§ 6.6 p.m.
§ Lord BOOTHBYMy Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, that the House do now resolve itself into Committee.—(Lord Boothby.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The EARL of LISTOWEL in the Chair.]
§ Clause 1 [Amendment of law relating to homosexual acts in private]:
§
Lord BOOTHBY moved Amendment No. 1:
Page 1, line 5, leave out from ("beginning") to ("subject") in line 6.
§ The noble Lord said: In moving the first Amendment, I should like to say to your Lordships that it is my intention and hope that this Bill should be, unlike the last one, non-controversial. Indeed, the noble Earl, Lord Halsbury, was one of the Tellers when I moved the Second Reading of this Bill. It is a complicated matter, but I want to make clear to your Lordships that my sole objective is to bring the law of Scotland and the law of England into alignment on this subject. I think that is very important. I fully respect and appreciate the attitude of Her Majesty's Government upon this matter. It is one of neutrality. I also respect the attitude of the Opposition Front Bench as expressed by the noble Lord, Lord Campbell of Croy, that they, too, wish to be neutral in this matter. This is a Private Member's Bill designed for one purpose only, to bring the law of Scotland and the law of England into alignment.
§ While I respect the attitude and position of Her Majesty's Government, I am deeply grateful to the noble Lord, Lord Kirkhill, to the Crown Office, and to the Parliamentary draftsmen for their assistance in drafting the Amendments to the Bill. They are all essentially drafting amendments. They do not attempt, and I do not attempt, to change the law in any way. They attempt to bring the law of Scotland and the law of England into 76 alignment. It is complicated because the law of Scotland and the law of England are different, and I could not possibly, as one who is not a professional lawyer, have hoped to draft the Amendments which stand in my name, with one exception, upon which I shall say a few words; that is, to fulfil a pledge which I gave on Second Reading to retain the age of 21 as the age of consent.
§ I therefore propose to move these Amendments formally. I have been through them carefully; I have studied them and I am satisfied that they do nothing except improve the Bill, and further my own wish to bring the laws of Scotland and England into line. I shall therefore in most cases move them formally. I shall say a few words about the age of consent in regard to which I am going to fulfil a pledge I made to the House on Second Reading. If noble Lords want any clarification or explanation, I am going to ask the noble Lord, Lord Kirkhill, to give it, because he knows a great deal more about the technical and legal aspects of this question than I. I am completely satisfied, having worked rather hard on this Bill—I have done more work on it than I have done for a long time past—that every one of my Amendments does nothing except enhance my desire to bring the laws of Scotland and England into alignment, which is important, and also to improve the Bill. I approve of all those Amendments. Certain Amendments have been tabled in the name of the noble Lord, Lord Beaumont of Whitley. I do not say that I disagree with them, but I shall resist them because they run counter to my objective, which is not to change the law but to bring the law of the two countries into alignment. I beg to move Amendment No. 1.
Lord CAMPBELL of CROYWe are all grateful to the noble Lord, Lord Boothby, for deciding to deal with the Amendments in the way in which he has suggested. I think that he has answered most of the questions I wanted to put to him. I was about to ask him whether I am right in assuming that the Bill which he has introduced was needed because the 1967 Act, which applies to England and Wales, was translated somewhat amateurishly in its application to Scotland and, further, whether—the Bill having had a Second Reading from your Lordships' 77 House—it has become necessary to amend it substantially in order to put it into proper shape as Scottish legislation. I entirely understand that exercise; the first exercise was to indicate in principle what the noble Lord intended. Once that principle was accepted, an enormous number of changes appeared to be necessary. For example, I must point out that no less than five clauses are to be removed from the Bill. It is substantial redrafting. Like the noble Lord, Lord Boothby, I do not want to speak to all the Amendments as they come forward.
The Amendments fall into three categories. The first category, which consists of most of the Amendments on the Marshalled List, contains those which will put the Bill into proper shape as a piece of Scottish legislation. From what the noble Lord has said, I understand that he has had the services of the official Parliamentary draftsman. Without seeking to put any reflection on his own powers and his own ability, in this respect I am sure that that was wise, because only the draftsman can really give final advice on matters of this kind. On that basis we on this side of the House will accept from this Bench that the Amendments have been examined very carefully by the official draftsman and that they are the right ones for fulfilling the purpose which the noble Lord has in mind.
The second category of Amendments contain those to which the noble Lord referred on Second Reading—he said that the first draft of the Bill, which has the age of 18 in it, will be changed. We now have Amendment No. 3 and similar Amendments which raise the age from 18 to 21. That means, if this Bill is passed, that the Scottish law will be exactly the same as the law now is in England and Wales. I indicated on Second Reading that I hoped that that would be done.
The third category is the category of Amendments tabled by the noble Lord, Lord Beaumont of Whitley, which we shall come to towards the end. At first sight they appear to seek to add to the Bill or change it. That is not the purpose of the noble Lord, Lord Boothby, who is promoting the Bill. He has made it quite clear that he does not want to do anything more than ask your Lordships' House to pass a Bill which is as precisely as possible the equivalent of the 1967 Act for England and Wales.
78 Amendment No. 1 falls into category one. I do not propose to query Amendments which are in that category and which are simply drafting Amendments to put the Bill into proper shape. I hope that Amendment No. 3 can be separated because that is concerned with the age of consent.
§ The MINISTER of STATE, SCOTTISH OFFICE (Lord Kirkhill)I rise at this point to indicate the Government's attitude to the Amendments to be moved by the noble Lord, Lord Boothby. In so far as these proposed Amendments are of a drafting nature only, moved with the intention of improving the Bill where it was previously technically unsatisfactory, I welcome them. I indicated at an earlier stage in your Lordships' House that there were a number of respects in which this Bill could be improved. I am grateful to the noble Lord, Lord Boothby, for tabling Amendments to his Bill to meet these points and I would lend these Amendments my support as it appears to me that they have the effect simply of bringing out more clearly what the Bill seeks to achieve in the context of Scots law, and thus making the Bill more workable.
In favouring these drafting Amendments, however, I must stress that I am in no way prejudicing the Government's benign neutrality on the issues raised by the Bill. Consideration of these issues will be for individual Members of your Lordships' House to determine.
§ On Question, Amendment agreed to.
§ 6.17 p.m.
§
Lord BOOTHBY moved Amendment No. 2:
Page 1, line 6, leave out ("the next following section") and insert ("this Act").
§ On Question, Amendment agreed to.
§
Lord BOOTHBY moved Amendment No. 3:
Page 1, line 9, leave out ("eighteen"} and insert ("twenty-one").
§ The noble Lord said: This Amendment carries out a pledge that I made to your Lordships on Second Reading, that I would not wish to alter the present law of England and that I would retain the age of 21 as the age of consent. I should 79 like to add that I accept the decision which your Lordships have just reached on this matter and I hope that your Lordships will therefore accept this Amendment. I beg to move.
Lord CAMPBELL of CROYThe noble Lord is carrying out the commitment which was made earlier, and I welcome it. He has also been farsighted, because he must have foreseen that the Bill of the noble Earl, Lord Arran, would fail, as it has earlier today, and therefore it would be right to ensure that the age, 21 years, was the same both North and South of the Border. Therefore, this means that the noble Lord, Lord Boothby, is carrying out a rationalisation of the situation in which in practice no prosecutions have been brought in Scotland over the past 10 years for what would not have been offences in England and Wales. By making this change, together with the drafting which has also been carried out, the noble Lord is bringing the law North of the Border as precisely as possible into line with the law as it exists South of the Border.
§ Lord BEAUMONT of WHITLEYI rise to commiserate with the noble Lord, Lord Boothby, in having to move this Amendment and thus ally himself with that vast range of paternalistic speeches, so many of which he must have disagreed with this afternoon. I entirely appreciate why he has had to move it. If I had been in his position I should have done exactly the same.
May I take this opportunity to say that the Amendments standing in my name later on in the Marshalled List are only for the purpose of raising the points which I think ought to be aired, and I shall not endeavour at any stage to alter the Bill as it will be after this Committee stage. I do not want to enter once again into the whole range of debate on which we have already spent three hours. However, there is one point which ought to go on record, and that is in answer to the various people who say that they cannot see the connection between an age of consent and an age of majority.
Since there has been a sort of heavy air of Christianity about the House this afternoon, may I quote C. S. Lewis in this context. It starts from the point: 80
My own view is that masturbation, perversion and fornication are all evils but that the law should be concerned with none of them".I am sure that Dr. Lewis himself would have qualified that to talk about the protection of the young. But when we have an age of majority we declare that people are free citizens of this country, equal before its laws. They are not equal before its laws if they are treated in this way once they are of the full age of citizenship. That is the nexus of the connection between those two points. That is why I object to this particular Amendment, but will of course do nothing about it.
§ Lord BOOTHBYI do not need the noble Lord's commiseration because I have never thought that the difference between the ages of 18 and 21 was of much consequence. For one thing, I do not think that in practice it will be found to he enforceable; for another, I know of a number of men of 21 and over who look 16, bit I know of far more of 18 and 19 who look 60! I do not think that it is really of any great consequence, and never have. I am quite happy to accept the age of 21, and I ask your Lordships to accept this Amendment.
§ On Question, Amendment agreed to.
§
Lord BOOTHBY moved Amendment No. 4:
Page 1, leave out subsection (2).
§ On Question, Amendment agreed to.
§ Lord BOOTHBY moved Amendment No. 5:
§
Page 1, line 16, leave out from beginning to ("cannot") in line 17 and insert—
("(3) A male person who is suffering from mental deficiency which is of such a nature or degree that he is incapable of living an independent life or of guarding himself against serious exploitation").
§ On Question, Amendment agreed to.
§
Lord BOOTHBY moved Amendments Nos. 6 and 7:
page 1, line 21, leave out ("man") and insert ("male person")
page 1, line 23, leave out ("man") and insert ("male person").
§ The noble Lord said: I beg to move Amendment No. 6 and Amendment No. 7 together because they are the same.
§ On Question, Amendments agreed to.
81
§
Lord BOOTHBY moved Amendment No. 8:
Page 1, line 23, leave out ("mental disorder") and insert ("such mental deficiency").
§ On Question, Amendment agreed to.
§
Lord BOOTHBY moved Amendments Nos. 9 and 10:
Page 2, line 3, leave out from ("committing") to end of line 4 and insert ("a homosexual act")
Page 2, line 5, leave out ("an") and insert ("a homosexual").
§ The noble Lord said: I beg to move Amendments Nos. 9 and 10 en bloc. They are in fact the same.
§ On Question, Amendments agreed to.
§
Lord BOOTHBY moved Amendment No. 11:
Page 2, line 6, leave out ("(other than a civil offence)").
§ On Question, Amendment agreed to.
§
Lord BOOTHBY moved Amendment No. 12:
Page 2, leave out subsection (6).
§ On Question, Amendment agreed to.
§ Lord BOOTHBY moved Amendment No. 13:
§
Page 2, leave out subsection (7) and insert—
("(7) In this Act, "a homosexual act" means sodomy or an act of gross indecency by one male person with another male person.").
§ On Question, Amendment agreed to.
§ Clause 1, as amended, agreed to.
§ 6.23 p.m.
§
Lord BOOTHBY moved Amendment No. 14:
Leave out Clause 2 and insert the following new clause:
§ "Homosexual offences
§ (2.—(1) Subject to the provisions of section 1(2) above, it shall be an offence to commit or to be party to the commission of, or to procure or attempt to procure the commission of a homosexual act—
- (a) in public;
- (b) without the consent of any part to the Act;
- (c) with a person under the age of twenty-one years; or
- (d) where the act is committed by a member of the crew of a United Kingdom merchant ship with another member of the crew on board the ship, wherever it may be.
§ (2) In this Act—
- "member of the crew" in relation to a ship, includes the master of the ship;
- "United Kingdom merchant ship" means a ship registered in the United Kingdom habitually used or used at the time of the alleged offence for the purposes of carrying passengers or goods for reward.").
§
The noble Lord said: In moving this Amendment I should like to point out to your Lordships that there is a printers' error in subsection (b). It should read:
Without the consent of any party to the act,
with a small "a" instead of a large "A", and not "part" but "party". Subject to that, I beg to move this Amendment.
§ On Question, Amendment agreed to.
§
Lord BOOTHBY moved Amendment No. 15:
Leave out Clause 3 and insert the following new clause:
§ "Revised punishments for homosexual offences
§ (3. From the commencement of this Act—
§ (1) A male person who commits or is party to the commission of an offence of sodomy tinder section 2(1) above shall be liable on conviction on indictment to imprisonment, or on summary conviction to imprisonment for a period not exceeding 6 months.
§ (2) Subject to subsection (3) below, a male person who commits or is party to the commission of an offence consisting of an act of gross indecency under section 2(1) above or of the procuring or an attempt to procure the commission by another person of a homosexual act, shall be liable on conviction on indictment to imprisonment for a term not exceeding two years or on summary conviction to imprisonment for a term not exceeding three months.
§ (3) A male person of or over the age of twenty-one who commits or is party to the commission of any of the offences mentioned in subsection (2) above in relation to another male person under that age shall be liable on conviction on indictment to imprisonment for a term not exceeding five years or on summary conviction to imprisonment for a term not exceeding six months.").
§ Lord KIRKHILLI commend this new clause to your Lordships as a clearer statement of the penalties that are to apply to each of the homosexual offences listed in the previous clause. Clause 3, as amended, would contain a comprehensive statement of the various penalties pertaining to the different homosexual offences.
§ On Question, Amendment agreed to.
83§ Clause 4 [Procuring others to commit homosexual acts]:
§ On Question, Whether Clause 4 shall stand part of the Bill?
§ Lord BOOTHBYThis clause has already been covered by Clauses 2 and 3, and I therefore beg to leave it out.
§ Clause 4 disagreed to.
§ Clause 5 [Living on earnings of male prostitution]:
§
Lord BOOTHBY moved Amendment No. 16:
Page 3, line 16, leave out ("man or woman") and insert ("person").
§ On Question, Amendment agreed to.
§
Lord BOOTHBY moved Amendment No. 17:
Page 3, line 17, leave out ("prostitution of another man") and insert ("another from male prostitution or who solicits or importunes any male person for the purpose of procuring the commission of a homosexual act within the meaning of section I of this Act").
§ Lord KIRKHILLThis Amendment is simply to put it beyond doubt that in Scotland as well as in England and Wales soliciting for the commission of a homosexual act is an offence in the same way that soliciting for the commission of a heterosexual act is an offence. I am advised that there is some doubt about the applicability of Section 12(1)(b) of the 1976 Act to the commission of homosexual acts, and accordingly I welcome this Amendment which makes it clear that soliciting for this purpose is an offence. I must emphasise that this Amendment seeks to bring the law of Scotland explicitly into line with the law of England and Wales by stating clearly what could presently be a matter of doubt in the Scottish context; it does not make any new substantive provision.
§ On Question, Amendment agreed to.
§ Clause 5, as amended, agreed to.
§ Clause 6 [Premises resorted to for homosexual practices]:
§
Lord BOOTHBY moved Amendment No. 18:
84
Page 3, line 25, leave out ("lewd").
§ On Question, Amendment agreed to.
§
Lord BOOTHBY moved Amendment No. 19:
Page 3, line 25, leave out ("practices") and insert ("acts within the meaning of section 1 of this Act").
§ On Question, Amendment agreed to.
§
Lord BOOTHBY moved Amendment No. 20:
Page 3, line 26, leave out ("lewd").
§ On Question, Amendment agreed to.
§ Clause 6, as amended, agreed to.
§ Clause 7 [Time limit on prosecutions]:
§ Lord BOOTHBY moved Amendment No. 21:
§ Page 3, leave out lines 32 to 37 and insert—
- (" (a) the offences mentioned in section 2 of this Act; and
- (b) any offence under section 5 of this Act which consists in soliciting or importuning any male person for the purpose of procuring the commission of a homosexual act.").
§ On Question, Amendment agreed to.
§ Clause 7, as amended, agreed to.
§ Clause 8 [Restriction on prosecutions]:
§ 6.29 p.m.
§ Lord BEAUMONT of WHITLEY moved Amendment No. 22:
§
Page 4, line 4, at end insert—
("( ) No proceedings shall be instituted against any man who has not attained the age of twenty-one years at the time when the offence was committed for any offence to which this section applies.").
§
The noble Lord said: I rise to move this Amendment in the hope that the Government will see fit to say a few words about the principle behind it. I sincerely hope that they will not say anything much about the Amendment itself because I suspect that it is inadequately drafted, but as it is not going to be passed anyway, because I am not going to press it, that does not matter. However, it raises an interesting and important point of principle. The corresponding section in the 1967 Act was first moved by the most reverend Primate the Archbishop of Canterbury; it required
85
prosecutions of persons under 21 to be instituted by the Director of Public Prosecutions. It seems that what was hoped for then was that prosecutions would be extremely rare. The most reverend Primate said in May 1965 in the debate on the Wolfenden Report:
I now pass to another part of the Wolfenden proposals which I am anxious to commend. It concerns the prosecution of offenders under 21 years or age, and there are a large number of prosecutions of these offenders. Here again I would say that it is unsuitable to regard these offenders in criminal terms".—[Official Report, 12/7/65, col. 83.]
It would seem that the most reverend Prelate and a number of other noble Lords were already of a mind that young people should be protected from prosecution in these matters, as are under-age girls in heterosexual matters. The matter was hardly referred to again and in both Houses young people were regarded as being protected by the Act from older homosexuals; that was the idea the whole way through.
§ However, it has not really worked like that. For example, in 1975, 68 boys between the ages of 14 and 17 were prosecuted for buggery—this is in England but, when bringing it into line, the same might apply in Scotland—51 for attempting to commit buggery and six for indecency between males. Of that number, 56 were found guilty. It is difficult to understand what purpose prosecution has in this area, particularly at the lower end of this age range, and where a person of that age might deserve punishment, it would usually be because of other factors such as indecent assault and grievous bodily harm. It seems that this is an anomaly which possibly was not meant by those who originally passed the measure, and I should be grateful if the Government would give an indication of their attitude to these matters.
§ Lord BOOTHBYI propose to move an Amendment to leave out Clause 8, because in Scotland the Lord Advocate is in total control, as against the Attorney-General in England, and I am perfectly content to leave it to the Lord Advocate's discretion.
Lord KIRK HILLAt the risk of causing the noble Lord. Lord Beaumont of Whitley, a minor upset, I should explain that there are certain technical difficulties about 86 his Amendment. I am advised that the present Clause 8 is a straight adaptation of Section 8 of the 1967 Act, which is aimed at preventing malicious private prosecutions under English law. The noble Lord, Lord Boothby, said he intended to move the deletion of Clause 8 and suggested he is content with the power of control which the Lord Advocate in Scotland presently has.
I am advised that the Amendment would not make sense if read along with the existing Clause 8, which is Lord Beaumont's intention at the moment. The same clause would, on the one hand, say that prosecutions for offences involving men under the age of 21 could be brought only with the Lord Advocate's consent while on the other it would say that such offences should never be prosecuted. If Clause 8 were repealed—and Lord Boothby intends to propose that—the Amendment would be technically incorrect in that it refers to, "any offence to which this section applies". Either way the Amendment is technically misconceived.
The Amendment is not acceptable in principle, in the view of the Government, in that it would remove the Lord Advocate's discretion to prosecute in appropriate cases where under 21-year-olds were involved. He would certainly not prosecute in all such cases but, in the view of the Government, he should have the possibility open to him, for example in cases where there was a wide disparity between the ages of the two parties, sat a 20-year-old and a 12-year-old. That is a summary of the Government's view.
Lord CAMPBELL of CROYI should like to comment before the noble Lord Lord Beaumont of Whitley, replies. It had been my understanding, and it has now been confirmed by the noble Lord, Lord Kirkhill, that what is Section 8 of the 1967 Act applying to England and Wales is not necessary for Scotland. That section starts:
No proceedings shall be instituted except by, or with the consent of, the Director of Public Prosecutions".On Second Reading of this Bill, I indicated that there was a difference North and South of the Border in that the Lord Advocate had certain discretion North of the Border and that was why no cases had been brought in the last 10 years. Without 87 going into the details of the situation South of the Border, which I am not qualified to do, I have been advised that the Director of Public Prosecutions has certain duties laid on him South of the Border and therefore in certain circumstances he has to act. There is therefore a difference, and that was no doubt the reason for Section 8 being in the 1967 Act.Lord Beaumont has made his point regarding the case that he is making in respect of young persons, and before he replies I should like to ask him a question because I think both of us have received comments from the Scottish Minorities Group, as they call themselves. They put forward an Amendment of this kind, though they had the age 18—and of course that has been changed to 21, which suits what this Bill will now refer to. They in their comments said that they did not accept the situation where someone aged 19 would be associated with someone aged about 14, and Lord Kirkhill said 12. This is where discretion is needed, because the people who put forward that particular Amendment to me and others were in agreement with what Lord Kirkhill said. They were thinking in terms of persons aged 19 and 17. Nobody has actually said where the line should be drawn and I should be interested to hear what Lord Beaumont's views are on the substance of that matter.
§ Lord BEAUMONT of WHITLEYI think I can best answer the noble Lord, Lord Campbell of Croy, with the famous Irishism, "I wouldn't start from here". I should have thought that the answer was that if at any future time we were to consider this in legislation which we thought it fit to amend, if what is to me the lamentably high age of 21 was to be kept, then there should be a sort of double tier system underneath. I entirely see the point where there is a wide difference in the age range, but I cannot believe that in England in 1975 all these people in the 14 to 17 year age range who were prosecuted, and many of whom were convicted, were all picking on people very much younger than themselves. I may be wrong about that, but it seems that there is a legitimate cause for worry.
I raised the matter because I thought it was a subject to which the attention of the Director of Public Prosecutions might 88 be drawn in England, and in Scotland it is something which, after the passing of this Bill, they should be aware of—not to fall into the same trap that seems to have been fallen into here. I thank the Minister for answering that point and I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 8 [Restriction on prosecutions]:
§ On Question, Whether Clause 8 shall stand part of the Bill?
§ Lord BOOTHBYI beg to move that Clause 8 be omitted from the Bill.
§ Clause 8 disagreed to.
§ 6.40 p.m.
§
Lord BEAUMONT of WHITLEY moved Amendment No. 23:
After Clause 8, insert the following new clause:
§ "Indecent etc. conduct
§
. In any proceedings it shah not be alleged that any act between persons of the same sex constitutes indecent or unbecoming or unlawful conduct, except as provided in this Act, or where similar conduct between persons of opposite sexes would be similarly described.".
§ The noble Lord said: These two Amendments, to which I intend to speak separately, are designed to achieve the same end; that is, to try to help dispel the atmosphere of prejudice which exists in dealing with homosexuality and which exists even in the law courts. I believe that it has no place there, least of all. Again, I can save the Minister time. I am well aware that the Amendment is incorrectly drafted. Again, however, I think that there is a need for us to move in this direction.
§ The Amendment seeks to limit the restrictions on homosexual conduct to those which are restricted by the Bill and to try to give a better climate for fairness and lack of prejudice and lack of discrimination against homosexual men and women. An example of the effects that this Amendment would have, had I drafted it properly and were we to agree it, is in the matter of importuning and, possibly, indecent assaults as well. I understand that there was no Statute on importuning in Scotland but presumably that has been dealt with by Amendment No. 17 so probably it does not now arise. The Amendment might have a considerable 89 effect in employment protection where, in industrial tribunals, although everyone tries to be fair, one can have considerable prejudice. The Amendment might also have a considerable effect in combating the discrediting of persons because of their homosexuality which, again, arises very occasionally—and I emphasise that —in the summing up of the occasional judge, in situations where blackmail victims are held up in court in such a way as to seem rather worse than the blackmailers themselves and possibly in prejudice on and discrimination in sentencing and prison rules.
§ However, it is not so much the specific points as a general assertion of a principle which, although, as human beings, we may, in our private lives want and be entitled to exercise discrimination between homosexuality and heterosexuality—and we have heard many very deeply felt views about this today—should not at any stage be allowed to tinge the attitude of the law and the courts at any point. That is the purpose of the Amendment.
Lord CAMPBELL of CROYI should like to speak on this because, looking at the Amendments, I do not think that it has been fully brought out by the noble Lord, Lord Beaumont, that both Amendments are based on the same point and try to make the same point; that is, that conduct in public between persons of the same sex should be treated as if it were conduct in public between persons of opposite sexes. Putting it in another way, the Amendments would permit kissing and cuddling in public by males—and I am not referring to the ritual of congratulations after the scoring of a goal, strange custom though that has now become! I am referring to openly sexual behaviour of a homosexual kind.
That, as I see it, is the point that has been brought out in these two Amendments. As the noble Lord has said, he is not intending to press them or to try to get them included in the Bill, but he believes that it is a matter that ought to be raised and discussed. What he is suggesting—and I find it impossible to speak on Amendment No. 23 without speaking on Amendment No. 24 as well because they contain the same wording—is that conduct between males not extending to indecency and not being soliciting should be in no way reprehensible. It 90 would mean the outward signs of affection and certainly not soliciting. It could be between two persons who had been living together for months or years. Clearly, this should not be a serious offence and, as I understand it, Amendment No. 23 is intended to ensure that it is not. So when we move to Amendment No. 24, what we have to consider is whether this should he regarded in certain circumstances as a breach of the peace. Do we want to encourage public demonstrations of homosexual relationships? That is the question which comes up under Amendment No. 24.
The noble Lord, Lord Kirkhill, will be able to enlighten the Committee more, but it is my impression that under Scots law, a breach of the peace can cover a very wide variety of incident. The kinds of conduct in public which are generally disapproved of and which, by general consent, ought to be stopped by the police while they are happening are, in Scotland, largely dealt with by the breach of the peace provisions. Putting it in layman's language, creating a disorderly situation or causing a nuisance to others is dealt with as a breach of the peace in Scotland. I do not believe that there is an equivalent in law in England and Wales. I believe that I ought to make that clear.
My own view—and, again, I am speaking personally because the Bill and this subject are a matter for conscience and personal views—is that I should not want to add anything to the law in Scotland or South of the Border that encouraged public demonstration of homosexual relationships. On the other hand, I think that in the breach of the peace provisions the police must be reasonable in what they consider to be causing a disorderly situation or a nuisance. So I should like to leave the matter as it is now, handled sensibly and discreetly by the authorities and the police. I should certainly think it a great mistake if anything like this were to be added to the Bill. All the Bill is trying to do is to legislate for Scotland on the lines of the present law in England and Wales. As I see it, the point that has really been raised by the Amendments is the question whether outward behaviour in public between males—behaviour which is not indecent—should be regarded in exactly the same way as similar behaviour between a male and a female in public. That, as we all know, is something which 91 people nowadays are prepared to expect and see in public places.
§ Lord KIRKHILLAs I indicated, the Government's view of this Bill is one of benign neutrality and the Government did not propose to comment in any detail of this Amendment in the name of the noble Lord, Lord Beaumont, other than to say that it was right to point out to your Lordships that implementation of the Amendment would carry the law in Scotland significantly further than the present state of the law in England.
§ Lord BEAUMONT of WHITLEYIndeed, that is so. It is of course a direction in which I should like to take the law of England as well. My comment on what the noble Lord, Lord Campbell, said—although the present Amendment goes significantly wider than the point that he was taking—is that he approaches this subject, as have a large number of the speakers today, by asking, "Do we wish to encourage?" I approach it from a different standpoint and this is one of the reasons why my Party, unlike other Parties, has a policy on this. We say that things should not be forbidden to citizens unless a very good reason and case can be made out for forbidding them. So we do not approach this by saving, "Should we encourage?" but by asking, "Is there sufficient justification for the awe-inspiring responsibility of a Government to restrict people's freedom?" I still think that, despite the fact that I entirely agree that on the whole the public must be protected from what shocks them, the innocent display of affection from one human being to another in public is such that I do not think it should be penalised. I beg to withdraw the Amendment.
§ The Lord Bishop of NORWICHI should like to make a brief remark at this stage. The noble Lord said in his speech that he would like a change beyond the tidying up operation, which seems to be the work that the noble Lord, Lord Boothby, is seeking to do here in bringing the two laws of England and Scotland into unity. It is this very desire at every point to change laws relating to morality which I believe means that this Amendment, though apparently very small, should be resisted. For instance, from the parallel 92 debate which we had in your Lordships' House earlier today this very point was made by one of the major young people's organisations in the country. I quote from one of its letters:
Unfortunately, the many pressure groups are known to look upon the lowering of the age group to 18 as the thin end of the wedge, the first step towards a still lower age, and eventually the removal of all restraints".I really believe that the law is designed not only to punish the evil doer, but to protect people who are vulnerable and in moral danger; and that when the country is seeing, as it is as the moment, an upsurge in the breadth of goodness and unselfishness and idealism in a remarkable way, this is the very time at which we should not be seeking to illiberalise our laws by putting more people at moral risk. Therefore, I hope that the Committee will resist the Amendment.
§ Amendment, by leave, withdrawn.
§ 6.53 p.m.
§
Lord BEAUMONT of WHITLEY moved Amendment No. 24:
Insert the following new clause:
§ "Conduct leading to breach of the peace
§
(. In any proceedings it shall not be alleged that any act between persons of the same sex constitutes conduct likely to lead to a breach of the peace, except where similar conduct between persons of opposite sexes would be so described.").
§ The noble Lord said: We have largely covered this matter under the last Amendment, but there is one more point that I want to make in addition to the main one which covered the last point. I am concerned here with a complaint which has arisen in England relating to cases where homosexuals are subject to harassment, but in this context I wish to acknowledge that Scottish homosexuals have, on the whole, received extremely fair treatment from the Scottish police forces. However, I am concerned here with harassment on a large scale as, for instance, has occurred recently in Cornwall. It is considered to be conduct likely to cause a breach of the peace if, in a homosexual bar or club or homosexual resort of any kind, people are seen dancing with each other or expressing casual affection, although in a situation in which nobody present could possibly be offended. Discrimination lies at the back of this Amendment because heterosexual behaviour in such cases would not be treated in the same way. 93 That is the only extra point I want to make. Of course, I will give noble Lords the opportunity to comment on the Amendment before I withdraw it.
§ However, before that I should like to say one thing to the right reverend Prelate. It is no use our arguing together. We have totally different concepts of what the law should be. I think that it has absolutely no place in upholding private morality of any kind. I hope that the right reverend Prelate was here when I quoted C. S. Lewis, whom I think put the matter much better than I possibly could in the quotation to which I referred. I certainly want to see homosexual and heterosexual behaviour—all sexual behaviour—treated exactly on a par before the law. I know that I will see it in my lifetime, and I look forward to it. Meanwhile, I beg to move the Amendment.
Lord CAMPBELL of CROYI should like to take a minute or so in order to reply to the criticism which the noble Lord, Lord Beaumont of Whitley, made of my remark when I was discussing this matter in our last debate, in relation to the question of whether this behaviour should be encouraged. He said that that was really the wrong approach. I did not want to go over the ground of the debate we had earlier today, because in my speech on the Bill introduced by the noble Earl, Lord Arran, I spelt out the reasons why I thought that young people should be protected from certain things. That was the background to my asking whether this should be encouraged, on the basis that a young heterosexual of 18 might well come under the domination or the example of an older man and be lead into a homosexual life, when in fact he was not at all a homosexual by nature; and this could upset his life, his career, his chance of getting married, and many other things. I will not go over that ground again.
But I want to say to the noble Lord that when he speaks of freedom he must bear in mind that it is not just the freedom of the individual to do what he likes; it must be the freedom of other people to be protected also from influences which may cause them damage. That has been said two or three times today, and I say it again because that is what I meant when I asked whether something should be encouraged. Here I should like to 94 give a small example, though I think it brings out the point quite well. None of us is ashamed of the human body, but we do not go about naked. Indeed when "streakers" appear on cricket grounds or elsewhere they are led away; they are not encouraged. I put it again. That is the word I am using. They are not encouraged, because on the whole the community has decided that if people want to do that they should go to nudist colonies or elsewhere, and it is to protect the freedom of other people that mass "streaking" is not encouraged. That is an example of what I meant, though in a very small way. I have indicated my view on the Amendment, and I simply wanted to try to clarify the attitude that I have taken.
§ Lord KIRKHILLAgain on this Amendment the Government consider that this a matter for the consideration of the Committee. I do not want to be too boring about technicalities, but perhaps I could say to the noble Lord, Lord Beaumont of Whitley, that (as he recognises) his Amendment seeks to provide that a prosecution for breach of the peace could not be brought in respect of homosexual behaviour, as he has just been telling us, if similar heterosexual behaviour would not be prosecuted. I am advised that the difficulty with the Amendment as proposed is that it is not necessarily the conduct which determines whether an act constitutes a breach of the peace, but the circumstances in which the conduct takes place.
§ Lord BEAUMONT of WHITLEYI thank noble Lords for having treated these Amendments seriously, however badly drafted, because they were intended seriously as points which undoubtedly we shall have to discuss another day when the reports of the various committees come in and the whole question of sexual law reform comes before your Lordships' House. I should like to say to the noble Lord, Lord Campbell of Croy, that I think two points arise over the question of protection. In regard to the protection of the public from matters which would shock them, I am entirely with the noble Lord. I think we have got to do this, and I see that there is a danger in this Amendment which I have put forward on that matter. I am entirely on the noble Lord's side on that matter. I am 95 not for doing it in the streets, nor for other people doing it in the streets. Where I think I am opposed to him, and to the right reverend Prelate, is in speaking of, "the freedom to protect people". I think it is no duty of the Legislature of the State to protect adult citizens of sound mind from themselves or from the influences of other adult people. I find that an appalling encroachment on the liberty of the subject. I find it a move towards a totalitarian approach when you start saying, "Let us do good to them". It is foreign to large parts of the Conservative Party, and this is a view which Tories and Liberals, particularly, have long shared. That is my attitude to that. I thank your Lordships for giving me a hearing.
Lord CAMPBELL of CROYI hope the noble Lord will forgive my interrupting him, but this is Committee stage and we can speak several times. There is a misunderstanding here on what the noble Lord said about adults being free to do things provided they cause no offence or harm to other people. The point is that these are acts in public, and if people are carrying out acts in public then nobody knows whether or not young people will be there or what are the ages of the people there, who might be very much affected by these acts and the homosexual relationship, tendency and everything else which they reflect. So I was not saying that acts such as the noble Lord described are, in private, reprehensible: I was simply saying that when they are carried out anywhere in public then you do not know how the audience is made up, and it could include a young person who, on seeing this, could be much affected by it.
§ Lord BEAUMONT of WHITLEYI do not really think that displays of love and affection between human beings, at the particular time in which we live, will ever do much harm, particularly when compared with some of the other displays that are seen; but, with that, perhaps we can leave it, and I beg your Lordships' leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 9 disagreed to.
96
§
Lord BOOTHBY moved Amendment No. 25:
After Clause 9, insert the following new clause:
§ "consequential Repeal
§
(. Section 7 of the Act of 1976 is hereby repealed.").
§ The noble Lord said: In moving this last new clause, I should like to say to your Lordships that, having sat in Parliament for over 50 years, this is the first Bill, and I hope the last, that I have ever introduced. I should just like to thank sincerely the noble Lord, Lord Kirkhill, the Scottish Office, the Crown Office and your Lordships generally, on all sides, for all the help given me.
§ On Question, Amendment agreed to.
§ Remaining clause agreed to.
§ House resumed: Bill reported with the Amendments.