§ 11.5 a.m.
§ Lord BOOTHBYMy 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 the law of Scotland relating to homosexual offences committed in private, now restated in the Sexual Offences (Scotland) Bill, conflicts with the Sexual Offences Act 1967 which applies to England and Wales and which was passed by Parliament following the recommendations of the Wolfenden Committee; and whether they will now introduce legislation to rectify this anomaly.
§ The MINISTER of STATE, SCOTTISH OFFICE (Lord Kirkhill)My Lords, I am aware that, under Section 11 of the Criminal Law Amendment Act 1885 which is re-enacted as Clause 7 of the Sexual Offences (Scotland) Bill, all acts of gross indecency between males, whether in public or private, are illegal, whereas in England and Wales homosexual acts between consenting adults in private have not been offences since the coming into operation of the Sexual Offences Act 1967. However, there have been no prosecutions in Scotland in recent years for homosexual acts committed in private between consenting adults. My right honourable and learned friend the Lord Advocate recently gave an assurance to the Scottish Minorities Group that the passing of the Sexual Offences (Scotland) Bill, which is a pure consolidation measure, would not alter this policy in any way. The Government have no plans to amend the law on homosexuality in Scotland.
§ Lord BOOTHBYMy Lords, I wish only to ask the noble Lord, Lord Kirkhill, whether he is not aware that, if this 1652 clause remains as it stands indefinitely on the Statute Book, and the Lord Advocate adheres to his stated decision not to prosecute, sooner or later it is bound to bring the law into disrepute?
§ Lord KIRKHILLMy Lords, I understand the reasoning behind the point made to me by the noble Lord, Lord Boothby. However, I have to emphasise to him that the Sexual Offences (Scotland) Bill is purely a Consolidation Bill and, as such, cannot be used as a vehicle for repealing or replacement of any earlier provision, nor can any new provision be included in it.
§ Lord BOOTHBYMy Lords, is there no chance of the Government introducing a brief amending Bill to bring the law of Scotland into alignment with that of England and Wales?
§ Lord KIRKHILLMy Lords, the Government have no plans to do that at this time.
§ Lord WILSON of LANGSIDEMy Lords, does the noble Lord, Lord Kirkhill, not appreciate that the present Lord Advocate cannot bind his successor? Is he not aware that if a future Lord Advocate took a different view from the present one, he might wish to prosecute? Moreover, can the noble Lord tell the House what steps the Government propose to take, if any, to prevent a procurator fiscal from prosecuting in any part of the country at his own hand an offence under this consolidating measure?
§ Lord KIRKHILLMy Lords, I can only repeat that there have been no prosecutions in recent years of the kind spoken of because of Crown Office policy. In any case, such prosecutions were previously very rare, largely because of the requirement in Scotland for corroboration by a second witness.
§ Lord WILSON of LANGSIDEMy Lords, does the noble Lord not appreciate that for the Government to ask Parliament to enact a measure one day, and then to say they will follow a policy of not enforcing the law, as the noble Lord, Lord Boothby, said, will bring the law into disrepute at a time when it is very important, particularly in Scotland, that this should not happen?
§ Lord KIRKHILLMy Lords, the view of the Government on a matter of this kind is that more usually new legislation is initiated by a Private Member of the other place, or perhaps by a noble Peer of your Lordships' House. The view of the Government on this point is one of neutrality.
§ Lord BROCKWAYMy Lords, in view of the initiative which this House has taken on this subject, is it not possible that in the new Session a Bill could be introduced for this purpose, either by the Government or by a Private Member?
§ Lord KIRKHILLMy Lords, I have indicated what the Government's view on that would be. It would not be for me to observe on what any noble Lord might attempt to do.
§ Lord BYERSMy Lords, would the noble Lord, Lord Kirkhill, not agree that this is a ridiculous situation? If a Private Member's Bill were to be introduced into either House, would he undertake to make representations that the Government should at least facilitate the passage of that Bill in the other House? In this House we can handle our own affairs.
§ Lord KIRKHILLMy Lords, certainly, traditionally, the Government view has been that a free vote is sustained in a matter of this kind. As to whether the Government can make time available, I cannot give an assurance of that kind to your Lordships this morning.