under the Acts which are there mentioned continue to be taken into account for the purposes of calculating how many offences a person charged has been guilty of. All those Acts were repealed. They were not only repealed by the first section of the Street Offences Act 1959, which is being reproduced, but they were repealed by Section 5(2) and the Schedule. Therefore, so far as I can make out, no offence could have been committed under any of those Acts since 1959. Whether or not that is the case, to repeal them now makes no difference. And, in any event, whether they are repealed now or whether they were repealed in 1959, if before 1959 somebody was in fact convicted under one of these Acts the mere repeal of those Acts does not alter the effect in any way. Therefore, I cannot see the point of attempting to repeal them again at this stage.
LORD CHORLEY: My Lords, surely if you repeal all that part of the Street Offences Act which enables them to be used in this way, then they have gone for good and cannot be brought up against a woman in the way the noble Viscount is suggesting.
VISCOUNT COLVILLE OF CULROSS: My Lords, I do not think the noble

1301
Lord is right, but perhaps it is more a Committee point, and it may be—I do not know—that we shall have an opportunity to discuss it at a later stage.
A further query I have is this. The noble Lord has rightly pointed out that perhaps the essence of this Bill in regard to kerb-crawling appears in subsection (3) of Clause 1, which states that "loiter" includes loitering in a vehicle. But why does the noble Lord have to legislate for that? Perhaps he has looked at the judgment of the noble and learned Lord, Lord Goddard, when he was Lord Chief Justice in a case which was decided in 1947, called Bridge v. Campbell. It is in some rather obscure reports, but it is available in 177 Law Times, at page 144. It seems to be perfectly clear from what the noble and learned Lord said there that you can loiter in a vehicle, and that is what the law is now. Therefore, I see no point whatever in putting it in again.
Those, perhaps, are small side issues and fall far short of a substantial criticism of the Bill; they could be dealt with. The noble Lord, Lord Stonham, put his finger on the difficulty when he referred to the definition of "immoral purposes" in subsection (3). This illustrates where the noble Lord, Lord Chorley, with the greatest respect to him, has gone wrong. He uses the word "includes". What does that word mean if it does not mean that it is not only what is written down in the Bill, but a whole lot of other things, too, which may fall within that definition? It is all very well for the noble Lord to say that casual invitations between two people in the street to sexual intercourse are not within the mischief of this Bill, but there is no avoiding the fact that they are. This matter concerns me very much, and it is at the root of Lord Arran's point about the wide powers of arrest without warrant because this is precisely the sort of area of danger about which the noble Lord was speaking.
Could it be illustrated in this way? The noble Lord, Lord Stonham, said that if you were to catch the kerb-crawler under the definition of "immoral purposes", he is soliciting, that is to say, importuning for immoral purposes, and those immoral purposes include male or female prostitution, whether heterosexual or homosexual, then two possibilities
1302
might occur. The court might interpret these words narrowly. It might say that the word "include" has the effect of "means", in which case "immoral purposes" would be confined to male or female prostitution of the type set out.
In that case, as Lord Stonham said, the kerb-crawler who importuned one honest, respectable woman would not be caught. If you wish to catch the kerb-crawler under this definition, it is essential that the court should not place a narrow interpretation upon what "immoral purposes" means. They must interpret it to cure the mischief about which the noble Lord, Lord Chorley, and everyone else is concerned by saying that "immoral purposes" includes not only prostitution, but also any other form of sexual intercourse, whether it is prostitution or not and whether, indeed, it was foreseen or intended at the time or not. If that is the only way that you can catch the kerb-crawler, then you are bound to find, on the drafting of this Bill, that any innocent person who stands in a street, whether he is meeting his girl-friend or is really there for some immoral purpose, is liable to be caught.
Furthermore, how on earth does one prove the immoral purposes? How can the policeman go to court and say that a person who was standing, perfectly innocently to some people, or maliciously to others, on the corner of the street was there for immoral purposes or for other purposes? The immoral purposes may have been in his mind or in her mind, or they may not; but he or she has done nothing to indicate in any way what were the purposes for which he or she was standing in the place. I should have thought that this was not only much too wide but that it was incapable of proof. What the noble Lord has done is to attempt to join together Section 32 of the Sexual Offences Act 1956 and Section 1 of the Street Offences Act. I do not agree with the noble Lord that he is leaving Section 32 of the Sexual Offences Act unchanged. I think very much to the contrary, and I cannot see how he can say that the same offences are not being covered both by that section with a severe penalty and by this Bill with a very lenient one.
Let us see what happened about Section 32. Much reference has been made to the case of Crook v Edmondson, but

1303
let us see what Lord Justice Winn has to say. He was dealing with the case as having been taken from the Vagrancy Act 1898, and he said:
"The words 'solicits for immoral purpose' may well, it seems, to me, have been intended to relate not merely to soliciting for homosexual intimacies, but also to the soliciting of customers for prostitutes, sometimes called 'pimping', as well as conceivably to persuasion of girls to become prostitutes."
He then said that the context had a controlling effect on the language in that section. He was very careful to say that he was making a decision solely for the purposes of the facts of that case and not in general.
What is going to happen if Parliament expressly uses these words "for immoral purposes" with the plain intention that it means something much wider? Not only do we involve Section 32 of the Sexual Offences Act within the comprehension of what Parliament is talking about, but we might be in danger of extending Section 32 and at the same time providing a concurrent Statute, in the Bill now before the House, with this totally different penalty. The result would be chaos. I have no doubt at all, unless the noble Lord, Lord Chorley, can explain—and I am still willing to have these matters explained to my satisfaction—that the course which has been suggested, of letting the Criminal Law Revision Committee look at this matter, is the better one.
Of course, there is this to be remembered. Mr. Justice Sachs dissented in Crook v. Edmondson and a certificate was given under Section 1 of the Administration of Justice Act that the matter was of sufficient public importance to come to your Lordships' House sitting in its judicial capacity. It did not, in fact, come, but it is still possible for that case to come up here, and we do not know what the noble and learned Lords may say about it. They may support the majority of the Court in Crook v. Edmondson or they may not. There may be very much different considerations, broader considerations, than were ever thought of by Lord Justice Winn, who was going only on the particular facts of that case for the particular purposes of his judgment, which the Criminal Law Revision Committee will take into account; and they will no doubt take into
1304
account what Mr. Justice Sachs said because, if he was right, then there is no need for this Bill at all.
This is very complicated. I have the greatest faith in a Committee of this House to go in detail into the most complicated statutory language, but I very much doubt whether we should do it so well before we had a Report from the Criminal Law Revision Committee as we should afterwards. I therefore suggest that the noble Lord should consider whether it would be better to wait for that consideration to take place and then see, if it is in fact necessary to do so, whether we can construct a Bill which deals narrowly with the mischief that we want to meet and does not go so wide and so vastly outside the mischief that has been talked about that I think, unless I am persuaded to the contrary, it would be wholly objectionable.
4.53 p.m.
THE LORD BISHOP OF EXETER: My Lords, no one would really disagree with the intention behind this Bill; namely, to eliminate sex discrimination from this area of the law. But there are two aspects of it. So far as equal treatment of the male and female prostitute is concerned, this Bill does not seem to deal with it very much. Section 32 of the Sexual Offences Act deals with male prostitutes, and the Street Offences Act 1959 deals with female prostitutes. They are not treated exactly with equality, but it does not seem that the noble Lord, Lord Chorley, is much concerned about that or wishes to redress that element of sex discrimination in this part of the law.
The other aspect is far more difficult and far more important, and it is to secure equal treatment as between the prostitute and his or her client; that is to say, equal treatment between the prostitute who solicits a client, and a client who solicits a prostitute. This, as the debates in both Houses over the passing of the Street Offences Act 1959 showed, is extremely difficult to do. The difficulty arises from the fact that you are trying to make it a criminal offence to ask someone to do something which is not a criminal offence. When you are trying to do that, it is all too easy to pass from the asking and start attacking the thing that is asked; to slip from talking about the nuisance of soliciting

1305
into talking about the evil of prostitution. This was not done deliberately by any of the speakers, either in this House or in the other place, but it is an extremely difficult thing to avoid.
The other day I read most of the speeches made in this House in 1959, and it became quite apparent to me that, constantly, there was slipping into the speeches of noble Lords an antagonism to prostitution in itself rather than an antagonism to soliciting in public places. Of course, everybody knows that if there were no clients there would be no prostitution. That is one of those blinding "sayings of the week" with which we are regaled from time to time in our Sunday newspapers. Everybody knows that in prostitution the men are at least as guilty as the women, if not more so. So it seems very reasonable to demand that there should be equal treatment for both the prostitutes and the clients.
However, it is not the guilt of prostition which this Bill is attacking, but the guilt of soliciting for immoral purposes. I think no one wants to make prostitution in itself a crime, for to do that would be all against the modern trend, which is not to try to use the criminal law as an instrument for the enforcement of sexual morals. It is the nuisance of soliciting, and that alone, which this Bill is attacking. The Street Offences Act 1959 was quite logical in concentrating not on prostitution, but on the nuisance which was being caused by large numbers of prostitutes congregating on the streets of our large cities. The Act aimed at getting rid of those crowds, not at getting rid of prostitution, and the Act has in very great measure succeeded. It has abated a real nuisance.
It seems to me that the question now is really this: are these male importuners and kerb-crawlers around in such numbers as to create a nuisance comparable with that which existed in the case of the female prostitutes before 1959? If they are around in such numbers, if they do in fact create and constitute so great a public nuisance, then I suppose that a Bill at least along these lines is needed to deal with it. But it would have to be a Bill, as has been pointed out more than once this evening, far more carefully drawn. The phrase, "loiter for immoral purposes", is a terribly imprecise phrase and would, I fear, put almost
1306
every one of your Lordships at risk. If, on the other hand, these male importuners and kerb-crawlers do not constitute so great a public nuisance comparable with that created by the female prostitute before 1959, then in my judgment this Bill is really unnecessary and will in the long run do more harm than good. On balance, as I am at present informed, and with such observation as I have myself been able to make, I am inclined to think that this nuisance is being greatly exaggerated and that the Bill is really unnecessary and should be dropped.
4.58 p.m.
LORD FOOT: My Lords, in rising to address this House for the first time, I am acutely conscious that I suffer from certain personal disadvantages and deficiencies. One of them is that, unlike some of your Lordships, I have not graduated to this House, if "graduated" is the word I want, from another place. I think it is the word I want, because I understand it can mean either "step up" or "step down", according to taste. As a result of my not having had any experience in that other place, I have not had the schooling in the refinements and niceties of polite debate which understand can be learned there. Therefore I am at a greater disadvantage in trying to express to your Lordships the sense of awe and trepidation with which I address your Lordships for the first time, I cast around for some phrase or analogy by which I might hope to convey to your Lordships the emotions which are now assailing me. Perhaps the best way in which I can convey these feelings to you will be to say that it seems to me, as I stand here to-day in this august House, that the glories and splendours of this House's ancient past are matched to-day only by the uncertainties of its future.
My Lords, the other disadvantage from which I suffer (and this is the sort of thing which I am afraid, in these days, one really ought to admit only under caution) is that I am by occupation a solicitor. Not only am I a solicitor, but, what is more—or perhaps what is less—I am a solicitor who has throughout most of his practising life been occupied in magistrates' courts, usually on behalf of the defence. As a result of that, most of my recent speaking experience has been gained from trying to persuade

1307
benches of sceptical magistrates that things are not what they appear to be at first sight.
When I came into this House originally, it seemed to me that any facility or skill which I might have learnt in that kind of advocacy could be of no use or avail to me in your Lordships' House. However, I was a little encouraged by the noble Lord the Leader of the House to think that an ability to explain that things are not what they seem to be might be of some assistance to me in this House. He did not convey this to me directly, but I gained this impression when I heard him speaking a week or so ago about the Government's economic measures, and when he was explaining the Government's economic measures to his own supporters. It seemed to me that, in comparison with him, I had only begun to learn the art of making it plain that things are not what they appear to be.
To turn to this Bill, I approach it with every sympathy for the objects which the noble Lord, Lord Chorley, and his promoters have in mind. In particular, everybody agrees—this appears to be the general consensus of the House—that it is unpleasant, unjustified and indeed offensive, as I think, that in the law of this land there should have been, and should be, this existing discrimination between the woman and the man; and I am sure that that is a matter which is of great concern to all Members of the House. It is on that account, my Lords, that I think this Bill ought to proceed beyond this stage, because I believe that many of the anxieties which have been so admirably expressed about this Bill can in fact be cured on Committee stage by a revision of certain parts of it. I therefore hope that the noble Lord, Lord Chorley, will accept it from me that the criticisms which I have to make are friendly criticisms (not that anything I say might have any effect), not directed to the rejection of this Bill but only to its improvement.
My Lords, I should like, if I may, to take up the point that was made by the noble Lord, Lord Stonham, about the first subsection, because he pointed out what I want to point out; but I want to add something to it. The first subsection of this Bill reads:
1308
"It shall be an offence for any person in a street or public place either to loiter for immoral purposes or to solicit".
As the noble Lord, Lord Stonham, pointed out, quite rightly, that is a change from what we had before, because previously, under the Street Offences Act, both the word "loiter" and the word "solicit" were governed and qualified by the words "for the purpose of prostitution". For some reason which I do not understand—and I hope that the noble Lord, Lord Chorley, will be able to explain this to us—the word "solicit" has been taken out of its accepted place, after the word "loiter", and has been put at the end of the clause. As the noble Lord, Lord Stonham, pointed out, not only does that permit the word "solicit" to mean something more than "solicit for immoral purposes", but it also implies that it does mean something more. But the Bill fails to state what are these other forms of soliciting which may be caught by the Bill—those forms of soliciting which are not soliciting for immoral purposes.
It goes further than that, because I have no doubt that the noble Lord, Lord Chorley, will reply that if you want to find out the real meaning of the word "solicit" under this Bill you have got to look at subsection (2). There you find the words:
"… 'solicit' includes any form of persistent importuning for immoral purposes and molestation for immoral purposes",
and so on. So no doubt it will be said by the noble Lord, Lord Chorley, "There you are: we have made it perfectly plain that when we are talking about soliciting we are talking only about soliciting for immoral purposes". But, as the noble Lord, Lord Stonham, has pointed out, the word "includes" destroys the whole case. I cannot see any reason why subsection (2) should not read:
"The word 'solicit' means, for the purposes of this Act, any form of persistent importuning",
and so on. I hope that the noble Lord, Lord Chorley, will be able to explain this to us, because what is being done here is this. There is this error, this fault, in the first subsection, and it is not corrected by the second subsection; it is compounded by the second subsection.
That is all I want to say about that part of the Bill, except that it is clear to my mind that that fault is curable. It

1309
can very easily be put right. I see no difficulty in this; and that is why I say, up to now, that I hope this Bill will go on to the Committee stage. I am certain that these faults can be corrected then, and I hope that the noble Lord, Lord Stonham, will agree with that point of view or, at any rate, will be prepared to consider agreeing with it.
The second matter is very much more fundamental, and that is the meaning of the words, "for immoral purposes". As your Lordships will realise, subsection (1) effects two changes. First, it substitutes for the words, "a common prostitute" the words "any person", which is the main purpose or object of the Bill as I understand it. But then it goes on to make another change. It substitutes for the words, "for the purpose of prostitution" the words, "for immoral purposes". Now I understand very well the reason why new words have to be put in. It would have been quite inappropriate to leave in the words, "for the purpose of prostitution", because they would have been quite inapt to cover the case of the man who accosts and solicits the respectable woman, since there is no question of prostitution there at all. They would not have covered the case of the male who solicits the male for homosexual purposes, because there may be no question of prostitution there; and they would not have covered the case of the woman who solicits another woman for homosexual purposes, because there may be no element of prostitution there. So I understand the reason why a change had to be made.
But, my Lords, the new words, "for immoral purposes", seem to me to be very objectionable, because they are impossible to define and they introduce into the law a grave element of uncertainty. I do not say that, and I do not ask your Lordships to accept it, as my opinion. I hope to be able to show your Lordships that that is the state of the law in so far as there is any law about this at the moment. That is merely a statement of fact. Of course, this question as to the meaning of the words, "for immoral purposes", was a central issue in the case of Crook v. Edmondson, of which we have been hearing so much.
Perhaps I may follow the noble Viscount, Lord Colville of Culross, in reminding your Lordships of some of the
1310
difficulties which the Divisional Court encountered when trying to define the words "for immoral purposes". It was a powerful Court, comprising the noble and learned Lord the Lord Chief Justice, Lord Justice Winn and Mr. Justice Sachs, as he then was. The first question they asked themselves when they came to consider what was meant by "immoral purposes" was: Does it include all kinds of immorality, or is it to be limited to sexual immorality? They came to the conclusion—and this was a unanimous view of the three members of the Court—that in the context of the Sexual Offences Act 1956 it must be regarded as limited only to sexual immorality.
Then, having got that far, they went on—and from then on they were not agreed. From then on, the majority opinion of the Court, consisting of the Lord Chief Justice and Lord Justice Winn, was that under the Sexual Offences Act it was not an offence for a man to solicit a woman in a street because probably—and "probably" was, I think, the word used by Lord Justice Winn—the intention of the Legislature when it passed the 1956 Act was to include in the word "immoral" only these things which were offences under the 1956 Act; in other words, things that were declared to be illegal under that Act. That was the view of Lord Justice Winn and it was wholly concurred in by the Lord Chief Justice. Then, going further, Lord Justice Winn deliberately said, "I am not prepared to attempt any definition of this section"—meaning, of course, and referring in particular to, the words "immoral purposes".
The attitude taken by the minority of the court, Mr. Justice Sachs, was different. He agreed that he would not embark, or attempt to embark, on any definition of the words, and he said that he thought the meaning of these words ought in every case to be left to the jury. I find myself in the rather unhappy position of differing from both the minority and the majority of the Court. That is not a surprising position for a member of my Party to find himself in; somewhere there may be a definition of the word "liberal".
My reasons for differing from both the minority and the majority of that eminent Court would be of no value or interest to your Lordships, except possibly

1311
as a further illustration of the profound difficulties we are in when we try to define these words, "immoral purposes". I cannot accept the view taken by the majority that the intention of the Legislature (when it said it was an offence for anybody to solicit for immoral purposes) was to limit "immoral purposes" to offences under the Act. It seems to me to be quite illogical. If the Legislature had intended that, all that was necessary to say was that it should be an offence for anybody to solicit for an immoral purpose which is also an illegal offence under this Act. Or, more simply, that it is unlawful to solicit for any illegal purpose under this Act. Therefore I cannot accept that view.
But the view of Mr. Justice Sachs, when he said that he thought it ought to be left to the jury, is even more perplexing. As I have understood it, the whole duty of the judge in a trial is that he shall direct the jury as to the law and as to the meaning of the law. It is then for the jurors to be the judges of the facts. If you do not give any directions to the jury as to what those words mean, then you are bound to have a whole succession of conflicting decisions depending on the predilections and prejudices of any particular jury. There is no field of human opinion in which you can have such widely different and divergent views as in the field of morality. In that field, one man's common sense is another man's prejudice. I recall the aphorism, if it be an aphorism, which is attributed, I think, to Lord Russell. He defined the divergence in this way. He said:
"I am firm-minded, you are obstinate and he is pig-headed."
There could be great difference of opinion as to whether a thing is a prejudice or not, depending on whether it is your own or somebody else's.
The last matter—and I think it is important—to which I want to draw your Lordships' attention in the case of Edmondson v. Crook is this. Lord Justice Winn said in the course of his judgment:
"So far as I know, the words 'immoral purposes' do not appear in any other Statute."
The result is that we cannot look elsewhere to find any judicial meaning of these words. The resulting difficulty is this: your Lordships are being asked
1312
to approve the incorporation of words in this Bill on the meaning of which a very eminent Court were divided; where the majority said, "We cannot define this" or "We refuse to try to define it"; where the minority opinion was that the meaning of the words ought to be left to a jury; and where we know that you cannot look anywhere else to find out what those words mean. It is understandable, when you are drafting legislation, that you will think that you are writing simple words which will cause no difficulties and that later, the human race being as complex as it is, they do cause difficulties. But we are being asked to do something different. We are being asked deliberately to write into a Bill words which eminent people have said they cannot construe. I cannot think it right that we should leave those words as they stand.
I have detained your Lordships for too long; but perhaps I may conclude by giving one or two examples of the grave dangers and difficulties which I think would follow if these words were allowed to stand and if this Bill were passed in this form into law. I am trying this afternoon not to make lawyers' points. But what would be the position of a man who stands outside a cinema in which there is being shown an allegedly pornographic or obscene film and solicits people either by advertising material or otherwise to go in? Would he be soliciting for immoral purposes? This may be an evil, but it is not this sort of evil that this Bill is intended to catch. What would be the position of somebody who does the same thing outside a picture gallery? Recently there was a case where the police seized pictures as being obscene. Would anybody who solicits people to go in and look at those pictures be committing an offence?
My Lords, if a person could be prosecuted for that sort of thing what follows? What follows is that you are going to have a trial within a trial. How can the judge and the jury or the magistrates decide whether it is an immoral purpose without seeing the film or reading the book or looking at the pictures or whatever it may be? They will then have to listen to arguments and evidence upon whether the thing is obscene or pornographic; and we all know from recent cases that some of the greatest

1313
possible difficulties in the courts can arise over trying to decide whether a particular thing is obscene or not.
I would conclude what I have to say this afternoon by reading a passage from the judgment or opinion which was given by the noble and learned Lord, Lord Reid, in the House of Lords in the famous, or notorious, case of Shaw v. The Director of Public Prosecutions which I dare say your Lordships will remember. One of the issues of that case was whether there was any offence known to English law of conspiracy to corrupt public morals, and the question which had to be decided then is very similar to the problem with which we are confronted here of interpreting the words "immoral purposes". I quote these words to your Lordships coming from the noble and learned Lord, Lord Reid, not only because they express very much more effectively than I could the substance of the argument which I have been attempting to address to your Lordships, but also, of course, because they carry with them the great weight of the judicial authority of the noble and learned Lord, Lord Reid.
He said:
"Finally I must advert to the consequences of holding that this very general offence exists"—
that is, the offence of corrupting public morals.
"It has always been thought to be of primary importance that our law, and particularly our criminal law, should be certain that a man should be able to know what conduct is, and what is not, criminal, particularly when heavy penalties are involved. Some suggestion was made that it does not matter if this offence is very wide, no one would ever prosecute; or even if they did, no jury would ever convict if the breach was venal. Indeed, the suggestion goes even further, that the meaning and application of the words 'deprave and corrupt' or the words 'debauch and corrupting' ought to be left entirely for the jury, so that any conduct of this kind is criminal if in the end the jury thinks it so. In other words, you cannot tell what is criminal except by guessing what view a jury will take, and juries' views may vary and may change with the passing of time. Normally the meaning of words is a question of law for the court."
The noble and learned Lord concluded by saying that if a judge did not direct a jury on the words' meaning,
"then the law will be what any jury may happen to think it ought to be and this branch of the law will have lost all the certainty which we rightly prize in other branches of the law."
1314
It seems to me that those words are very compelling, and it is essential that the noble Lord who promoted this Bill should give consideration at a later stage to whether some much more precise definition should be inserted in the Bill. If it is, then I believe that many of the criticisms which have been made by my noble friend Lord Arran and others will be met. I think they can, on the whole, probably be met, and therefore, my Lords, I would invite you to let this Bill go through to the Committee stage so that these matters can there be considered.
My Lords, I have nothing more to add, except to say that I now resume my seat with the comforting thought that on the next occasion when I have the pleasure of addressing your Lordships I shall be permitted, I understand, on the conventions of the House, to be controversial.
5.23 p.m.
LORD ABINGER: My Lords it is my very great privilege to express on behalf of your Lordships the warmest congratulations to the noble Lord, Lord Foot, on his maiden speech. I do this with some diffidence, because I realise very well that he is a much more experienced and much more capable speaker than I can ever aspire to be. I would go further and say that he comes to your Lordships' House with the reputation of being a most formidable orator, and a most witty orator, as well as bearing one of the great names of radical political tradition. One might say, after hearing his speech to-day, that he has fully lived up to our expectations, and I am quite sure that I express the hopes of all of us when I say that we look forward very much to hearing him speak in our House on many occasions in the future.
My Lords, the Bill we are discussing is a small measure, and much of the ground has already been covered. I consider that the aim of the Bill is quite unexceptionable, and I respect the motives of the noble Lord who introduced it and other noble Lords who have spoken partially in its support. At the same time, I believe that there are cogent reasons why it should be opposed. I cannot support it myself, and I shall vote for the Amendment. My main objection to the Bill is that it falls into one of two clear categories of legislation which I believe that we in this House should be very chary of

1315
passing at the present time. The first of these categories is any minor measure, and indeed some major measures, whose execution is likely to throw extra work on the Civil Service, with the consequent inflation of numbers in the Civil Service. I do not know that this measure would seem likely to offend in that way, but it does something which to my mind is every bit as bad. If passed, this Bill would fall into the second category which I have in mind; it would cause additional work for the police.
We know that at the moment the police forces are undermanned. We know that there are no plans to increase their establishments, and we know at the same time that the very important responsibilities of the police are causing them an increased load of work every year. These major responsibilities, I take it, are road safety, traffic control and the combating of serious crime. It is surely vital that we leave the police as free as possible to meet these very difficult tasks and it is, I suggest, both dangerous and irresponsible for us in this House to contemplate legislation about comparatively trivial social nuisances which might have the effect of dissipating the energies of the police, adding to their burdens, and preventing them from concentrating on their main tasks. This then is the fundamental reason why I oppose the Bill and why I should oppose any similar measure. We should surely now be thinking of decreasing the number of statutory offences and not increasing it.
Turning now to the merits of the Bill I confirm that I think its aim is a perfectly good one, but I think the way in which it sets out to achieve this aim carries certain most objectionable risks. Like the noble Lord, Lord Foot, I think we need to look no further than Section 1(1), which says:
"It shall be an offence for any person in a street…to loiter for immoral purposes."
I believe that, with those words, you are trying to create an offence which is quite impossible of proof, because how on earth can you prove intent? How can you suggest, let alone prove, that someone who is loitering, that is, merely walking slowly in a street, has immoral intentions? And what, indeed, is immoral intent? Morality is a subjective pattern of behaviour, and I should have
1316
thought it incapable of clear definition, let alone clear proof. What may be immoral in the eyes of one person may be perfectly moral in the eyes of another. It can only be, I think, in the eye of the beholder. So I suggest that the offence that the subsection attempts to create is, in many ways, as ridiculous as the Communist offence of having "dangerous thoughts". The law cannot be concerned with thoughts or intentions, it must be concerned with clearly defined anti-social acts. I am not forgetting that there is already on the Statute Book—
LORD CHORLEY: My Lords, if I may interrupt the noble Lord for a moment, I wonder whether he has looked at the case of Crook v. Edmondson which has been so much discussed this afternoon? The magistrates in question were quite satisfied that a case had been proved on the facts.
LORD ABINGER: My Lords, I am not familiar with that case. I am aware that there is on the Statute Book an offence of loitering with intent to commit a felony. I do not admit for one moment that that is at all analogous. If a police officer sees a known criminal hanging around a jeweller's premises at 3 o'clock in the morning with a sackful of housebreaking implements over his shoulder, he has reasonable grounds to be suspicious. But his suspicion is corroborated by circumstantial evidence. With this new offence of loitering for immoral purposes, I do not see how in most cases there can be corroborative evidence at all. It will be the judgment of the police officer, and nothing more. The inevitable outcome, I feel, will be this. A few people of guilty intent will be caught, but a much larger number of perfectly innocent people will be wrongly arrested and find themselves facing a most unpleasant charge. In London, at any rate, many of these may be tourists, visitors or guests, who are innocent sightseers in the West End and Soho after dark. So I would allow that this position is unnacceptable and thoroughly bad law.
In conclusion, may I give one illustration of the confusion that could arise out of the Bill as it stands at the moment? A famous Liberal Prime Minister, no less a person than Mr. Gladstone himself, used to be in the

1317
habit of talking to young women in the streets of London after dark. I think that his activity was misguided and not very profitable, but he used to give them little homilies and religious tracts. His intentions were, of course, high-minded, and the reverse of immoral, but under this Bill he would have exposed himself to the risk of arrest on a charge of loitering for immoral purposes. That would have been most unjust, most awkward for Mr. Gladstone and embarrassing for the Liberal Party, and I think that it would have been unfortunate for the country itself. I do not support this measure and I shall vote for the Amendment.
5.33 p.m.
BARONESS GAITSKELL: My Lords, it gives me particular pleasure to congratulate the noble Lord, Lord Foot, on his maiden speech as I work with his distinguished brother, Lord Caradon, in the United Nations. I think that altogether the Foot family have among them an almost unfair amount of distinction. But I hope that we shall hear Lord Foot very often in your Lordships' House. I cannot speak on this Bill with the expertise and the eence that he has; I can speak only in a general way, strictly as a non-lawyer.
Though I appreciate very much the eloquence of my noble friend Lord Chorley, I must say that I am even less enamoured of the 1968 Street Offences Bill than of the 1959 Act, which at least was circumscribed. Perhaps this is because I am no particular glutton for legislation. It seems to me that the main arguments produced this afternoon for this Bill were to cope with kerb-crawling and to get equality between the sexes. As for kerb-crawling I agree completely with the right reverend Prelate the Bishop of Exeter, who wondered whether kerb-crawling was indeed a menace and not just a nuisance. I believe that it is very unpleasant and a great nuisance, but I cannot think that it is a menace. After all, these men do not kidnap the women. The women need only say, "No", and if the man goes on being unpleasant, there is an occasional policeman around.
I do not believe that we need a Bill as wide as this to deal with every public nuisance; and to compare kerb-crawling and the nuisance it causes with the effect of wrongful arrest seems to be very unfair.
1318
A man can lose his job and his reputation if he is even accused of an immoral act and then cleared. So we cannot fairly compare these two things.
In the Human Rights Committee, where I have worked for the last three years in the United Nations, it was the dictatorship countries who always clamoured for legislation to deal with any social problem as if they felt that by making laws they could somehow disinfect the human heart and cleanse it of all evil. The 1959 Street Offences Act, despite all its moral trimmings, had a very limited objective—simply to sweep the prostitutes off the streets; on the assumption, I suppose, of "Out of sight, out of mind." It seemed to me to be only an æsthetic exercise, not really a socially reforming one in depth. That is why those who, like myself, opposed it, thought then that the police had been given greater powers than were justified to deal with that particular public nuisance. In spite of the then Home Secretary's statement, the 1959 Act did not even attempt to deal with the problem of the overnight cafés, or with the inevitable increase in immoral earnings of the middlemen who batten on prostitution.
Further, it did nothing towards discouraging women from adopting prostitution as a way of life. I myself have never taken very seriously the argument that young men are irresistibly tempted by the advances of street prostitutes. The freedom among young people to-day is a very great factor in reducing this temptation. The people who supported the Bill in 1959 tried to make out that it was a valuable contribution to the discouragement of vice and the redemption of those women who were in danger of adopting prostitution as a way of life. I am not suggesting that this can be done by passing a different kind of Bill or law. If we were really setting out to eliminate prostitution, even if this were possible, we could not begin to do this by any Street Offences Bill, because all legal arguments have to start from the cynical fact that prostitution is not illegal in this country.
Even Article 8 of the Declaration on the elimination of Discrimination against Women asked for measures, including legislation, to combat only the exploitation of the prostitution of women—not the elimination of prostitution. So the

1319
1959 Act was a piece of legislation to make certain city streets more agreeable for respectable men and women, and incidentally discriminated against less affluent prostitutes, because the more affluent ones had no need to parade the streets but could practise from their home bases.
We now see that the term "common prostitute" in Section 1(1) has been replaced by the words, "any person". It is ironic to think that the term "any person" in the 1959 Bill was contested so as to protect the respectable woman from wrongful or mistaken arrest. This solicitous attitude towards respectable women is a wry comment on the whole business of soliciting. It is true that the present Bill removes the sex discrimination by substituting the words "any person", but it goes on to redefine soliciting and loitering too widely.
Every criminal Bill contains in it an element of restriction to personal liberty, and I think we must examine all such Bills scrupulously to see just what the results would be in fact to balance the deterrence with interference. As soon as the law becomes involved with sexual morality, its interpretation and execution are questionable. This Bill, for all its moral overtones, has for me two great objections. First, it gives far too wide powers to the police, thus putting too great a burden and responsibility upon an already understaffed and overworked body of men—and I believe that our police are still the most courteous and tolerant men in the world. Secondly, it extends prostitution to the words "immoral purposes", as vague a definition, as other noble Lords have said, as can appear in any legal document.
The Bill suffers from an additional lack of logic. If prostitution is legal, then all the 1968 Bill does is to make it a crime to buy, for the man, what is not a crime to sell, for the woman. Once the idea of annoyance was removed from the 1959 Act, it was obvious that the man involved would become guilty, and this would come about some day. But why extend this punitive legislation? "Let us have a little more punishment all round"—that is what it reads like. All the police had to do under the 1959 Act was to decide whether or not the woman was a prostitute. In this Bill
1320
they are to be the guardians of our morality. They already have sufficient powers for arrest without warrant. Why increase them?
My Lords, it was the great feminist, Josephine Butler herself, who wrote:
"Our laws do not permit, and it is hoped they never will, the arrest of persons, either men or women, because they are known to the police to be persons of immoral character."
Then she went on:
"Our laws permit, and justly so, the arrest or warning of persons guilty of any disorderly conduct in the streets"
and so on. Loitering with intent to commit a felony is one thing; but to loiter with intent to do something which is not a crime, is quite another. And to allow a policeman to arrest without warrant anyone he suspects "with reasonable cause", as the phrase goes, when no evidence is necessary seems to me to be very dangerous. In fact, I have always felt that this phrase, to someone like me who is not a lawyer, is the most imprecise, and even dangerous, phrase that can appear in any legal document.
If this Bill becomes law, it will be a hazard for men and women to walk the streets or to sit in a car without becoming suspect. Let us take the case of a short-sighted middle-aged gentleman going for a walk along Bond Street: he is liable to be arrested at any moment by a zealous policeman. Or let us take the case of a young woman strolling down Bond Street on a hot summer's night, looking into shop windows. I do not know whether noble Lords know it, but the latest Paris fashion is a transparent blouse over a nude top. Supposing this young lady was strolling down Bond Street, it would be too easy to think that she was soliciting, when she was merely peering into shop windows, and to arrest her on suspicion. As for asking someone the way, that really would be asking for trouble.
What is going to be next on the list of public nuisances? Shall we go mediæval and arrest women for adultery, bringing the law up to the 1968 level, and equality between the sexes, and arrest the men, too? Not being completely convinced of either the logic or the justice of the 1959 Street Offences Act, and regarding this Bill as an extension and broadening of that Act, I cannot

1321
support the Bill. I am not seduced by the idea of sex equality, which in this case makes this a much too interfering piece of social legislation. It is not keeping up social reform, but really keeping up social appearances.
Finally, my Lords, if I am allowed to lapse into the moral fervour which this subject always evokes—and I have tried not to do this—I must say that I am more interested in equality of justice rather than in equality of injustice between men and women. Snooping is always open to abuse, whether by the police or by the "Mrs. Grundys", and, as I have said, we have always to balance the deterrence against the interference with liberty.
5.45 p.m.
LORD SOPER: My Lords, I am grateful, as we all are, to my noble friend Lord Chorley for bringing this Bill before us. It has had a rough time, but I intend to speak in principle in its favour. Before I do so, however, I should like to add the congratulations of the whole House to the noble Lord, Lord Foot, on his maiden speech. I was not surprised by its eloquence and brilliance. From what illustrious stock does he come! Has he not already built up a reputation, entirely deserved, outside your Lordships' House; and above all, is his lineage not Methodist? What more could we expect! Indeed, we have been pleasurably entertained and instructed, and I hope very much, with all your Lordships, that we shall have the opportunity of hearing the noble Lord on many future occasions.
I have already said that I intend to support the Bill, and if I may I should like briefly to underline the general background on my own approach to it. I do not regard the basic intention of the 1959 Act as to abate a nuisance but to reduce an evil, and I regard prostitution as an evil which ought to be reduced. I have no hallucinations that it is possible by Act of Parliament to eliminate prostitution. Indeed, professionally speaking, I should say that until the state of Christian perfection arrives prostitution in one form or another will persist. But if you cannot make men good by an Act of Parliament, it is equally true that you can make it much more difficult for them to be bad. In my judgment, this Bill, which the noble Earl is now seeking to amend, is a Bill in which there is a
1322
reasonable opportunity of securing this general reduction by the specific means of abating its flagrancy.
If I may say so without offence, I think there has been a certain amount of naïvety displayed in your Lordships' House as to the difference between prostitution when undertaken in secret or clandestinely, and prostitution when it is publicly advocated and advertised. There can be no doubt, surely, that however inaccurate in precise terms the old adage is, that what the eye does not see the heart does not grieve about, it is nevertheless true that there is an immediacy of temptation about prostitution which, if it does not arise in public places, is not so likely to arise, and may not be fulfilled in the actual act of sexual intercourse. Therefore, it is my wholehearted confidence that the 1959 Act has abated an evil, in so far as it has made it possible for that evil to be restricted.
I have a certain competence here, if I may advance it without pomposity. I have for many years been one of the visiting chaplains at Holloway Jail, and the West End of London comes within the district of my parish in this exercise of a ministry in these two fields. I can entirely support, from the evidence which comes to social workers, such as myself, the basic figures which were given by my noble friend as to reduction in prosecutions and the abatement in the actual incidence of this curse.
Before I speak of the actual improvements which I think must necessarily be entertained for the provisions in the new Bill, let me take, if I may without impudence, a moral note and make no excuse for it. I believe that the permissive society, though it may be exaggerated, has helped to create a sexual laxity and a general condition of sexual improvidence which is probably greater than many of the ordinary people of this country imagine, though I dare say it is less than the scaremongers would have us believe. I have no doubt at all that a further abatement of prostitution is highly desirable, and therefore I looked to this particular Bill with anticipation, and it was not frustrated by the following conditions.
I am very glad that the words "common prostitute" are to be eliminated. They have always been imprecise, and there is a very great deal of difference

1323
between the connotation of the words "common prostitute" to-day from that which obtained twenty years ago. There are amateur prostitutes to-day, if that is not a contradiction in terms, and I would think that the amateur or half-time prostitute is tending to outlive and outdo the old professional common prostitute, who was generally of a much lower social order, or of much lower and more brutalised habits. And, as in lawn tennis—though I think this is the only resemblance—the line of demarcation between the common prostitute, the amateur prostitute, and the professional prostitute is very blurred, and is likely to be much more blurred. It is not a precise term, and therefore, for reasons that were expertly advanced in other regards, I think it an immense advantage that this particular phrase should now disappear.
In the second place, I am quite sure that loitering in a vehicle is not an unsubstantial matter and not a peripheral issue. Anybody who knows anything about the North Carriageway of Hyde Park will know that whereas, once upon a time, there was a constant stream of prostitutes parading along there at night, and at quite a number of times during the day, now there is a constant stream of slow moving cars. I have no doubt as to the size and severity of this evil in respect of ordinary people who are in fact solicited by men for prostitution; and men are solicited by other men for prostitution. Nobody has mentioned the fact that it is becoming increasingly common that some of the drivers of these cars that loiter are women, and in fact loitering for prostitution by prostitutes in cars is by no means uncommon. May I be permitted to say that I wonder whether some of your Lordships really know what is going on.
May I refer next to a very important issue. I have heard a good deal this afternoon about the dangers of putting further responsibilities on the police force. I want to put in a word about the police force, particularly in this regard, because of the peculiar difficulties under which they have to conduct their proper offices. In this new Bill there is a most welcome addition of a definition of what constitutes a "street". One has the most exasperating and frustrating situation in the proper conduct of the law as it
1324
now stands. If a prostitute or procuror, or someone inviting for various kinds of heterosexual or homosexual misbehaviour, stands within the framework of a doorway, the policeman is unable to deal with that particular situation. Therefore, if the present intention is to be adequately and correctly carried out, it must be necessary that there be included within the various places which are called "public" not only the street, which is the present position, but all other places, not least of all the Underground, which has become a more popular place for this particular soliciting.
I want to refer, if I may, to what was very properly and I think most adequately said by the noble Lord, Lord Foot, about the imprecision of the words "immoral purposes"—and I now turn to those things which in the Bill seem to be in need of drastic revision, or even deletion, in Committee. I would myself prefer to think that the equality in this particular respect which is asked for, and which is sorely needed, must be an equality where the precise definition of the guilt that is to be dealt with is in no doubt at all. Therefore, I would think there is need—and I would offer this, if I may, to my noble friend—a great need, instead of using phrases as vague as "immoral purposes", to restrict the provision to "prostitution". In saying this, I must add a fact which has not, if I remember—and I think I have listened to the whole of this debate—been produced before your Lordships.
There is a great deal of nonsensical rubbish, and dangerous rubbish, talked about pornography as if it is a kind of therapeutic exercise, almost a cathartic experience. But the fact of the matter is that there are many people whose balance between heterosexual and homosexual behaviour patterns is pretty delicately poised. It is not so much that pornography is a direct incentive to immoral behaviour; it is that an interest taken in the more perverse forms of heterosexual and homosexual behaviour has introduced many young people, who otherwise would have nothing to do with it, and would know nothing about it, to a country which they find inviting and to which, in many respects, they would like to find their way. And the opportunities at any rate envisaged by my

1325
noble friend are opportunities and demands which I think are not to be ignored. "Immoral purposes" conveys to-day a very much wider variety of heterosexual and homosexual acts, which I believe are in fact wrong and evil; and therefore the attempt to make soliciting or loitering with the intent to provide the opportunities for so doing relate to "public" places is something which, in my judgment, it is needful to incorporate in some Bill. It may well be that precision in these particular fields can be arrived at in this particular Bill.
I do not believe that the police should not receive greater powers to put into effect the provisions of the law as it now stands. I want to end where I began. I am concerned for the abatement of what I regard as a great evil; it is an evil not so much of the deadly sins which ordinary young people commit, as of the unsavoury environment into which they are invited to live their lives to-day.
LORD STONHAM: My Lords, if I may intervene, I am intensely interested in what the noble Lord has said, with particular reference to an increase in the powers of the police to which he has referred. The subsection dealing with the powers of arrest in my noble friend's Bill is in exactly the same words as in the existing Act. In what way, except that those powers refer in two different Bills to different classes of persons, does he think them not adequate?
LORD SOPER: My Lords, police powers will be added to in this Bill, in that they will be able to carry out in other places what previously was possible only in the "street". That is involved in the Bill. If I am in error here, of course the noble Lord will tell me straight away.
LORD STONHAM: My Lords, if my noble friend will look at the Bill again, he will see that my noble friend Lord Chorley has adopted as his definition exactly the same words as are in the 1959 Act. There is no change at all: it is exactly the same.
LORD SOPER: My Lords, if that is so, I am anxious to increase the powers of the police because I believe that the Underground stations must be included. And I am quite sure that what are called the "cottages"—and only those acquain-
1326
ted with the homosexual world will know that a "cottage" is the normal street lavatory where a great deal, perhaps 90 per cent., of this thing goes on—should be included.
May I now conclude by saying, as I began, that I make no apology for "banging", if you like, the moral grounds. I should like to see a vast abatement of the evil of prostitution, and I should like to see that abatement in the particular anticipation and hopes represented by this Bill. I think there are many clauses in this Bill that will need to be carefully considered and which may be modified, and some of them deleted; but I very much hope that the Bill will receive a Second Reading.
5.59 p.m.
THE EARL OF IDDESLEIGH: My Lords I have been absent from your Lordships' Chamber for a great part of the discussion on this Bill. That is reprehensible on my part. I can only plead that I am physically unable to endure this blaze of lights, or anything like this blaze of lights. Let me further assure your Lordships that I have hardly missed a single speech that has been made. My inability enables me to congratulate the noble Lord who made such an effective maiden speech on making also a most admirable television appearance.
There is one point with which I am anxious to deal, and that is the matter of the dual standard of morality which is stated to be involved in this legislation and which is supposed to be corrected by the Bill that we are now discussing. Many of your Lordships know me fairly well. I am sure that a great many of your Lordships disapprove of me, but I do not think many of you will suppose that I am advocating a dual standard of morality; and I say now what I said in 1959. I am not interested in discriminating between men and women; I am discriminating between buyers and sellers. In the eyes of the law, prostitution is a mercantile transaction. It is buying and selling, I need hardly say, what should not be bought and what should not be sold, but it is not an illegal transaction. Therefore when we come to regulate that trade we adopt the same sensible principles as we adopt in regulating any other trade. We place responsibility for

1327
the observance of the law on the seller and not on the buyer.
My Lords, it is quite impracticable to place responsibility on the buyer, much though we may object to him, much though we may reprobate his conduct. The "seller" in this trade, whether it be a male or a female prostitute—poor girl!—is easy to deal with. One cannot be an inconspicuous prostitute. An inconspicuous prostitute would get no customers, and every policeman who has walked a beat knows perfectly well who the prostitutes are and where they are to be found. Therefore it was possible to have a considerable degree of success in implementing the 1959 Act, which has, on the whole, been about as successful as any reasonable person expected it to be. But in this Bill—and here I make my own the argument that fell from the noble Lord, Lord Abinger—we are attempting to do what is not practicable without an enormous increase in the police forces.
We learned on November 29, when we listened to the noble Lord, Lord Rowley, introducing a debate on crime, that the Metropolitan Police were then 6,200 men under strength, and that other provincial police forces were in a similar situation. Since then Her Majesty's Government, in the very necessary pursuit of economy, have placed a limit upon recruitment to the police. But to enforce this Bill would surely require a considerable increase in the number of policemen walking the streets. It may be said that certain districts—Maida Vale has been mentioned—are particularly bad and that they could be policed. But what would be the use of that? The kerb-crawling motorist would seek his extraordinary pleasures elsewhere.
My Lords, let not the noble Lord, Lord Chorley, or anyone else think that I am lacking in sympathy for a Bill which aims at the protection of young women. I have brought up two daughters. But those daughters were told to look for their protection, not from any police force but in the word "No" and in self-respect. If more young women were taught to say "No" when offered a lift, or otherwise accosted, there would be a rapid diminution in the amount of kerb-crawling of which we complain.
1328
I will finally observe, as a rustic, that this Bill was evidently drafted by a Londoner. It is true that the word "lane" occurs in the definition clause. I suspect, however, that the draftsman was thinking of St. Martin's Lane. I am thinking of "Lover's Lane," near the village. There is a great deal of loitering there, and I am afraid that the purposes are not always guaranteed to be wholly moral, but I do not think that the rural constabulary should patrol "Lover's Lane." There is also a mention of footpaths, which I suppose include field paths. I do not think they should be patrolled, unless perhaps the fields are growing a crop of rye. An old song tells us that in those circumstances a body sometimes "meets a body", with consequences of quite unprecedented depravity.
6.8 p.m.
BARONESS BIRK: My Lords, it is usually supposed to be a great opportunity for a woman to have the last word. Here, having the last word—with the exception, of course, of my noble friend Lord Chorley, who will be answering the debate—is extremely difficult. I feel that the ground has been gone over, tilled and cut under until there is not much left. I am supporting this Bill, and up to now I seem to have only two friends, apart from Lord Chorley. The noble Lord, Lord Foot, whom I would congratulate on his maiden speech (although I feel it is rather impertinent of me to do so, as this is my first effort since my maiden) is, I feel, a rather ambivalent ally, and the noble Lord, Lord Soper, who also supported, put what I thought was rather a high standard of Christian perfection which we are unlikely to attain, certainly during our lifetime here.
To me, the main principle behind the Bill is that it recognises that it takes two to make a sexual bargain, and although the right reverend Prelate the Bishop of Exeter said that that was almost one of the sayings of the week, one of the troubles is that it is always being said but no one believes it. Certainly men do not believe it; and a great many women do not. Of course there are a great many faults in the drafting of this Bill; there are a great many words that I do not like. I hesitate to go into all the legal inniceties when there are so many eminent lawyers here (and it always terrifies me even to

1329
mention the word "law" when I see the noble and learned Lord the Lord Chancellor sitting on the Woolsack), but one of the changes I have in mind is that it would be very much simpler if the expression "immoral purposes" were changed in Committee to "sexual purposes". If that had been the case in the 1956 Act maybe the result in the Crook v. Edmondson case might have been different.
I personally should like to see this Bill amended in Committee so that it would be an offence for a person in a street to loiter for sexual purposes or solicit—or as the noble Lord, Lord Foot, put it, probably very much better and more exact. But also there should be inserted somewhere the words "if a nuisance is created", because it seems to me that any transaction between two human beings, unless they are annoying to other people or causing trouble or distress, are their own personal concern. While one may dislike the idea that these transactions are carried out for money, nevertheless I think this is the concern of the people involved. There are—if I may give the reasons why I think so—people who, whatever we do, whatever laws are passed, will still need this sort of service. I thought the noble Earl, Lord Iddesleigh, had a rather extraordinary argument about the buyer and the seller. So far as I know, he is incorrect on that point, certainly so far as drugs are concerned; both are then liable, whether buyers or sellers; and if that is so, I cannot see why, following his logical line of argument, that should not apply to sexual transactions.
One of the reasons why I should like to see this Bill get its Second Reading—and I hope some of these points will impress the noble Earl, Lord Arran, who said he was waiting to be convinced—is that it would give an opportunity to us in Committee to look again into the whole question of punishment by imprisonment both for men and for women. Where I sit on the Bench it is very unusual for us to sentence any prostitute to imprisonment, even if she has been up before us many times. Therefore I think one cannot always argue that imprisonment is a deterrent. I was impressed by Lord Stonham's argument about the improvement in the health of the girls
1330
who go to prison, but surely prison is not the place to send people to improve their health, even if they are prostitutes.
LORD STONHAM: My Lords, I was not suggesting that it was. We are simply administering the Act.
BARONESS BIRK: Yes, I understand, but I was going on to make a further suggestion: that what we need in that case are hostels where prostitutes can be sent when they need some sort of residential treatment; otherwise it is impossible, because of their lack of residence and their floating life, for a probation officer to help them. I have spoken before on hostels, and it seems to me this is another use for them.
On the question of arrest by the police, I am as concerned as anybody here about infringing on the liberty of the individual. I think that if this Bill goes through with a considerable amount of redrafting, what is also necessary is that very careful instructions must be given to the police. That involves what I am coming to in a moment: our whole attitude to what is behind this type of legislation. There does not seem to me to be any reason why the cautioning system which has been built into the 1959 Act should not be built into this, though I understand that for administrative purposes it cannot be put into the Bill. A woman can be cautioned twice before she is brought before the court as a common prostitute. Incidentally I, like everybody here, find that a most revolting phrase; sitting in court it makes me curl up inside when the policeman says, "I know this woman as a common prostitute". All noble Lords have said how they dislike the phrase, and yet we are not doing anything very much about doing away with it.
The question of referring the whole thing to the Criminal Law Revision Committee and waiting for their report seems to me to be wrong for two reasons. I mean no disrespect or disbelief of what my noble friend Lord Stonham has said, that they are "very" shortly going to examine this area, but that means rather longer for those of us who have been impatient for many years. Secondly, I do not think it is a question of codifying or bringing the law up to date. It involves very basic social policy, and

1331
if it is left to a Law Revision Committee I think it will be a case of Parliament opting out of its responsibility to create policy. That is why I think this Bill, with all its faults, ought to go to Committee so that it can be further threshed out, and I believe the result of those deliberations could be of great help to the Criminal Law Revision Committee.
LORD STONHAM: My Lords, I must interrupt my noble friend there. I am not dissenting from any of the views expressed on the Bill, but many very important matters have been and will be referred to the Criminal Law Revision Committee for expert advice, and it is on their advice that Parliament does legislate. To do it the other way round, to legislate first and then go to them for advice, seems rather extraordinary.
BARONESS BIRK: My Lords, I am sorry, but I still disagree with my noble friend, because I think the advice we should be giving is not technical advice but advice on policy, advice on the relationship between men and women, equity of punishment, sex discrimination. This is not a job for the Criminal Law Revision Committee but a job for Parliament. That is my view about this.
I do not like the idea of men being arrested or stopped or approached by the police if they are innocent of creating any sort of nuisance (which again I should like put into the Bill), but, after all, under the present system, as I think has been mentioned—your Lordships must forgive me if I mention it again—it does apply and can apply to women as well. There is the case which the National Council of Women spoke about the other day, of a woman with a dog with a title—the woman had the title, not the dog—who had been approached twice by the police when she was out walking her dog. It may be that she was a slow walker or the dog a compulsive lamp-post user. Nevertheless it does not seem to me less unpleasant than a mistake made with a man.
I think the trouble is that we still refuse to face up to what I feel are really the deeper implications before us. If I may say so, with great respect, I think most of the criticisms of the Bill have been ones that can be dealt with
1332
if the House really believes in the basic principle behind it. I do not think it is beyond the wit of man, certainly not of lawyers (and I am a solicitor by marriage, being married to one), to be able to put this right if it is accepted, if we all agree on exactly what we want. I think those, both men and women, in this House and the other place, and also outside, who are worried that this Bill means the end of the double standard of morality—and many people are anxious this should not happen—can rest assured this is a very small segment and the double standard will still go on for a long time. But this Bill does give us the opportunity and, I think, does open the way to face honestly the implications of prostitution in our society, and also the punishment.
There have been great evolutionary changes since the 1959 Act. The right reverend Prelate the Bishop of Exeter mentioned that throughout the debate on the 1959 Act he felt and understood a sense of antagonism towards prostitution, and though we all know and agree that prostitution is not in itself illegal there is this deep-seated antagonism towards it and therefore towards the prostitute. I think it is time that we stopped turning a blind eye on the men involved while our seeing eye condemns the women. This really is a fact if one looks not only at the history of prostitution but at all the social studies and the analysis of it, and at the behaviour through the ages. It is really fact and not feminist fiction, and I say it reluctantly and advisedly, because quite honestly, most of my best friends are men.
I cannot agree with my noble friend Lady Gaitskell when she says that she would rather see equality of justice than inequality of injustice. One of the unfortunate and hard facts of our society is that only if you first get injustice for men will you ultimately get justice for both men and women. I believe that if this Bill goes through there will be not only protection for the men but improvements in what at the moment we are all agreed should be protection for the women.
BARONESS GAITSKELL: My Lords, may I just interrupt my noble friend for a moment? I did not talk about "inequality of injustice". I wanted equality of justice rather than equality of injustice.
BARONESS BIRK: Yes, I am sorry; but I still mean that, unfortunately, one has to work it through that way in the beginning in order to get the equality of justice for both men and women. Though we all in turn say that we cannot do away with prostitution by legislation, or by waving a magic penal wand, nevertheless it is part of the structure of our monogamist society, which is at the same time both Puritan and prurient; and I think we should be able to deal with these things in a far more honest and human way if we were really to accept them, and did not pretend that by some magic prescription we could eradicate them. I think that to talk like that is to remain rather like sexual Luddites.
The incidence and the type of prostitution vary according to contemporary social mores. At the time of the 1959 Act it was interesting to note that the amount of prostitution in this century compared with the last was really very small indeed. I think the emancipation of women and greater sexual freedom have been the main reasons for this; and it is quite likely that, even in the situation before 1959, one of the reasons for the prowling in the streets was that there were too many prostitutes chasing too few clients. I think it is also important that we should look at, and be aware of, the fact that to sweep these things under the carpet does not get rid of them; they just come out in another place, in circumstances which provide the need and where the clients, the males, on the whole, resort regularly to prostitutes. I think that whereas young men did this much more regularly and more often in earlier days, now, because of far greater sexual freedom, they establish more stable sexual relationships with their own girl friends; and, frankly, I think that that is a healthier thing.
But many people want it both ways. They grumble about permissiveness in the young and, at the same time, they want to get rid of prostitutes, which seems to me rather incompatible. Then of course, there are the married men on the odd night out. The biggest deterrent there, so far as the client is concerned, in relation to kerb-crawling is that his name will be taken and that his wife will find out. So, if the whole exercise is really to clear the streets, this is a far bigger deterrent than anything
1334
else. One of the serious problems which I think will be with us for a considerable time is that there is a hard core of men who, whatever happens, have prostitutes as their only recourse. They are the men who are in some way abnormal, perverts, men who are impotent unless they go to a prostitute or pay money, and men who have no other real sexual alternative. To pretend that this situation does not exist is, again, I think, wrong; and to talk of sweeping it all under the carpet is wrong.
Then there are the people who are travelling—seamen, immigrants, and people who have not their families with them and yet have to find some sort of sexual outlet. This has caused one of the great problems in many of our cities. There has been an increase in the number of immigrants coming here alone, without their families. It seems to me that we want the sort of laws which avoid offending public susceptibilities, which protect the young girl and, so far as is possible, protect the prostitutes themselves from ponces, many of whom, incidentally, are chosen by the prostitutes. I remember, when I was a visitor to Holloway, speaking to some prostitutes there. They pointed out with great disgust that many of their customers did not want sexual intercourse with them, but just wanted somebody to talk to. They were most contemptuous of these men who, they felt, were paying good money for nothing. This indicates the loneliness and incapacity for love in the life of a great many people, which we just cannot ignore.
What has happened since the streets were cleared is that we have had an increase in the "call girl" system, which I would think probably is a much better thing. I am not suggesting that at this stage we should think in terms of the system in West Germany, where there are special hostels for prostitutes, and where there is—not exactly licensed prostitution, but a certain amount of control and of inspection, and people know where to go if they want to visit a prostitute. It keeps the streets clean and it keeps up the health standards. Nor I think do we want to go as far as the Swedish specialist who talked of prostitution as part of sex therapy. All I want us to do is to accept the need for equality of treatment; to accept that prostitution is still part of the structure of our society and to try to

1335
draft something on the Committee stage which will meet the needs equally, not necessarily of punishment—although to a certain extent there must be punishment—but to modify what we have written into our Statutes at the moment. We must make things equal for both parties and recognise that the man who is solicited usually sets out to be solicited. In fact there is only a technical difference.
I think that this Bill, carefully amended, gives the opportunity to right some of the previous wrongs. By giving it a Second Reading I think that this Chamber will show the courage, the virility and the potency required to play an effective part in our Legislature.
6.29 p.m.
BARONESS WOOTTON OF ABINGER: My Lords, I find myself in great difficulty in regard to this Bill, a greater difficulty than I have ever been in before in relation to a Bill before your Lordships' House. At the time of the passing of the 1959 Act I was one who deprecated most strongly that an offence was created which could be committed only by a class of persons labelled as "common prostitutes". That seemed to me to be entirely contrary to the principles of our law. In fact it was not an innovation, but it was entirely contrary to the principles of our law: that we were all bound by the same laws, and that an act which is illegal on the part of a common prostitute is illegal on the part of anybody else, or not at all. But when it comes to the extensions which we find later in the Bill, the extension of the definitions of "immoral purposes", of "loitering" and of "streets", it seems to me that we are going into territory which is so vast and so uncharted that we shall be giving a discretion to the constable who has to make arrests which taxes even his powers far more than they ought to be taxed.
My noble friend Lord Chorley in introducing the Bill was most forthcoming in suggesting that we might alter this, that and the other at Committee stage. But I find it very difficult to see how one can support a Bill so far as Clause 1(1)—and I passionately support that particular provision—is concerned, and then move in Committee that the whole of the rest should be left out. It is perhaps fortunate for me that an urgent engagement may
1336
put me in a position that I shall not have to make up my mind on this matter; but if the Bill receives a Second Reading I hope that I shall have an opportunity in Committee of moving that the whole of the rest be left out.
LORD FEVERSHAM: My Lords, I must apologise to the noble Baroness, Lady Birk, for introducing yet another "last word but one." I had not intended to speak in this debate, and I have just one question to ask of the noble Lord, Lord Chorley. Does it not occur to him that this Bill harbours untold danger for "hippy" badge-sporters? It is quite possible that the noble Lord might wander into a boutique to buy a tie. If he was in the King's Road, then the boutique might easily supply a free "fun badge" with the purchase, and the badge could well read, "I am free. How about you". Absentmindedly sticking the badge to his lapel, Lord Chorley might then wander out into the street where, under the terms of this Bill, his freedom so brazenly proclaimed on his chest will be ended in a trice.
6.33 p.m.
LORD CHORLEY: My Lords, I should like to make two remarks to my noble friend Lord Arran directly, but I would ask the House in general to reject his Amendment. In reply to the last speaker, what he has said is quite misconceived under this Bill, and I should not think there is any danger of the circumstances which he has suggested. The noble Earl, Lord Arran, very understandably, is worried about the position of the police. He quoted from a speech of the noble Marquess, Lord Salisbury, in the 1959 debate in which he made our flesh creep. I remember the speech very well; it was very impressive and dealt with the terrible position of a lady asking which bus went to where, not getting the answer, and asking somebody else. That is the sort of imaginary situation upon which the noble Earl, Lord Arran, thrives. The answer to it is that it just has not happened. The Street Offences Act has been operating now for nearly ten years, and this just has not happened. I have no doubt that the sort of flesh-creeping questions which Lord Arran has been putting forward this afternoon just will not happen either. In any event, it might be possible to put in some safeguards.

1337
I was much impressed by the maiden speech of the noble Lord, Lord Foot, on which I should like to congratulate him, since it gave a most valuable analysis of the legal problems involved in carrying through this Bill or any similar Bill. I was much encouraged by what he said about the possibility of going into these problems thoroughly and in detail at Committee Stage. I feel that then we should be able to do a considerable service both to Parliament and to the country. If the noble Earl, Lord Arran, is not prepared to withdraw his Amendment, I ask the House to give the Bill a chance to get a Second Reading and not to reject it in the sort of way suggested by the noble Earl, so that we may make a careful analysis of this matter and attempt to look into these problems and deal with them.
The noble Baroness, Lady Birk, in her most interesting speech, made a very sound point when she said that the Law Revision Committee is not a body concerned with this sort of Bill. It may be concerned with fitting it into the general system of the criminal law as it applies to sexual cases, but here we are concerned with social policy. The Law Revision Committee is a Committee of judges and outstanding members of the Bar. I do not think it has a woman on it. It is a most valuable Committee, but I do not think that this is the sort of job which it should do, and it is not the sort of job that has been given to it to do. As I understand it, that Committee is being given the job of surveying the whole of the field of law relating to sexual offences, not with any particular concern for the matter before us. This is a matter in which social problems are involved, prob-
lems of the kind which only Parliament is professionally equipped to deal with. We can deal with it in careful detail only on Committee stage, not in a general debate of this kind across the Floor of the House. Therefore, I ask your Lordships, if the noble Earl insists on pressing his Amendment to a Division, to vote against it.
6.38 p.m.
THE EARL OF ARRAN: My Lords, I have listened with interest to the many reasoned arguments put forward by distinguished speakers this afternoon. If I may be permitted to sum up, what has emerged is that, while the purposes of the Bill are accepted as excellent, the dangers, in the minds of many in regard to the Bill as it now stands are quite intolerable. If it were intended to leave these matters where they are, I would suggest that the House should persevere with this Bill; but the noble Lord, Lord Stonham, has made it unequivocally clear that something is going to be done—and soon—to put right what is obviously wrong. It was a firm undertaking, and I personally believe it. Lord Chorley's banner is a glorious one, though battered and something of a patchwork banner. I believe that its purposes will be better incorporated in another Bill, a safer Bill, a more comprehensive Bill, a Bill which we hope will come very soon. Therefore, while I congratulate the noble Lord on what he has achieved this afternoon, I shall presume to press my Amendment.
6.43 p.m.
On Question, Whether the said Amendment shall be agreed to?
Their Lordships divided: Contents, 50; Not-Contents, 29.

CONTENTS

Abinger, L.

Faringdon, L.

Monckton of Brenchley, V.

Arran, E. [Teller.]

Ferrier, L.

Mowbray and Stourton, L.

Auckland, L.

Feversham, L.

Oakshott, L.

Barrington, V.

Fortescue, E.

Ruthven of Freeland, Ly. [Teller.]

Belstead, L.

Gaitskell, Bs.

Birdwood, L.

Garnsworthy, L.

St. Aldwyn, E.

Brooke of Cumnor, L.

Greenway, L.

Sempill, Ly.

Carron, L.

Headfort, M.

Shackleton, L. [L. Privy Seal.]

Colville of Culross, V.

Henley, L.

Stonehaven, V.

Conesford, L.

Iddesleigh, E.

Strang, L.

Cork and Orrery, E.

Leatherland, L.

Strange of Knokin, Bs.

Derwent, L.

Lindgren, L.

Swansea, L.

Dilhorne, V.

McCorquodale of Newton, L.

Vivian, L.

Dundee, E.

Massereene and Ferrard, V.

Wedgwood, L.

Effingham, E.

Merrivale, L.

Woolton, E.

Emmet of Amberley, Bs.

Mills, V.

Wootton of Abinger, Bs.

Evans of Hungershall, L.

Milverton, L.

Ypres, E.

NOT-CONTENTS

Addison, V.

Elliot of Harwood, Bs.

Serota, Bs.

Ailwyn, L.

Hall, V.

Sherfield, L.

Airedale, L.

Latham, L.

Soper, L.

Asquith of Yarnbury, Bs.

Longford, E.

Sorensen, L.

Beswick, L.

Milner of Leeds, L.

Stamp, L.

Birk, Bs. [Teller.]

Peddie, L.

Stocks, Bs.

Bowles, L.

Phillips, Bs.

Strabolgi, L.

Brockway, L.

Plummer, Bs.

Summerskill, Bs.

Chorley, L. [Teller.]

Ritchie-Calder, L.

Wilberforce, L.

Clwyd, L.

St. Davids, V.

Resolved in the affirmative, and Amendment agreed to accordingly.

CIVIL EVIDENCE BILL [H.L.]
6.48 p.m.
THE LORD CHANCELLOR (LORD GARDINER): My Lords, the rules of evidence are lawyers' law, and many of your Lordships may perhaps be a little apprehensive lest you should be about to hear a discussion of matters which are neither interesting nor intelligible outside the magic circle. I confess at once that this Bill does deal with a technical subject and that I cannot altogether avoid technicalities; but I hope that, at the same time, I can convince the House that the rules of evidence are not only of great practical importance but also (at least, on occasion) of general public interest. I naturally personally regret that the Second Reading of a Bill which is of sufficient substance to occupy 22 pages should start at what is rather a late hour in your Lordships' House, but I apprehend that those who arrange our Business cannot always foresee exactly how long earlier matters on the Order Paper may take.
The Bill deals only with evidence in civil cases. It does not touch criminal practice or procedure (except in some very minor matters in the Schedules, which I shall not have to deal with) and the House will not therefore have to consider those very difficult questions which can arise on such matters as voluntary confessions, the judges' rules, or "putting one's character in issue". Those are all matters which the Criminal Law Revision Committee is currently considering, and in due course we shall no doubt have the benefit of their advice upon them. But any legislation in that field must come at a later stage.
Meanwhile, we have had three most useful Reports from the Law Reform
1340
Committee dealing with certain aspects of evidence in civil cases, and the Bill which I am now commending to the House implements those Reports. Before I explain to the House what the Bill does, I should like to take the opportunity of thanking the Committee for their Reports. They have involved the spending of much time and trouble, and, as is almost invariably the case, the main burden has fallen on those who are already busy men. I am sure that I speak for the whole House when I say that we are greatly in the debt of my noble and learned friend Lord Pearson, the Chairman of the Law Reform Committee, and his colleagues.
I suppose, my Lords, that the one rule about evidence which everyone knows is, "What the soldier said is not evidence"; or, as it is sometimes put, "What the soldier said to the girl is not evidence"—although I apprehend that the result would be the same whatever the sex of the addressee. This, the so-called "hearsay rule", probably gives rise to more difficulties than any other aspect of the law of evidence. Fundamentally, it is beyond question a sound principle that, if you want to prove a fact which your opponent denies, you should have to call the man who saw what happened and not try to rely on what he said to someone else about it. But, as the Law Reform Committee observed, strict application of the rule can exclude valuable evidence; moreover, compliance with it may, and often does, lead to unnecessary expense and wasting of witnesses' time. Besides, in the course of time the rule itself has inevitably been eroded by exceptions and qualifications which experience has shown to be necessary.
The Law Reform Committee recommended a fundamental change in the attitude of the law to hearsay. They proposed that statements made out of court by somebody who had direct personal

1341
knowledge of a fact should prima facie be admissible to prove that fact provided that the party opposite were given adequate notice, so that he could make his own inquiries as to the reliability of the statement, and the right to insist that the maker of the statement is called, if available, so that he can be cross-examined.
In practice, as the Committee pointed out, where the fact is really in dispute the eye-witness will always be called, if available, because either the plaintiff will want to show the court what a good witness he really is or the defendant will insist on the plaintiff's putting him in the witness-box so that he can be cross-examined. But in many cases, once the defendant knows of what the statement consists and the circumstances in which it was given, he will not seriously dispute its accuracy, and it is then a waste of time and money to bring the maker to court and keep him hanging about if, in the event, nobody is going to challenge what he says. Besides, there are always the cases where a really valuable statement, contemporary with the event to which it relates, was made by someone who cannot be called at the trial. In such a case, if the plaintiff cannot put the statement in he may be completely unable to prove his case, however cogent and reliable the out-of-court statement may have been.
It is not surprising that the Committee found good reasons for reconsidering the hearsay rule. Part I of the Bill gives effect to their recommendations, as well as making other important changes in the law. The House will not expect me to go into any detail to-night, but it may be useful if I explain very briefly what the individual clauses do; and, as it is somewhat detailed and technical, your Lordships will forgive me if I stick to my notes rather closely.
Clause 1 in effect abolishes the Common Law exceptions to the hearsay rule. Statutory exceptions, of which there are many, are not affected, but all Common Law exceptions are either superseded by the Bill or are not preserved at all. Those which are not covered by the main provisions in Part I are converted by Clause 9 into statutory rules. Clause 2 is the crux of the Bill. As I have already explained, it constitutes a fundamental change in the attitude to
1342
hearsay by making what I may call "first-hand hearsay" generally admissible, but subject to rules of court. This latter provision is very important because, as Clause 8 makes clear, it is under rules of court that, first, the party seeking to rely on hearsay must give notice of it, and, secondly, his opponent can by counter-notice insist on the maker of the statement, if available, being called as a witness, but at his own risk as to costs if he so insists without good reason. Clause 2 also deals with the situation where a party wants to put in his own witness's out-of-court statement. As was recommended by the Law Reform Committee, the admissibility of such a statement is always subject to the court's discretion.
Clause 2, as no doubt many of your Lordships have realised, is an extension of the Evidence Act 1938, under which documentary hearsay is already admissible but subject to qualifications which have restricted its admissibility to such an extent that the Act has not been of great practical value. The defects in the Act are discussed in detail in the Committee's Report, and I will not go into them here. But the major change effected by the Bill is that oral hearsay, subject to the procedural safeguards I have mentioned, is to be admissible as well as written hearsay. In other words, what the soldier said, as well as what he wrote, is, or may be, evidence. Except on one point, the Bill does no more than make certain evidence admissible. It does not mean that the evidence is conclusive. In every case except one, to which I shall come later, it will, of course, be open to be rebutted.
Clause 3 does not derive directly from the Committee's Report, although its subject-matter is touched on. As the law stands, a witness's previous out-of-court statements can sometimes be put in to show that he has contradicted himself, or the reverse, or because they are contained in a document which he has used to "refresh his memory". But when so put in, they are said not to be "evidence of the facts stated". This is somewhat unrealistic. The judge is told that the witness, who has just said that he spent all Christmas Day in bed with 'flu, wrote a letter on Boxing Day describing what a lovely evening he had at the Ritz. It does not make sense

1343
to the laymen if the law says: "That is evidence that what the witness said in the witness-box is untrue, but the judge cannot in any circumstances rely on it as showing that he was at the Ritz on Christmas Day". Clause 3 lets the judge rely on the statement as evidence that the witness was at the Ritz.
I can deal shortly with Clause 4. The Evidence Act makes documentary records admissible, but again subject to unnecessarily restrictive conditions. Clause 4 makes them more readily admissible, again subject to rules of court and therefore to the notice and counter-notice procedure. The principal change from the Evidence Act is that the recorder does not have to have obtained the information directly from an informant with personal knowledge: it is sufficient if it is transmitted to him through others, provided that each one was under a duty to pass the information on.
Clause 5 may prove to be of great importance. Its object is to facilitate the use of what I may loosely describe as "computerised records" in civil proceedings. The Law Reform Committee do not deal specifically with this topic, but they did advert to the implications of modern methods of recording information. Since their Report was published, I have received from many quarters representations about the desirability of including in implementing legislation provision which would make this type of record admissible. I think the House will agree with the general proposition that the civil law ought to adapt itself to fit contemporary commercial practice—a proposition which was acted on in the 18th century with remarkable success by that great judge, Lord Mansfield. We have computers; they are already widely used, and they will shortly be used more widely still; and the law of evidence must take account of this fact.
Clause 5 is based on the principle that where a computer is regularly used for the purpose of a particular regular activity—for example, to work out the weekly pay-sheet for a company—then a statement contained in the final "print-out", or whatever form the eventual product is, is in all probability accurate and should therefore be admissible in evidence. This seems reasonable, because no business is going to "computerise" itself at vast
1344
expense unless the result is going to be probably accurate and reliable. Again, such evidence will be open to challenge. For various reasons, some obvious and some less so, computerised records cannot be fitted into the framework of the Evidence Act, 1958, either as it is now or as modified by the Bill; hence Clause 5. The essence is that a statement which fulfils the conditions set out in subsection (1) is admissible, but, as in the other cases which occur under Clauses 2 and 4, the party seeking to put the statement in must give notice and rules of court will be able to require him to name persons concerned in producing the statement whom his opponent can insist on his calling as evidence and can then cross-examine. There are a great many points of detail arising on Clause 5, but I think it would be more convenient to discuss them in Committee. I am not absolutely satisfied on some points about the drafting although I have had the advantage of a good deal of advice from experts.
Clause 6 reproduces in substance, provisions currently in the Evidence Act which allow documents to be proved by copies and gives the court guidance as to the matters to be taken into account when considering documentary hearsay. Clause 7 makes provision for challenging, or supporting, the credibility of the maker of an out-of-court statement which is admissible in evidence, much on the same lines as a witness's credibility can be challenged or supported; it is based on the Law Reform Committee's recommendation. Clause 8 provides for the necessary rules of court. Inevitably, when much of the Law Reform Committee's recommendations depends on procedural matters, such as the giving of notices and counter-notices, much of the law must be in the rules. The framework of the notice and counter-notice procedure is in Clause 8, but the details must be left to rules, since they will vary from court to court.
I should perhaps draw this House's attention briefly to four points: first, a party who complies with the rules and provides no counter-notice will be entitled to put his hearsay evidence in. He will thus be spared the expense of having the witness ready "just in case" and he will know this well before the trial. Second, the circumstances in which a

1345
person is to be treated as unavailable as a witness (and which thus let in his out-of-court statement as of right) have been expanded to include cases in which he cannot be identified or expected to remember the event (in this the Bill follows the recent Criminal Evidence Act 1965).
Third, the rules will be able to give the courts an overriding discretion to admit hearsay notwithstanding failure to serve the appropriate notices, et cetera. This again is in accordance with the Committee's recommendation. And, fourth, the Bill does not, as the Committee suggested, set out the rules in a schedule. I do not think it would really be practicable to do so, and in any event it would be impossible to schedule the county court and magistrates' courts' rules (not to mention other courts and tribunals). But, even if this was not the case, I think there is a lot to be said for letting rules of court be made by the appropriate rule committee.
Clause 9 makes a number of essential Common Law exceptions to the hearsay rule, which are not replaced or superseded by the Bill, operate as statutory rules, thus enabling the Bill to make a clean sweep of the Common Law exceptions. Apart from admissions, these Common Law exceptions are those which allow second-hand hearsay (that is, statements made out-of-court by people with no direct knowledge of the facts) to be admitted. Second-hand hearsay is not within Clause 2 and may not fall within Clause 4 or 5, but in the special circumstances it ought obviously to be admitted. Clause 10 contains the necessary definition, et cetera. The only point I need make on it is that it is intended to make it possible to use enlargements of microfilms of documents by treating them as copies. There is currently some doubt about this, and the subject is one of great importance in view of the number of undertakings which make a practice of microfilming and then destroying bulky papers. As at present advised, I think I shall need to move some drafting Amendments in Committee to make this clearer.
Part II of this Bill implements two other Reports of the Law Reform Committee. The subjects dealt with are rather less technical than hearsay and certainly some of them raise matters of
1346
considerable public interest. Clause 11 reverses what is known as the "rule in Hollington v. Hewthorn" and makes a previous conviction before a court in the United Kingdom admissible in evidence in civil proceedings to prove that the person convicted committed the conduct on which the conviction was based. The House may remember that we discussed this at a late stage of the Criminal Justice Bill last summer, when the noble and learned Viscount, Lord Dilhorne, moved an Amendment to make such convictions conclusive. For the reasons I explained on that occasion, I had doubts about making them conclusive and the Law Reform Committee apparently share those doubts, because they have recommended that the previous conviction should be evidence but that any party disputing it should be entitled to do so. The Bill adopts this course, with the result that the burden will be on a party who seeks to dispute the correctness of the conviction.
I do not think there is any need for me to argue at length the merits of the policy. Recent cases have emphasised the unsatisfactory nature of the current law. As the Law Reform Committee observed, a conviction means that the offender's guilt has been proved beyond reasonable doubt under very strict rules of evidence procedure. It really is absurd to say that that is not to be evidence of his guilt. Clause 11 makes it such evidence, whether or not the convicted person is a party to the civil proceedings.
Clause 12 makes a similar provision for findings of adultery in matrimonial causes and adjudications of paternity in affiliation proceedings. As the House probably knows, we at present have the rather ridiculous situation in which Mr. Smith can divorce Mrs. Smith on the grounds of her adultery with Mr. Jones, but when Mrs. Jones tries to divorce Mr. Jones for the same act of adultery with Mrs. Smith, she has to prove it all over again and cannot rely on the decree pronounced in Smith v. Smith, notwithstanding that the court on that occasion found the adultery proved as against both Mrs. Smith and Mr. Jones and that the divorce court, unlike other courts trying civil cases, is under a duty to satisfy itself of the truth of the charges. The provision about affiliation orders is likely

1347
to become important when we implement the Russell Report on illegitimate succession. The justification for special treatment for these orders is that they are not made unless the mother's testimony is corroborated in a material particular.
Clause 13 will, perhaps, prove to be the provision of greatest interest to the public. Its effect is that in defamation proceedings a previous conviction is to be treated as conclusive evidence of guilt. This is in accordance with the Law Reform Committee's recommendations; it is not a question only of probative value but also of legal policy. The Committee thought (and I agree) that convicted persons ought not to be able to use libel actions as a means of reopening criminal proceedings: the right way to do that is to appeal. I think the whole House will have in mind recent cases where this has been done. It is most unsatisfactory, because the evidence is necessarily stale by the time of the civil trial and, as the law stands, the defendant still has to prove all over again the plaintiff's guilt without being able to rely on his conviction. Clause 13 completely reverses the position: not only can he put the conviction in; once proved, it is conclusive.
The House will observe that Clause 13, unlike the Law Reform Committee's Report, said nothing about acquittals. An acquittal has, as everyone realises, no probative value at all since it is perfectly consistent with the criminal court's having been of the opinion that the accused was probably guilty. The Committee thought, nevertheless, that as a matter of policy nobody should be entitled with impunity to say that an acquitted person was really guilty. My Lords, one sees the force of that. There is something to be said for finality. On the other hand, it could be greatly in the public interest that a rogue lucky enough to have got off should be publicly exposed. There are arguments either way, but the Bill comes down firmly in favour of not giving any effect to an acquittal.
Clauses 14 to 17 implement the third of the Law Reform Committee's Reports on Evidence. This deals with privilege; that is to say, the right of a witness, in some circumstances, to refuse to give evidence. My Lords, I can take these clauses quite shortly. Perhaps the most significant feature is what they do not
1348
do and what the Committee did not recommend. The House will see that there is nothing in the Bill about privilege for priests, doctors, marriage guidance counsellors or others who are consulted in confidence. There are, undoubtedly, conflicting views about this, but the Committee were opposed to any extension of the current law, and the Bill accepts this view.
Clause 14 extends to incrimination of a person's husband or wife the current privilege against self-incrimination. One may say that there should be no such privilege at all, and that is a perfectly tenable point of view. But while we have the privilege it should surely cover spouses. As the Committee said, there is something very distasteful about compelling a man to incriminate his wife. Clause 15 is largely technical. In certain proceedings, under the Patents Act 1949, a patent agent can play the part normally played by a solicitor in ordinary civil litigation but there is some doubt whether in doing so he is covered by the solicitor's ordinary professional legal privilege. Clause 15 resolves that doubt in his favour.
Clause 16 abolishes a number of obsolete privileges which are by now anachronisms. The abolition of all these privileges was recommended by the Law Reform Committee. I think that the only one of any general interest is the right of a witness in some cases to refuse to answer questions tending to show that he has committed adultery. My Lords, this privilege stems from the days when adultery could be severely punished; and that is not the case to-day. And, anyhow, abolition of the privilege has repeatedly been urged by a number of authoritative bodies.
Clause 17 and the Schedule make a number of miscellaneous Amendments to existing enactments, consequential on the extension of the privilege against self-incrimination to the incrimination of the spouse. Clause 18 provides an interpretation, and so on, of the Bill and deals with its application outside the ordinary courts of law. The Bill applies only in England and Wales, and Clause 19 empowers the Parliament of Northern Ireland to enact corresponding legislation. Under Clause 20 the provisions dealing with previous convictions in defamation actions and with

1349
privilege come into force at once; the remaining provisions on one or more appointed days.
My Lords, I hope that I have not detained the House too long on these rather technical matters. Perhaps the Bill has not been a sufficiently dramatic subject for the experimental television test now in progress, though it is not altogether irrelevant to that. If your Lordships were to examine in detail—not that I am inviting you to do so—Clause 6(1) and Clause 10(1) it would be apparent that if (which I hope will not be the case) anyone ever wanted to prove a statement made by me this evening, he could do so by means of a still photograph of me speaking and a transcript of my speech derived from the film and sound track. My Lords I beg to move.
Moved, That the Bill be now read 2a.—(The Lord Chancellor.)
7.13 p.m.
VISCOUNT COLVILLE OF CULROSS: My Lords, I agree with the noble and learned Lord the Lord Chancellor that this is a Bill full of detail. Indeed, I find it very difficult to make a Second Reading speech on it at all; and that being the case, I shall make a short one. Nevertheless, perhaps there may be some merit in pointing out to your Lordships' House the very few respects in which this Bill does not agree with the three Reports of the Committee, the Chairman of which was the noble and learned Lord, Lord Pearson, whom with the noble and learned Lord, Lord Denning, I expect your Lordships are longing to hear.
As a matter of fact, my Lords, I am not sure that the noble and learned Lord the Lord Chancellor was entirely right when he mentioned Clause 3, because it seems to me that in paragraph 35 onwards of the Report on Hearsay Evidence in Civil Proceedings there is a recommendation which comes to much the same as what is in Clause 3; and I do not therefore think that there is much difference between what the majority of the Committee (I think a narrow majority) thought and what is in the Bill. The other major change—it is probably not a major change, but a departure from what the Committee recommended in Part I of the Bill—is that these rules, as I understand it, under the Bill are to apply in magistrates' courts. The Committee who considered this weighed up
1350
the points for and against making this the case, but it seems to me, looking at paragraph 50 of their Report (and indeed they recommended that this procedural matter should not apply in the magistrates' courts), that the most important reason against it was that it is so difficult to see how the rules are going to be made and how they are to be interpreted by the magistrates.
For instance, how can the procedure set out in Clause 8 for the service of counter-notices, and the other safeguards which are so very necessary for the new form of hearsay evidence to be acceptable in the courts, be adapted to the magistrates' courts procedure? I should be grateful if the noble and learned Lord could give us a few indications of how he thinks this will work in practice, because I find that in their Report the Committee set out some extraordinarily valid reasons why this should not be the case, and I wonder why the Government have gone against this recommendation.
My Lords, my chief concern about Part I of the Bill relates to this matter of the computers. I agree fundamentally with the noble and learned Lord the Lord Chancellor that we must keep our law on evidence sufficiently up to date to be able to take account of the evidence which comes from computers; but I was very glad to hear him say that he was not altogether satisfied that the Bill at present is quite perfect in this respect. If you accept the principle that the product—or, as I believe it is called in a trans-Atlantic phrase, the "print-out"—of the computer may be put before the court in one form or another, that is all very well, so long as there are reasonable but adequate safeguards to discover, or to enable the adverse party to discover, how this was made.
It will be seen by your Lordships from Clause 5(1)(a) that one of the conditions for the admission of this sort of computer evidence is that at the time when the document was produced the computer was operating properly. That is all very well, my Lords. But what about the period of time between the moment when the information was fed into the computer and when the final document being put before the court was taken out of it again? I have been doing my best to study a considerable amount of American material on the subject of computers

1351
and the law, and I believe that it is not impossible to direct computers, during the time that they have in their digestion the information which is subsequently extracted from them; to direct them to change it. It may be that if one were clever enough, electronically and otherwise, one could "fiddle" the result and what the computer says. One could no doubt re-run the whole programme with some difference if one wished to be sufficiently fraudulent. I am not sure that the Bill provides a sufficiently broad framework for the rules to deal with some of these possible activities—and I do not think this doubt is altogether fanciful.
My Lords, there is another thing which arises out of this. Clause 8(2)(a) says that the rules may provide all the detailed information which is necessary to enable the adverse party to challenge the hearsay statement. But it seems to me, unless the noble and learned Lord can tell me to the contrary, that it is in the first instance for the party producing the computerised statement to say who he is prepared to call to support that statement. He may say that the proper person to call in support to give oral evidence is the computer operator who took the statement out of the computer. But the adverse party will not thereby be able, if he wishes, to challenge the whole of the computer's evidence. It may well be that the person who actually extracted the information from the computer was not in charge of it the whole time the information lay inside the computer. It may be that a number of other people, who were authorised to do so, put in or extracted information or otherwise tinkered with the computer during that period.
I should have thought that at any rate it would be considered by this House whether there should not be a special provision in the case of computers, whereby the person who wished to call these computer documents in evidence could not only give an exposition to the adverse party but should also give notice, if required by the adverse party, that he was to call other people in his employ if those other people would be able to prove or disprove what the computer said. For this result, of course, a subpœna is not good enough, because if the adverse party calls witnesses in his opponent's employ
1352
under a subpœna, they are his own witnesses and cannot be cross-examined, and there may be difficulty arising out of that.
I think there are other matters which would arise under the Rules, and I hope that the Bill will be wide enough to deal with them. For instance, I should have thought that anybody who wished to produce computerised material as evidence in courts should first of all have to turn it into written English. It would not be good enough for him simply to turn up with a long piece of tape or electronic wire and hand that to his adversary, saying, "Here is my evidence; you interpret it". I think it would be necessary for him to ensure that a proper transcription in English was available.
The question of discovery is also liable to be difficult in the case of computerised material, because it may be not only the product of the computer that should be discovered but also the information that was fed into it in the first place, and upon the basis of which it produced its statement. I hope the noble and learned Lord will be prepared to consider some of these points and ensure that the Rules are really wide enough to deal with them.
Referring to Clause 10—and this is extraordinarily relevant to what the noble and learned Lord said at the end of his speech about television—I am told that there are computers which work by means of some sort of visual flashes of light. Subsection (1)(d) would appear to apply to films or television, and I do not know whether the noble and learned Lord had in mind that there is also a method by which computers can produce information. I am concerned whether the words "visual images" are wide enough to deal with the type of operation which in some cases is used in computers. There are a number of detailed points in this, but I should have thought they were all worth covering in the Bill or making provision for in the Rules, so that we shall get off to the right start if we are to have computers called in evidence, as I hope we shall be able to do.
I have only two points to raise on Part II of the Bill. Here the Bill implements recommendations from the two Reports of the Committee. The noble and learned Lord mentioned the question of whether acquittal should be good

1353
enough evidence in an action for defamation. Though perhaps this is a rash thing to say when the noble and learned Lord, Lord Pearson, is here, I tend to agree with the Bill that in these circumstances the defendant in a defamation action should, if the plaintiff has been acquitted, be required to prove that after all the plaintiff was guilty in the way he was alleged to have been. One compares it with what is said at the end of paragraph 29 of the Report dealing with the rule in Hollington v. Hewthorn, but I agree with the noble and learned Lord on that.
One difficulty relates to courts-martial. Here again it is a matter of judgment but the Law Reform Committee suggests that convictions by courts-martial should not be subject to the same rules as in the case of the ordinary rule in Hollington v. Hewthorn where you are trying to prove it all over again in a case of defamation. Courts-martial should not fall into the same category as convictions in courts in Great Britain. The Bill says that they shall fall into the same category, and the result of that will be that a defendant will have to undertake the onus to prove that a court-martial was wrong. The Law Reform Committee points out that this chiefly applies to the ordinary Hollington v. Hewthorn situation. This may mean a court-martial which sat abroad. It may be very difficult for the witnesses to bring back the evidence or to bring back the witnesses who will be necessary to deal with the case. In this instance, I agree with the Law Reform Committee and not with the Bill. Again, this is no doubt a matter with which we can deal in Committee stage.
As a whole I welcome the Bill very much. Its recommendations are set out in the reasoned arguments so carefully explained in the three Reports which are its foundation. I understand that the Evidence Act 1938—this relates to Part I of the Bill—was an experiment. It has not been as successful as one might have hoped, and this is now a new and rather more advanced experiment, with new rules and a new substance as well. I think that it is well worth while. I hope that your Lordships will approve the Bill and give it a Second Reading.
7.28 p.m.
LORD DENNING: My Lords, I will not detain your Lordships long at this
1354
hour, but I should like to pay tribute to the work of the Law Reform Committee, of which the noble and learned Lord, Lord Pearson, has been the Chairman, for these three Reports which they have made and which are now to be implemented.
This Bill produces an important transformation of our law—of our rule against hearsay. Perhaps the classic exposition of this rule is to be found not in any law book but in a work of fiction, in the celebrated case of Bardle v. Pickwick when, Sam Weller replies to the judge:
"'Oh, quite enough to get, Sir, as the soldier said ven they ordered him 350 lashes.' 'You must not tell us what the soldier, or any other man said, Sir,' interposed the judge; 'tis not evidence'."
That is the classic exposition which all law students know. What the soldier said is not evidence.
But it is not only hearsay, it is also the written word which has not been evidence. All reports which are made after an accident, statements taken by the police, reports made to employers and others—none of them has been admissible in evidence under this rule against hearsay. This has been a great brake on the effective search for truth.
When one looks at this new Bill, one can regret, perhaps, that it is rather complicated. For myself, I am glad that it is to be extended, rather more than the Committee suggested, to the magistrates' courts. They should not find any great difficulty about it. Perhaps I can express the change in two simple sentences which I think underline the position. The rule against hearsay is hereby abolished. Hearsay at first hand is hereafter to be admitted in civil proceedings. I think that if magistrates or their clerks apply those simple rules they will be able to operate the Act.
But, apart from welcoming this abolition of the hearsay rule, I would say that it was founded in the old days on the idea that no-one could be trusted to say the truth unless he was on oath, and you really could not accept anything unless it had been first tested by cross-examination. Well, we know now that people are just as apt to tell lies on oath as when not on oath. In fact, it is much more reliable, as I have always thought, to go on a statement made at the time of the accident, the injury, or whatever it may

1355
be. If you have a written document, let that in. It is far more valuable than what is thought to be remembered maybe five or six years afterwards. So much for the rule against hearsay.
I should now like to deal with the next part of the Bill, what is called the rule against Hollington v. Hewthorn. It was 25 years ago that I argued that case. It was my most ineffective advocacy that allowed the Court of Appeal to make that wicked decision. I feel irate about it, even now, but let me tell your Lordships what happened. It was just an ordinary motor car case. Young Hollington was driving his car along a road, and round a bend, on the wrong side of the road, came Hewthorn's car. The policeman came up and took a statement from young Hollington as to what had happened. Afterwards Hewthorn was prosecuted for driving without due care. Hollington gave his evidence, and Hewthorn was convicted on Hollington's evidence. Hollington then brought an action in the civil courts for damage to the car and for injuries to himself. But before the case came on for trial young Hollington died. We went on with the case against Hewthorn with Hollington's father as his administrator. I argued that the statement to the police ought to be admitted in evidence. The court would not have it. I argued that the conviction showing that Hewthorn had been convicted of careless driving ought to be admitted in evidence. The court would not have it. They said that it had nothing to do with our case. Res inter alia acta is the legal maxim. We were thrown out of court because we had no evidence to prove our case.
So what happened after that. Your Lordships remember Mr. Hinds, who was duly convicted in a criminal court. Years afterwards, Inspector Sparks wrote an article for a newspaper and Mr. Hinds brought an action against the newspaper for libel. Inspector Sparks would have liked to say: "You have already been convicted." But, oh no. It was said: "The rule in Hollington v. Hewthorn says that that conviction is res inter alia acta and has nothing to do with the case. You go and prove it all over again, Inspector Sparks." According to that jury, Inspector Sparks did not prove his case, and Mr. Hinds got his damages.
1356
In a case that we had more recently than that a bank robber went into a bank with two or three others and robbed the bank of £50,000. He was charged with the robbery and duly convicted at the Old Bailey. The bank then discovered that in his bank account in some other branch he had £16,000. So the bank sued him, and said: "You have robbed us of £50,000. We want damages against you". He sought to say: "That is no good. That conviction is not evidence against me that I robbed the bank. I want another jury to hear the case, and for it to be proved all over again". Well, we did not let him have another jury. We got over it like that. At all events, how welcome it is that the bad old rule of Hollington v. Hewthorn is being done away with by this Bill!
Now for the third point, on privilege. I welcome more what the Committee have not recommended. Time after time the question arises: When is a witness entitled to say, "I refuse to answer"? It is almost an academic question if a priest or a clergyman goes into the witness box and he is asked to say what happened in the confessional. The point never arises; it is not a practical question. More practical is the question of the doctor and the patient. Is the doctor bound to answer? Is the banker bound to answer? What is of more interest to me: what about the marriage guidance counsellor? Frankness is essential in conciliation procedure, and we have found a way in the courts to deal with this by saying it is the privilege of both parties. If they both agree that it is not to be disclosed, all well and good, and that meets the case.
I hardly dare mention the claim of the journalists in the presence of the noble Earl, Lord Arran, but we had a case where journalists claimed that they had the privilege and were not bound to disclose information. All I say is that, as it is the ultimate, last resort, the power of the court must be there if it is essential that justice should be done. But hardly ever does it arise, because the court, like everyone else, respects the confidences, whether of the priest, the banker, the doctor or the journalist. It is only a last resort power, which I am glad to see the Committee have not recommended should be taken away.

1357
As to the two or three small points on which this Bill goes beyond the Committee's Report, I would say how welcome it is that the magistrates' courts should have the same rulings in civil cases as our ordinary courts are to have. For myself, while in defamation actions I see that convictions should be conclusive, in others I do not see that the reasoning ties to them to the same extent. On the whole, I would support the small amendments made in this Bill to what the Committee recommended and I wholeheartedly support this excellent reform.
THE EARL OF ARRAN: My Lords, before the noble and learned Lord sits down, it may be that my memory serves me falsely, but am I not right in saying that a journalist who refused to produce the source of his information in a spy trial about ten years ago, was committed for trial and convicted?
LORD DENNING: That was the case that I had in mind. It was one of those very exceptional cases to which I referred.
7.40 p.m.
LORD PEARSON: My Lords, I should like to say a few words on this Bill, and in particular to express a welcome for the Bill on behalf of the Law Reform Committee, on whose three Reports it is founded. As has been mentioned, the Bill makes some modifications in the recommendations of the Committee, and with regard to most of them I am fully content, and indeed positively in favour of them. But I should like at this stage merely to make some reservations as to two of the points involved, to which attention has already been directed by my noble and learned friend Lord Colville of Culross.
One is whether it is right to apply this rather complicated system, with its, as I think, entirely necessary safeguards, to procedure in magistrates' courts. It may indeed be right, but I should like to consider it further, and I do not feel sure about it. The other question is whether it is right to make admissible in civil proceedings conviction by court-martial, in particular courts-martial held outside this country; and whether it is fair to impose on a party in this country in civil proceedings the rather heavy burden of proving that some conviction abroad—it might be in a very distant country—was correct. That also I should like to consider further.
1358
As to Part I of the Bill, there is very little left to say, and I want only to say in a sense something on the other side. The Bill contains some rather extensive safeguards to impose limits on the admission of hearsay evidence; and I think those safeguards are very proper and necessary safeguards. I say that partly because there was an article in a legal periodical which had some adverse criticism of the Report on the ground that it was over-cautious and recommended too many safeguards. I think, however, it is right from that point of view to mention that the rule against hearsay evidence is a very ancient rule which was invented and developed and confirmed by the courts over a very long period of years—250 years or so—and in its application to what is in fact hearsay evidence in the literal sense there is a great deal of good sense in the rule.
May I give a very simple example? Suppose a witness were allowed to say, "I heard a bystander state that he saw the defendant driving his car round the corner on the wrong side at 80 miles an hour". That evidence is evidence of inferior quality for four reasons. First of all, the statement made by the bystander may have been misreported by the witness. Secondly, the original bystander who made that statement was not speaking on oath, and therefore was not necessarily taking any particular care to speak accurately. He may have been more interested in making an impression on his audience. Thirdly, the person who made the statement, the bystander, is not present in court to be observed or for his reliability to be assessed. Fourthly, he is not there to be subjected to cross-examination. For all those reasons, hearsay evidence, in the literal sense, constitutes evidence of bad quality, and therefore I think it ought to be admitted only subject to suitable safeguards being observed. That is what this Bill does, and I would agree, because it will be useful in special cases. But, on the other side of the matter, I think the hearsay rule was ill-adapted to written statements and written records, and it has done much harm in excluding good quality evidence in this sphere, as in the recent and well known Myers case, which was decided in your Lordships' House.
Then sometimes a fact has to be proved but the evidence of it will not be disputed.

1359
In such cases a written statement, not in any way challenged by the other party, is all that is required and there is no need to call the maker of the statement as a witness. Secondly, there is the familiar and, I think, important case where a witness is giving evidence some two or three, or even four, years after the event. He may have very little actual recollection of what happened, and his impromptu invention is usually of no value; or it may be positively misleading. He may, however, have made a statement within a week or so of the event. If the statement was fairly taken it may be extremely valuable. On the other hand, the statement might have been unfairly taken by a series of leading questions, to which the person questioned was willing to say, "Yes"; and perhaps he was equally willing to read over and sign what had been written down. If that is the way the statement was taken, it is virtually worthless. And here again there is need for these safeguards.
As to official and business records, and evidence of computers and so on, these are, to my mind, plainly outside the reasonable scope of the hearsay rule, and they ought to be admitted if suitable conditions are satisfied. Clause 5 of the Bill makes heroic efforts to deal with the computer problem, and we shall have to see how it works, if and when it has become law, and also we shall see what further Amendments can be proposed to it. We on the Law Reform Committee, perhaps acting somewhat wisely, did not deal with this thorny and difficult subject. So that subject is left wide open to others.
As to Clauses 11 to 13 of the Bill, dealing with the rules in Hollington v. Hewthorn, my noble and learned friends have explained what is involved. Convictions are to be admissible as evidence in civil proceedings; acquittals are not. The reason for the difference is that an acquittal may mean only that the jury were not satisfied beyond reasonable doubt of the accused's guilt. Under the Bill, all acquittals will continue to be inadmissible in any civil proceedings. That involves a modification of the recommendations in the Report, but it is a simple and logical and straightforward rule, and for myself I am entirely content with it.
As to the third subject of the Bill, privilege, as my noble and learned friend the Lord Chancellor has pointed out
1360
perhaps the most important recommendations contained in the Report on which this Part of the Bill is based were negative recommendations. They advised against the creation of certain new privileges which were suggested. There are some interesting privileges of this kind, but the question considered was whether more of them should be created, and for the most part negative answers were given in the Report. Any privilege of this kind tends to hamper the administration of justice by withholding from the court some of the relevant evidence which might have assisted the court in performing its task of ascertaining the facts of the case. Therefore, the creation of new privileges is prima facie undesirable, and that is the broad general basis of the Committee's negative recommendations. These negative recommendations do not appear in the Bill except negatively, as omissions but anyone can ascertain from the Report what suggestions have not been accepted.
7.48 p.m.
LORD WILBERFORCE: My Lords, I want to make only two very short observations, and the first is on Clause 5, which deals with computers. As the noble Viscount who spoke from the Opposition Bench said, there are a number of details in this clause which it is not appropriate now to discuss, but I think that the House ought to appreciate that this is not merely modernising the law in the direction where it ought to be modernised; it is dealing with a very important subject where the only evidence available will be computerised evidence, and it is evidence which is going to affect a number of minute, everyday transactions in which the ordinary man is greatly interested. It will very soon only be possible to prove what a man is entitled to in the way of wages or benefits, or the state of his bank account, by reference to a computer. It is not an alternative; it will be the only way to do it. That is why this clause is a vital clause, and why it is vital to get it right.
There are two points to be made about this clause. The first is the question of the technicalities, and I think the noble and learned Lord the Lord Chancellor has very fairly said that he wil consider at a later stage representations as to some of the more technical

1361
matters; for example, the definition in subsection (5) of what a computer is. One must look at that very carefully and be sure one has it right.
The second point arises out of the rule-making provision in Clause 8, which envisages that the more particular matters as to the admission of computer evidence shall be dealt with in the Rules. I suggest that there are two points to bear in mind here. The first is that the rule-making power itself should be wide and flexible, because I am sure we shall have to feel our way forward in this. I am convinced that the right way to do it technically is to give ourselves a good deal of latitude so that we may change the Rules as circumstances make it necessay. When one comes to make the Rules, I expect the noble and learned Lord the Lord Chancellor will be able to say that he expects the rule-making authorities to consult, so far as possible, with businessmen and technicians who know how these things work, so that something workable and related to the reality is made available for the courts.
Another point which I cannot refrain from making echoes what has been said by the noble and learned Lord, Lord Denning; that is, to express regret at the great complication which the Bill has introduced into this subject in some of the language used. The purpose of the Bill is to deal with the hearsay rule, which every layman knows and understands, and yet that rule is not referred to as such. We had an admirably clear statement from the noble and learned Lord on the Woolsack in perfectly plain English as to what was intended; we had a two sentence draft given to us by the noble and learned Lord, Lord Denning, and one feels that it ought to have been possible to deal with this matter rather more simply than, for example, it is dealt with in Clause 1(2), which contains a provision worthy of any Finance Bill in its complication. I will not take time by reading it now.
It seems ungrateful to look this gift horse in the mouth, but I feel that for many years English lawyers have been far too sensitive and technical about admitting evidence in civil proceedings, and far too fearful of letting in what often is much better evidence than what a witness says in the witness box. Often by the time counsel has argued what a
1362
particular subsection means, and counsel on the other side has argued to the contrary, and the judge has given his ruling, it would have been much quicker and cheaper to have called the witness or produced the document. However, we must grapple with it in Committee, and if we can simplify the language it will be a good thing. I could not let this language pass without a mild protest at the thorny character of some of the devices used to bring about otherwise excellent reforms.
7.53 p.m.
THE LORD CHANCELLOR: My Lords, I am extremely grateful to those of your Lordships who have taken an interest in this Bill this evening, and I can best repay that by being extremely short. We shall of course take into account everything that your Lordships have said. I fully appreciate the importance of providing for computer evidence. We have had to do this on our own because it was not expressly covered by the Law Reform Committee's Reports. We have taken technical advice about it, but I recognise its importance. I should welcome assistance from any quarter. The only thing I would suggest to the noble and learned Viscount, Lord Colville of Culross, is that if we make the conditions for the admission of computer evidence too difficult, then Clause 5 will be useless, and it is of course essential that it should be able to be used.
My Lords, it is really, in a sense, the evening of the noble and learned Lord, Lord Denning, the Master of the Rolls. Seeing Hollington v. Hewthorn, at long last the Knight has triumphed over the Dragon. In regard to magistrates' courts, I quite agree that there is a good deal to be said both ways, though it would seem rather strange if, in civil proceedings in a magistrates' court, that was the only court which had not the advantage of having the simplified law of evidence but had a stricter law of evidence than any other kind of court. On the subject of courts-martial there are doubtless things to be said both ways. In a sense, it might be rather a slight on courts-martial not to treat them in the same way, and of course many proceedings before courts-martial are for ordinary criminal offences; and in so

1363
many cases, if not most, either those concerned are all back in this country, or they can easily be brought back by the defence services.
We shall give the most careful consideration to the other suggestions made before taking the Bill to its next stage. I cannot resist saying that my first reaction, on seeing the Bill, was whether it was really necessary to have anything quite so long and complicated on what, after reading the Reports made by the Law Reform Committee, I had thought were somewhat simpler points. Indeed, I had to read Clause 1(2) quite a number of times before I understood what on earth it meant. However we must be thankful for small mercies. Perhaps one
1364
day we shall get to the point, which after all is not uncommon in other systems of law, in which everything is evidence and it is entirely for the court to decide what weight it will attach to each piece of evidence; but at least we have got this far.
On Question, Bill read 2a, and committed to a Committee of the Whole House.

ADMINISTRATION OF JUSTICE BILL
Read 3a, and passed.
House adjourned at four minutes before eight o'clock.