§ 101BA In subsection (6)(b) leave out ("any party") and insert ("both parties").
§ 5.9 p.m.
§ The Earl of PERTH
We now come to the manuscript amendment which I mentioned when we were dealing with Amendment No. 101A. This is purely a consequential amendment. If one looks at subsection (6)(b) one finds the wordswithout the consent of any party to the act".In Amendment No. 101A we have ruled out the possibility that more than two persons can take part. "Any party" seems to me to visualise that there would be more than two, whereas our amendment lays it down that there should not be more than two. Therefore, the proposal is that instead of the words "any party" we should insert the words "both parties" in order to make the position quite clear. If, however, the noble Earl, Lord Mansfield says that there is no need for that amendment, certainly I shall not press it. I beg to move.
§ Moved, That Amendment No. 101BA as an amendment to Commons Amendment No. 101 be agreed to.—(The Earl of Perth.)
§ The DEPUTY SPEAKER
My Lords, for the greater clarity of those Members who do not have it before them I will read Amendment No. 101BA again. It is that in subsection (6)(b) the words "any party" be left out and the words "both parties" be inserted. The question is that Amendment No. 101BA be agreed to.
§ The Earl of MANSFIELD
My Lords, perhaps I could just say for the record, since I disagreed with the form of wording of the noble Earl's original consequential amendment, that this one seems to be much more sensible and if it commends itself to the House then the Government would not complain.
§ On Question, Motion agreed to.
§ On Question, Whether the Commons Amendment No. 101, as amended, be agreed to?
§ The Earl of LAUDERDALE
My Lords, a number of your Lordships in speaking to the last amendments, with 1833 which I personally sympathised, felt bound to reserve their position, directly or indirectly, on the general issue of this new clause and in discussing it one is bound of course to go over a certain amount of old ground. Among the smaller duties of life, I hardly know any more important than not praising where praise is not due and seldom has a Government spokesman damned a cause with such faint praise as my noble and learned friend Lord Mansfield did on the amendment. He described the manner of its introduction as unfortunate. He said it was introduced at a very late stage. He said, with all the authority of his office, that it was introduced at a time which precluded consultation, and he also said that it precluded debate. He might have added, what my researches have shown, that when the matter was voted on in another place on a free vote, no fewer than eight Ministers of the Government voted against it, and even though the Scottish Office continues to swell it does not as yet have eight Ministers; and at least one or two from outside the Scottish Office joined in on what I will call "the Government side" on that occasion. I believe that had the debate occurred with a full House instead of being decimated by a garden party, as it was, the Opposition would have been a good deal stronger.
The noble Lord, Lord Ross of Marnock, with all his prestige and standing as a former respected, if controversial, Secretary of State, said that in effect this "pops" into a statute the whole of another Bill "pops it in", that was his phrase. He again stressed that this was done on not more than two hours' debate; he again stressed that it evaded close public scrutiny and that in any case it does not really reproduce the 1967 Act. He has asked my noble friend what is the Government's attitude in general to this, and we are still looking forward to hearing; but after what we have already heard I cannot think that it will be very enthusiastic.
The noble Lord, Lord Ross of Marnock, said that if we have to have this clause he will support the amendment, and I think many people took that view. But it might well be that he and others feel, with me, that it would be better to throw this new clause out altogether so that on another occasion it may be duly considered in the light of proper public discussion in Scot- 1834 land and still more proper consultation through the channels that are familiar.
The noble Lord, Lord Ross of Marnock, also pointed out what had not occurred to me until he said it, that not only did this projected new clause escape the ordinary Committee stage of the Bill but it was not even exposed to the rigours of discussion in either the Scottish Grand Committee or the Scottish Standing Committee—This for a whole new Bill which is to affect the law of Scotland. It is a clause which is long, which plumbs unknown depths of legal complexity and I think it is only fair—without, of course, wishing any offence to Members of another place—to say that it was really smuggled in without proper consideration. The noble Lord, Lord Ross, said "popped in"; I say "smuggled in". It was never even listed among the Bill's original objects; it was never even suggested on Second Reading. It was tabled with the minimum possible notice of only a few days. Of course its promoters said that the reason why it was done in this way was because anything so important should be kept for the Floor of the Whole House. Well, my Lords, if you believe that you will believe anything, because there was the Grand Committee available and it could have been widely discussed there by Scottish MPs.
I think one has to say that the fact is that the promoters knew that this was controversial and dangerous and they really funked the Committee stage and went on to say what is to my mind quite incredible—and I quote:This new clause is already acceptable to their Lordships.Presumably that was a reference to Lord Boothby's previous Bill, but it does not read like that in the Hansard text and certainly this matter has not been discussed in this House in this Parliament in that way. At the least I suggest that there was something approaching a breach of parliamentary courtesy—I say "approaching" because I do not want to offend the other place but it was also something that came very close to a misstatement and may I say that lies are as communicative as fleas.
I suspect that behind the sincere intentions of Mr. Cook there were other intentions that may have been less sincere 1835 and more obscure. It might even be described as a calculated con trick because the case was that this was to bring Scots law into line with the English. We know from the last debate on the amendment tabled by the noble Lord, Lord Fraser of Tullybelton, that it did not do so. But supposing the promoters had got away with this and supposing therefore that this "orgy law", as Gay News called it, which meant that things done in private could be done in a whole roomful of people—a room as big as the Albert Hall, if necessary—then the next proposition would have been to bring English law down to the level of Scots law. That would have been stage three, but mercifully we have been saved that, thanks to the amendment moved by the noble Lord, Lord Fraser, which I regard as a fail-safe device if we cannot get rid of this new clause altogether. The whole story is murky and I never wonder to see men wicked but in Jonathan Swift's words I do often wonder to see them unashamed.
§ Lord ELWYN-JONES
My Lords, if I may intervene, I seem to have heard the noble Earl making what were more than offensive remarks about a Member of another place. He accused him of "a con trick"; I did not think that was customary in the relationship between the two Houses.
§ The Earl of LAUDERDALE
My Lords, I am much obliged to the noble and learned Lord for bringing his invariable courtesy and charm to my correction. No, I was not saying that Mr. Cook was guilty of these things but that I suspected—and do suspect—that those who were promoting it behind him may have had very dubious purposes. I am taking great care not to say anything that could be taken as damaging to another place.
§ Lord ELWYN-JONES
My Lords, I should have thought the noble Earl had really added insult to injury by extending the limitation of his insults previously to the generality of Members in another place.
§ The Earl of LAUDERDALE
My Lords, not even to the generality of Members; those who are promoting the 1836 matter. In fact I shall come presently to some of the pressure groups who are pressing this. I am not referring at all to Members of another place but if it is the wish of your Lordships I will very gladly withdraw what I have said.
§ Lord McCLUSKEY
My Lords, when the noble Earl is considering his position will he bear in mind that the right honourable Secretary of State for Scotland, in col. 390, informed the House—I quote what he said of this particular clause:It is merely a carbon copy of an English Act passed some time ago.The noble Earl can hardly suggest that Mr. Robert Cook misled the other place into thinking that the law was being brought into line with the law of England when the Secretary of State for Scotland assured the House that the Bill then before the House was a carbon copy of the English Act.
§ The Earl of LAUDERDALE
I am much obliged to the noble Lord, Lord McCluskey, for coming to my assistance. As a matter of fact, the Secretary of State said something else that was not quite accurate; he said if the Bill came back to our House we could either accept it or reject it and not amend it, which was incorrect. As a matter of fact the new clause remains dangerous because it still allows under-24s to claim that their partners seemed to be more than 21. It also limits Scottish prison sentences to two years against 10 in the South. Therefore, in both these respects I submit that it is not in fact the carbon copy which was claimed. Perhaps I have said enough on that score.
All I would like to do further is to make a general point, that even the most primitive societies, let alone the most civilised, deny that the right to sexual gratification is absolute; they ensure, all of them, that the law is supportive of the social institution of marriage. Surely we will agree that morality cannot be legislated but behaviour can be regulated, and judicial decrees may not change the heart but they can restrain the heartless, so that even base men will disown from shame what from folly they crave.
We are talking about a disagreeable subject and there are those who would 1837 rather we did not discuss it at all. But this practice is gratification for gratification's sake; socially it is without purpose; it produces no offspring; it demands no special commitment to the partner; it is especially tolerant of promiscuity. And since those who advocate this behaviour cannot multiply by procreation are they therefore to be allowed to do so by recruitment, by public display, advertising, by soliciting the young?
There is nothing to suggest that Scottish opinion at large is seeking such a change in the Scottish law. Indeed, we are told the contrary. Most of us are well content with the many differences that do exist. I believe it is the case, for example, that, suppose somebody tries to commit suicide by drowning in the Tweed, if he is pulled out on the English side he is sent to prison, and if he is pulled out on the Scottish side they dry his clothes and send him home.
§ The Earl of LAUDERDALE
When the present clause was introduced—I forebear to use the word I used earlier which caused such disturbance on the other side—after only two or three days on the Order Paper, the Scottish public had no time to react. So our land of Calvin, oatcakes and sulphur went unheard. If we cannot be decent let us at least try to be graceful; if we cannot be moral let us try to avoid being vulgar. To oppose this change is not to ask for a witch-hunt for police snooping or for victimisation; it is simply to ask for a declaratory law to remain in force about right and wrong sexual behaviour, that this should stay on the statute book as an ethical pointer for the community at large. In those terms, I beg to move the Motion standing in my name.
§ Moved, That this House doth disagree with the Commons in their Amendment No. 101, as amended.—(The Earl of Lauderdale.)
§ Lord GALPERN
I should like to support the noble Earl in his excellent opposition to the proposed addition after Clause 77. What has puzzled me throughout the whole of this debate is when the noble Lord, Lord Boothby, said "Let us get rid of it this afternoon". We will 1838 not get rid of it this afternoon. I would not be surprised if the noble Lord, Lord Boothby, would be one of the agents who would not let this rest, because he moved in 1977 an amendment to lower the age to 18, and from 18 we will then go to 16, and probably end up at the age of puberty before we are finished. We still have even from that angle the position of Northern Ireland, which as recently as 1979 refused to alter or reform the law on homosexuality. A Northern Ireland subject took a case to the European Court on Human Rights, and it was dismissed because of the fact that although he proclaimed himself to be a homosexual he had not been charged with the offence. That seems to be one of the arguments in regard to the alignment of English and Scottish law on this subject. We have this Act which creates a criminal offence, but it has never been exercised. What is wrong with that? The Scottish people have not suffered because of the fact that we are not in line with the English law at the present time. If successive Lord Advocates decide they are not prepared to bring someone who is guilty of a homosexual act to justice or subject him to criminal proceedings, nothing has happened; they are no worse off in Scotland. Certainly the Scottish people will not thank this House if your Lordships carry this particular clause, the addition to Clause 77.
I am guided in this matter by two opinions. Let me interpolate here that we have had no statistics this afternoon of any kind, but I will quote these statistics which have had a great influence on my opinion in this matter. On 10th May 1966 the late Lord Kilmuir said that during his experience as Home Secretary out of 96 cases in Britain for homosexual offences that were reported to him only 15 were cases of genuine inverts, and the others included those who committed the act from motives of sensationalism or for money or for reasons of that kind. That is the first opinion. The other is the opinion of the Wolfenden people themselves. The Wolfenden Report admitted that the passing of the English Act when it was passed would lead to an increase in homosexual practices and activities; they admitted it. If I were to cite a third opinion it would be that of the late James Adair, one of our best known procurator fiscals in Glasgow, who pre- 1839 sented a minority report. He argued strongly for exclusion of Scotland from any proposal to bring it into line with England.
We have heard that two hours were devoted to it; it was not even two hours; exactly 100 minutes were devoted to this clause. I support the noble Earl, Lord Lauderdale, that it was slipped in—I go further and say deliberately slipped in—at that stage by Mr. Cook in another place because the purpose was not to give it adequate discussion. This is a matter, as the noble Lord, Lord Ross, has pointed out, which was the subject of an Act as far as English practice is concerned, but the Scottish people were denied the opportunity of studying in depth the whole of the proposal in this new clause and the effect it would have upon the morality of the people in Scotland. Surely they ought not to be denied that opportunity by this slick method of putting it through.
Therefore, when we come to consider the matter from the angle of what we are doing should we not turn our attention, as we have done with alcoholics, to engaging in more research into the causation of honosexual practices or homosexual indulgence. Surely research, which I think is grossly inadequate if there is any going on at the present time, should be directed, as we have spent millions of pounds on trying to help alcoholics, to some medical effort to relieve these people of what their indulgences are and what their practices are. Nevertheless, we will still have people saying that we should have it in line with England, that we should align the Scottish law with the practice of English law. We have dozens and dozens of Scottish laws and Acts that do not apply to England and they are not in line with England. There is an excellent one I could suggest to the English legal practitioners. Our excellent criminal verdict of "Not proven" could usefully be adopted, but we do not try to impose that on them. It would be a very useful contribution indeed to legal practice if we tried that one.
This matter has been argued so much on the English basis but never on the Scottish basis, and perhaps I will get an answer to the question I am going to put. If we pass this addition to Clause 77 are we or are we not legalising sodomy 1840 carried out by two homosexuals in a private place? My view is that we are. For hundreds of years we have operated against sodomy but now we are going to legalise that very act. As we have already had explained to us, the Secretary of State for Scotland and Mr. Rifkind and Mr. Alec Fletcher have the pulse of the views of the people in Scotland. They know far more about what is going on, what is right and what we ought to do. Each one of them trooped into the Lobby and voted against the Bill, together with the other Ministers who have been mentioned. Therefore I think we should follow the excellent lead in this particular field given to us by the Members of the Commons when this came before the House of Commons.
§ Lord FERRIER
My Lords, I had not intended to speak for long, but I find myself involved in this under the references by the noble Lord, Lord Boothby, to his Bill in 1977. He gave some figures; I think he mentioned 127 votes to 25. That was not on the Bill.
§ Lord FERRIER
My Lords, it was on an amendment moved by me. On that occasion I moved that,in view of the present proposals for a Scottish Assembly now before Parliament and of the subject matter of the Scottish Bill this House considers its introduction inappropriate and untimely and declines to give the Bill a Second Reading".That was rejected by the House, but I took no part in the subsequent—
§ Lord BOOTHBY
My Lords, if I may interrupt my noble friend, I should like to say that I did not give those figures. They were given by a member of the Opposition.
§ Lord GALPERN
My Lords, I should like to repeat that I quoted what the late Lord Kilmuir said in this House on 10th May 1966. Is that what the noble Lord referred to?
§ Lord FERRIER
My Lords, I did not take part in the Committee stage of the Bill because it was manifest at that time that not only were we possibly going to have a Scottish Assembly where this matter could have been properly discussed, in Scotland—which has not been done—but there was no chance of its ever reaching the statute book unless, as the noble Lord, Lord Campbell of Croy, said, some Private Member had been able to pick it up. With those remarks, I feel that I want to go on to support my noble friend Lord Lauderdale. I am reinforced in that feeling by the speech just made by the noble Lord, Lord Galpern. To my mind there is no doubt that the people of Scotland as a whole, if they even know of this clause in the Bill, would regard it as a "swizz". It has been got in by some sort of very successful manoeuvre and I feel it is up to your Lordships to see that that does not carry weight. The noble Lord, Lord Campbell of Croy, made that point, as did the noble Lord, Lord Ross of Marnock.
I feel that on that ground alone we should reject this amendment and accept the suggestion of the noble Lord, Lord Lauderdale. I have said before, and I say again, that we in this House sometimes have a wider range of understanding of people than others have. I support this Motion because the decision of the House of Commons, obtained as it was, was obtained, as I think the noble Lord, Lord Ross, pointed out, without even reference to the Scottish Grand Committee. Those of us who opposed the Scotland Bill have said, "What's wrong with the Scottish Grand Committee? Isn't that the proper place?" This was not discussed in it at all. The noble Lord, Lord Galpern, referred to the Wolfenden Committee. I did not quite catch whether he referred also to the minority minute of the late Mr. Adair. To my mind that was the real root and answer to the problem we have to face today. If one agrees with Mr. Adair, then this offence is a crime, and law or no law, public or private, male or female, compassionate or otherwise, the Scottish people as a whole dislike and despise homosexual behaviour.
I suggest that we should let the Scottish statute stand, at least until the people of Scotland have had time to thresh it out for themselves. My wife, who is much 1842 more easy going than I am, is prepared to agree with me in the matter but she complains bitterly that these wretched people have turned an ancient, kindly, happy Saxon adjective into a dirty word. What are we now going to call the Gaiety Theatre? I leave it to your Lordships.
§ 5.36 p.m.
§ Lord McCLUSKEY
My Lords, in speaking from this position I speak simply for myself and not on behalf of the official Opposition. I want to make one or two points that I do not think have been properly made in the discussion which your Lordships have heard this afternoon. First of all, there has been a considerable amount of criticism, some of it happily withdrawn, of the sponsors of this clause in another place, and in particular of the decision to introduce the new clause at the Report stage of the Bill in another place. It was not the fault of Mr. Cook that this Criminal Justice Bill was introduced into this House first, rather than into the other place. He told the House—at column 317—and those who have read the Commons proceedings must be aware of this—that when the Bill came to the Commons he had had discussions with many honourable Members about whether it would be more appropriate to raise this matter on Committee or at Report. He also informed the House that he had consulted one of the Ministers on the team handling the Bill and it was the unanimous view of those whom he consulted, including the Minister, that it would be more appropriate to raise the issue on the floor of the House. So I utterly reject the criticism of Mr. Robin Cook and the sponsors which has been put forward this afternoon by several of your Lordships.
Let me turn, if I may, to the merits of the clause. Those who attended to the first Question that was asked in the House this afternoon will be well aware of the fact that it is the Lord Advocate, and he alone, who decides whether or not there should be a prosecution in Scotland. In relation to this matter of homosexual acts between consenting adults in private, four successive Lords Advocate have told Parliament that they will not prosecute in respect of such activities carried out by adult males in private and with the consent of those taking part. In my submission, it is quite wrong as a matter of constitutional principle that such 1843 activities, if criminal, are never prosecuted simply because the Lord Advocate so decides. If the Lord Advocate is not to treat such activity as criminal then Parliament should remove that offence from the calendar of crimes and offences.
§ Lord FERRIER
My Lords, am I not right in saying that the reason they do not prosecute is that in Scottish law evidence requires corroboration and they cannot get it?
§ 5.40 p.m.
§ Lord McCLUSKEY
My Lords, we prosecute many rape crimes in Scotland without the evidence of more than one person who was present. There are many other signs and circumstantial pieces of evidence which could prove the crime; it is perfectly easy. In Scotland we do prosecute sodomy between a male adult and a male who is not adult. So, where the evidence is there, we can and do prosecute, but the Lord Advocate does not prosecute in the case of consenting male adults—that is to say, those over the age of 21—committing the activities in private.
§ Lord FOOT
My Lords, it is a fact, is it not?—and the noble and learned Lord will be able to tell us—that over the years, ever since the 1967 Act was passed, successive Lord Advocates have given as the reason for not authorising prosecutions of consenting adults in Scotland for acts committed in private, the view that they are not prepared to take action which would be contrary to what has since that time been the law of England. They have not given as a reason for their failure to prosecute the fact that they cannot get the evidence or the corroboration.
§ Lord McCLUSKEY
My Lords, I am obliged to the noble Lord, I think that that is so. I am more concerned with the fact that adults who choose to engage in homosexual activities in private in Scotland know that they will not be prosecuted. It is constitutionally absurd that they should be committing a crime and that the public prosecutor who prosecutes alone in the public interest, should say, "I will ignore the commission of this crime". That is what happens, and logic demands that the law ought to be brought in line 1844 with the practice of successive Lord Advocates of each party. So, I believe that this matter ought to be regulated.
We have been told today, and on other occasions, that this is not the way to do it and that it should not be inserted into the Bill like this at this stage. But what is the way to do it? Apparently it ought to be done by a measure introduced by a private Member. We know that in another place in order to have any chance of putting through a Bill of this kind, one must be first, second or third in the ballot for Private Members' Bills. What then are the prospects that, out of the, I think, 635 Members, in another place, one of them will be a Scot, that he will be at the top, or very near the top, of the list, and that he will thus have an opportunity to bring in a measure of this kind if he chose to espouse it? The chances are practically nil. The Government say that they will not sponsor this kind of legislation, and that it ought to be done by Private Members. So, if it is not to be done in this way, when on earth would it be done, and when would the law be brought into line with the practice? The answer is that it might take decades, and we would then be left with the situation that Lord Advocate after Lord Advocate would be obliged to go on saying, "Crimes are being committed according to the law of Scotland every day in different parts of Scotland, but I chose to ignore them".
§ Lord GALPERN
My Lords, is it not the case that the noble Lord, Lord Boothby, introduced a Bill in this House?
§ Lord McCLUSKEY
Yes, my Lords, but we were assured by the noble Lord, Lord Campbell of Croy, that this House was able to treat that Bill as an occasion for a gentlemanly discussion because everybody knew that it had not the slightest prospect of passing through another place. That is exactly the point that I am making.
§ Lord ROSS of MARNOCK
My Lords, my noble and learned friend may be acquainted with the proceedings in this House, but I do not think that he is very well acquainted with the proceedings in another place. There are such things as Ten Minute Rule Bills, as well as the ordinary proceedings of the ballot. There is the procedure of the Private 1845 Member's Bill coming from this House. I do not know whether he knows it, but a purely Scottish Private Member's Bill has far more chance than any other of being passed in another place because it can be sent to the Scottish Standing Committee. I have known five Private Member's Bills pass in one day through that committee.
§ Lord McCLUSKEY
My Lords, of course I bow to my noble friend's knowledge of the procedure of the other place, although mutterings close to me from other former Members suggest to me that a Bill of this kind has very little chance of seeing the light of day and passing through another place under the procedures to which my noble friend has just referred.
I shall not endeavour to rehearse at any length the argument that the law on this matter ought to be the same in Scotland as in England. But I believe that there is no sufficient justification for the difference. This is a matter in which the people are not dramatically different, and so far as the religious tradition is concerned, Mr. Robin Cook informed the other place—and I believe that he is right—that in 1968 the Church of Scotland endorsed the view that the law ought to be changed in the sense of this new clause. I do not think that that was a wrong statement, and I think that given that substantial support of the Church of Scotland, it is a factor that we ought to take into account.
The Earl of SELKIRK
My Lords, I think that I should tell the noble and learned Lord that that has been flatly denied.
§ Lord McCLUSKEY
My Lords, I can only refer to what was said by Mr. Cook, who made a very careful speech. I am not a member of the Church of Scotland, and I am not very familiar with its proceedings.
One other point that I want to raise is that the noble Earl, Lord Lauderdale, referred to the Royal Garden Party and suggested that that was the reason why the clause succeeded in another place. The voting, in fact, was 203 votes in favour and only 80 against. Of the 40 Scots who voted, 29 voted in favour of the clause and 11 voted against.
This matter has been discussed many times. The last time it was discussed 1846 fairly fully was when I was the Solicitor-General for Scotland. It came before the House in a Consolidation measure—I think that it was the Act of 1976—and we had to say to the House, through the then Lord Advocate, that this was not a matter that could properly be dealt with in a consolidation measure. Unless we use this kind of vehicle to make this logical change in the law, I think it may take an awfully long time before the law is brought into line with the practice. For that reason, and no other, I would support the new clause.
§ Lord SHACKLETON
My Lords, I intervene only very briefly because I have found this a most distressing debate. I have found the allegations and the imputations of the noble Earl, Lord Lauderdale, and my noble friend Lord Galpern—a former Deputy Speaker in another place—really very unpleasant. I think it is quite improper to base an argument on the grounds that something has been slipped in—the implication that somehow there have been sinister forces at work. That is designed simply either to obscure the argument or to reflect the lack of charity—
§ Lord GALPERN
My Lords, I am sorry to interrupt, but I have been referred to as a former Deputy Speaker. May I intimate to your Lordships that "slipped in" is a parliamentary phrase; it is parliamentary language.
§ Lord SHACKLETON
My Lords, I am well aware that it is parliamentary language, but it is none the less objectionable unless it is justified by some sort of evidence, and there has been no such evidence. The fact is that it is very difficult to get this type of legislation through Parliament anyway. I say to my noble friend that I do not think that he would really suggest that the Ten Minute Rule Bill is a serious way of dealing with this type of matter.
What I find so distressing is that we are really back to Wolfenden again. I ask noble Lords who have opposed this provision to look up some of the basic arguments and to show a certain amount of charity. Those of us who are more fortunate and who are not homosexuals ought in my opinion to be sympathetic to those who are; and to some extent 1847 this situation reflects that nasty side of mankind which resents and attacks the minority.
I do not doubt the sincerity of noble Lords, and I do not accuse them of slipping in arguments; none the less, I hope that your Lordships will follow past practice. The House of Lords has shown a great deal of courage in the past. Much controversial legislation first saw the light of day, and was first debated, in your Lordships' House and, like Lord Boothby's Bill, was improved. There were any number of Bills of that kind. There is no right way to introduce this sort of legislation. I find it very difficult to suggest that the vote in another place, where there was a majority of over two to one—200 to 80 I think—was due to the fact that it happened to be the day of the Royal Garden Party. I hope that in this matter your Lordships will show the consistency that you have shown in the past. I for one find it intolerable that there should be a law which is not going to be enforced, and will never be enforced.
I am not competent to say whether or not the Church of Scotland, in fact, welcomes this legislation. None the less, there are valid reasons from the Church's point of view why it should be welcomed—so that those who are in need of help will know that they are not, in fact, in breach of the law, whether or not it is in force or whether there is an abstention.
I shall not attempt to recap all the arguments in the Wolfenden Report. They were immensely widely discussed. In particular they were discussed in your Lordships' House. I remember that a number of right reverend Prelates supported it, and I hope that today we shall not go back on a course on which I think we are well embarked, which has been adequately discussed and which could have been discussed for very much longer in another place. Therefore, I hope that those who may have been bothered by some of the arguments that have been advanced will stick to the liberal and charitable line in this matter.
§ Lord BOOTHBY
I do not want to detain your Lordships for more than a few more minutes, but when I rose last time and attempted to speak, and when the noble and learned Lord the Lord 1848 Chancellor put the Question, I was about to say that in the light of the statements made by the noble Earls, Lord Mansfield, Lord Selkirk and Lord Perth and the noble Lord, Lord Ross of Marnock, I proposed not to oppose the amendment, which evidently commanded the approval of the House. That was the original amendment and, in fact, I did not oppose it.
But on the main and general question, I should like to tell your Lordships—before you reach a final decision—how it all started. There has been much discussion in this House today as to what went wrong in this House and in the House of Commons; how it should not have been introduced; what was done and how it was slipped in. But how did it begin? I rely on a brief quotation—which I think is absolutely devastating—from the later Sir Travers Humphreys about what gave rise to all this. It is Section 2 of the Criminal Law Amendment Act 1886. This is what Sir Travers Humphreys wrote about it:Until that Act came into force"—and 1886 is a long time ago—Until that Act came into force, on January 1st 1886, the criminal law was not concerned with alleged indecencies between grown-up men committed in private. Everyone knew that such things took place, but the law only punished acts against public decency and conduct tending to the corruption of youth. The Bill in question, entitled, 'A Bill to make further provisions for the protection of women and girls, the suppression of brothels and other purposes', was introduced and passed by the House of Lords without any reference to indecency between males. In the Commons, after a second reading without comment, it was referred to a committee of the whole House. In committee Mr. Labouchère moved to insert in the Bill the clause which ultimately became section 11 of the Act, creating the new offence of indecency between male persons in public or private. Such conduct in public was, and always has been, punishable at common law. There was no discussion except that one member asked the Speaker whether it was in order to introduce at that stage a clause dealing with a totally different class of offence to that against which the Bill was directed. The Speaker having ruled that anything could be introduced by leave of the House, the clause was agreed to without further discussion, the only amendment moved being one by Sir Henry James with the object of increasing the maximum punishment from 12 to 24 months, which was also agreed to without discussion.It is doubtful whether the House fully appreciated that the words 'in public or private' in the new clause had completely altered the law; but as soon as the Royal Assent had been given and the Act was published, there began a spate of correspondence in the newspapers, both legal and lay, 1849 and references to the subject on various public platforms, which were duly reported. A learned Recorder dubbed it 'The Blackmailer's Charter', and an eminent Q.C. prophesied that juries would refuse to convict where the alleged acts were in private and not visible to any member of the public. On the other hand those interested in the welfare of girls welcomed the Act as a whole so warmly (and indeed it was an excellent Act apart from section 11), and it was so clearly impossible to do anything except let the law take its course, that after a few weeks the clamour died down and the public interest became centred upon some more savoury topic".It is on that, which I regard as a devastating article, that I base the whole of my activities on behalf of the Wolfenden Report, and their reform of the law. When one realises how this law came into being, it seems pretty good nonsense to talk, as some noble Lords have today, of the surreptitious means by which it has been passed through Parliament. This House gave long consideration to my Bill. I am perfectly prepared—and, I never thought that it was unreasonable—to accept the amendment of the noble Earl, Lord Selkirk. The noble Lord, Lord Ross of Marnock, knows as well as I that it is practically impossible to get a Private Member's Bill through the House of Commons unless you are extremely lucky—you have to be lucky in the ballot. I think that there are five a year; I never had one passed. This was the only Bill that I ever introduced. Now I see it in jeopardy. I do not want it to be in jeopardy and I am prepared to agree to any reasonable amendment. If your Lordships—having passed this Bill by a large majority, having given a lead to the Commons, the Commons having accepted that lead by an equally large majority—chuck the Bill back in their faces, it would be a tragedy for this country and do no one any good.
§ Lord ROBERTSON of OAKRIDGE
My Lords, I do not want to offer any view on the principle of the clause or, indeed, on Scottish opinion on it; I am not qualified to do so. On the procedural question, I have one remark to make, which is that if no less a person than the right honourable Secretary of State was under the impression that the debate concerned merely a carbon copy of the English Act, then there is a case for asking the other place to look once more at the clause.
I should like to raise one matter of detail where there appears to be an 1850 apparent difference between the English Act of 1967 and the clause under debate. That concerns the protection of children, which seems to be one of the most important aspects of the matter. It is important not only because there are individuals who may be led to have sexual gratification with young children, but also because there exists at least one organisation which actively supports people who would want to do that. The difference is that in the 1967 Act additional penalties are provided where the other person concerned is under 16 years of age. This is not the case in subsection (9) of the clause.
I should be very grateful if, when the Minister answers this debate, he could give an assurance that this aspect of the matter has been studied and, if not, that it will be studied, to make certain that we are not withdrawing protection under Scottish law for children who might be at very serious risk.
§ Lord MONSON
My Lords, as the noble Lord, Lord Ferrier, suggested that I had misled your Lordships in citing the Division that took place in June 1977 on Lord Boothby's Bill, may I comment briefly on what he said. It is perfectly true that the Division did not take place on Second Reading, but it did take place upon an amendment which was effectively a wrecking amendment: if the amendment had been carried, the Bill could not have received a Second Reading. Following that Division the Bill received an unopposed Second Reading.
It is worth noting that 94 per cent. of Labour Peers present effectively voted for Second Reading as did 89 per cent. of the Independents, 100 per cent. of the Liberals and 60 per cent of the Conservatives, including a former Conservative Prime Minister, himself a Scot.
I submit that those of us who believe in individual freedom, especially where strictly private activity is concerned, and who want, therefore, to bring the laws throughout the United Kingdom into line with the laws that prevail on this matter in virtually every other civilised country, do not have to justify ourselves. It is for those who wish to retain archaic and draconian laws, which have almost disappeared from the statute books of every other Western country, to make out a convincing case for doing so. I do not 1851 think that they have made out such a case and I hope, therefore, that your Lordships will reject the amendment.
§ Lord DRUMALBYN
My Lords, we are talking about whether the clause should be retained in the Bill. We are not talking about the past. We must have regard to recent experience. I listened with great interest and, as always, with admiration to the speech of Lord Shackleton. He said that it is difficult to get this kind of Bill through by way of Private Members' Bills. Was not this Bill too important a Bill to go through by that means?
The noble Lord went on to mention that successive Lords Advocate have said that they will never enforce the present law. Lords Advocate do not last for ever, and circumstances could change in Scotland now to the point where the policy of the Lord Advocate would change. After all, even under the English 1967 Act there are certain things that are left entirely to the decision of the Director of Public Prosecutions.
One has to answer the right questions. It seems to me that one of the right questions is whether the passage of this clause will increase the practice of homosexuality. The second question is whether the clause has the support of the Scottish people. If we take the second question first, there is no evidence that it has the support of the Scottish people. From one's own private conversations the contrary appears very strong, and not least because those who read the national newspapers and other newspapers are finding more and more references to the propagation of abnormality.
If we remove the legal deterrent, we are bound to increase the practice. Someone has said today that that was foreseen by Lord Wolfenden's Committee. The noble Lord thought that it would happen and it is happening as far as one can see. There has been a proliferation of clubs, magazines and all sorts of thing that cannot fail to increase the practice of homosexuality in England and Wales.
One perhaps would not mind so much the lack of any indication of support from Scotland if there were a change if it were not for the fact that things appear to be going wrong in England at present. 1852 I entirely agree with the noble Lord that in circumstances of that sort it would be right to have an inquiry to ascertain what is going on in England and how the 1967 Act is turning out.
The English are a very tolerant people, but for prudent people there is a limit to tolerance. I am not clear that we are not reaching that limit in England at the present time. I know that there are other Acts that can be invoked. However, the fact remains that we probably need a battery of Acts if we are really to combat this sort of thing. For my part, I would regard the inclusion of sodomy in the Bill with the very greatest misgiving. I do not see why that should be included in a Scottish Bill merely because it is included in an English Bill, even if a compassionate view is taken of other forms of offence.
If anyone challenges my allegation that things are getting worse in England, let us have an inquiry to solve it. In my view, it is an abuse of parliamentary procedure to rush in legislation at the tail end of an extremely long Session. It is an abuse of procedure to pop in the clause—curiously enough, it was popped in at the front and now it is well down the line—and even if that were justified by the circumstances, or alleged to be so justified, that is something that would have to be clearly shown. I do not believe that it has been clearly shown that it is justified by the circumstances at present.
I voted in favour of Lord Boothby's Bill on Second Reading largely for procedural reasons and because I did not think that that Bill ought not to be discussed. In view of the change of circumstances and the lack of support in Scotland for this, I am inclined to join with those who would throw out the clause.
§ Lord McCLUSKEY
With the leave of the House, the noble Lord said that there is no evidence that this reform has the support of the Scottish people. Does he say that there is no evidence that the practice of successive Lords Advocate in not prosecuting this crime has had the support of the Scottish people? If there is no such evidence, does he suggest that the Lord Advocate, or the next Lord Advocate, should start prosecuting the crime that is covered by this clause?
§ Lord DRUMALBYN
I think that the noble and learned Lord's questions are not relevant to the issues that we are discussing. There is no evidence that the Scottish people are behind this. However, there can be no doubt that people in Scotland know that it is against the law. That has a great deterrent effect.
§ Lord HUGHES
My Lords, I have spoken on this subject once in your Lordships' House and that was on Second Reading on Lord Boothby's Bill. The view that I shall express tonight is the one that I then expressed in justifying my support for the Bill's Second Reading. At that time there was a fair amount of criticism being voiced in the country about the extent to which sections of the population were choosing the pieces of legislation that they were prepared to accept. At that time strong support was being expressed for the concept that Acts passed by Parliament which were not acceptable to some people should be ignored. Local authorities were being encouraged to ignore pieces of legislation.
I expressed the view then that it was inappropriate that the principal Law Officer in Scotland should be joining that type of person in saying, "Here is the law of Scotland, but I am not going to enforce it."
I am not certain whether that attitude of Lords Advocate arose only when the English Act was passed. I have the feeling when Lords Advocate were acting in that way even before the English law was changed. But I am not certain on that point. It has been stated quite definitely that four successive Lords Advocate have acted on the basis that they will not enforce the law. If a law is not to be enforced by those who have responsibility for enforcing the law, surely that is the best possible argument for changing the law. The real difficulty is not that Lords Advocate will continue to do so but, as the noble Lord, Lord Drumalbyn, said Lords Advocate are not there forever and another Lord Advocate might change the practice.
My noble friend Lord Shackleton referred to the practice when he said, "A law which is not enforced and is never going to be enforced". In the first part of that statement he is correct; in the second part of the statement he may prove to be totally 1854 wrong. It seems to me to be quite wrong that what is done in this matter in Scotland should depend on the whim of a particular Minister. I do not know what the present Lord Advocate's view is on these matters, whether he would take the same view as his predecessors and not enforce the law. I know even less of what would be the view of the next Lord Advocate, but it is not beyond the bounds of possibility that we could have someone becoming Lord Advocate who held the view as sincerely as Lord Advocate as the noble Earl, Lord Lauderdale, has held, in which case the law of Scotland would be changed overnight in its enforcement, not in its enactment. For that reason it seems to me that what we have been indulging in in Scotland since the English law was changed is hypocrisy. We have sheltered behind the willingness of Lord Advocates to act as thought the law had been changed. If that is a desirable way for things to be done, I suggest that the law ought to be changed.
I would put a further point. I want to go back to what the noble Earl, Lord Selkirk, said—and I was rather surprised at the literature which he apparently reads when he quoted from Gay News, but I am not suggesting that it is his normal bedtime reading—when he quoted the statement that if the law was changed in the form in which it came to us from the Commons it could make orgies permissible. What we do not know at the present time is whether orgies are permitted in Scotland, because the Lord Advocate does not give a list of the cases which he has not prosecuted. If the Bill remains as it is at the present time there is a limit on what will be permitted in Scotland. It will be not more than two consenting adults in private. Can anyone say whether previous Lord Advocates have refused to prosecute in cases where there were five consenting adults in private, or eight consenting adults in private? I doubt very much whether anyone is in a position to say what took place.
For that reason what is now in this Bill makes the position in Scotland absolutely clear. I know one thing; if your Lordships accept the Commons amendment as it has now been changed by your Lordships, the Lord Advocate will not be in a position to say, "I am not going to enforce the law. I will not prosecute where more than two consenting adults 1855 have acted in private." The law will be brought into a position where it has to be enforced, and it seems to me that that is a much more satisfactory position than what we have tolerated for the last 13 years.
§ 6.13 p.m.
§ Lord WILSON of LANGSIDE
My Lords, I rise with the greatest reluctance because I find it difficult to believe that I can find anything new to say on this subject, but let me just try. I can understand the anxieties of the noble Earl, Lord Lauderdale, and the noble Lords, Lord Galpern and Lord Drumalbyn, as to the procedure which has been followed which brings this clause before your Lordships now. But when one looks at the history of this wretched matter since the Labouchère amendment, which is the cause of it all over 100 years ago, it is surely stretching things a little to suggest, as the noble Lord, Lord Drumalbyn, did, that it was an abuse of parliamentary privilege to try to put the matter right in this way now.
§ Lord WILSON of LANGSIDE
My Lords, I apologise, but subject to that correction I hope that your Lordships will take my point. I hope that your Lordships will reflect carefully on what particularly the noble and learned Lord, Lord McCluskey, and the noble Lord, Lord Shackleton, have said on this matter. What will happen if your Lordships decide, because of your reservations on the procedural aspect of the matter, that this shall not become the law? We shall go on discussing it here and elsewhere to the acute boredom of many of us. The thing will go on just as it has always done.
I, like the noble Lord, Lord Ross, think there are many aspects of Scots Law which we should preserve different from those of England but the history of this matter does not suggest that this is one of these. That is all I am saying now. What will happen will be that we shall go on talking and having further debates when we should find more important things to talk about in this House and elsewhere, and eventually the law of Scotland will be brought into line with the law of England. 1856 Whatever our reservations on these other aspects, might it not be better for us to do it tonight?
§ 6.17 p.m.
§ Lord FOOT
My Lords, I do not want to prolong this debate for a minute longer than it need last. Indeed, I am anxious that we should get to a Division if we are going to have a Division at all. Everything that can be usefully said on the subject has already been said. I am not going to say anything about the merits of the matter because that has already been most admirably said by the noble Lords, Lord Shackleton and Lord Boothby. I have nothing to add to that.
When it comes to the argument which has taken place this afternoon, the substance of the main argument has been advanced by the noble Earl, Lord Lauderdale, and the people who have supported him, is that there has not been adequate discussion, and that this is being pushed through in a way which is unbecoming to this House and to Parliament. That surely is the most artificial of all criticisms that could be levelled. The fact is that the problem of homosexuality has been a matter of public discussion not only in England and Wales, but in Scotland and Northern Ireland for that matter, ever since we have had the Wolfenden Report. It has been a subject of fierce controversy and discussion throughout the whole of the realm over the last 13 years since the passing of the Act in this Parliament. Therefore, to pretend that something suddenly happened last July, that somebody has slipped something into the House of Commons which had never been thought of in Scotland and never discussed, is surely carrying the argument to the point of complete artificiality.
During that same 13 years while this public discussion has been going on and the debate has been going on, there has also been this continuing scandal that successive Lords Advocate have decided not to enforce the criminal law of Scotland as it has stood. Why have they failed to do it? Why have they refrained from enforcing the law which is their clear and constitutional duty? They have refrained from doing it because it would be near to obscene to have people sent into prison North of the Border for doing something which people can do South of the Border with impunity. That is the 1857 reason why they have done it—because it is outrageous that we should treat people on basic matters of human rights in a fashion like that. That is the reason why it has happened.
May I say to the noble Lord, Lord Drumalbyn, that nothing more extraordinary has been said in the course of this debate than when he said that Lords Advocate do not go on forever. He was apparently suggesting that there might be a future Lord Advocate who would suddenly decide to enforce the law of Scotland. Is that something that he is recommending? Is it right that whether people go to prison for committing a so-called homosexual act should depend upon the caprice of the Lord Advocate in Scotland? Should it depend upon the purely arbitrary decision, the prejudices—they might be the prejudices of the noble Earl, Lord Lauderdale? Are the rights of subjects to be at the risk of the prejudice of a particular Lord Advocate at any particular time?
My Lords, I have said quite enough about it. I only intervened in this discussion because I certainly thought that we ought not to conclude the debate without some word being said about the view which is taken by my noble friends and myself. I hope we can get very quickly to a Division and get this issue out of the way, because the last thing I have to say is this: this debate this afternoon is an exercise in futility. If we were to throw out this amendment and it goes back to the House of Commons, they will put it back again, so there is nothing to be gained; and I would suggest that some of the speeches made in the House this afternoon have not brought particular credit upon it.
§ Lord GALPERN
Before the noble Lord sits down, I wonder whether we could ask, in view of what he has just said, whether he and his party will now bring forward without any delay a similar Bill for Northern Ireland?
§ 6.23 p.m.
§ Lord ROSS of MARNOCK
I can remember that we get into an awful mess in respect of Private Members' Bills when (a) we include Scotland and (b) when we do not include Scotland, because the laws are different on each side of the border. Dare I mention something called abortion? Scotland was wished into that Private Member's Bill, but the law in Scotland in relation to abortion was very different from the law in England and I sure that the noble and learned Lord the Lord Advocate will agree with me, not by his whims, but because the Bourne case that created the fuss in England could never have happened under the law of Scotland.
We discussed the Shops Acts, and we discovered that the Shops Acts do not apply to Scotland, for the simple reason that Scotland was such a Presbyterian country that they would never dream of opening the shops on Sunday in Scotland. I can assure your Lordships that the shops are all open now and they do not need any great permission unless there are local by-laws preventing them, for the simple reason that traditions are different.
In relation to this, I recognise that the one great dilemma in this is the fact that the law is there and is not being applied. That is the one big dilemma. I have not made up my mind yet. I think we have a responsibility as a House, Governments have responsibility, the Commons have a responsibility, for the social wellbeing and health of the nation and we have to try and judge what will be the effect of passing this provision if we allow it to go forward? Will it be to the benefit of not just the minority but the whole community?
The noble Lord, spoke about the question of children. The people who are at the most danger from the proselytising attack that goes on by this minority—and they are very articulate—are the young people. We hear about young people coming down from Scotland to London and being picked up and exploited in this way. So I would be better satisfied if we had indications of the activities of the police from the point of view of protection in respect of this.
The other point that worries me slightly is this—and I am sorry that I am as much to blame as anyone else, but I have certain preoccupations and this is where the 1859 question of hurry comes into it. This is brought in at the tail end of a Session when we have got all sorts of other Bills that we should be, and are, attending to. To read all this up and get the right amendments down is something we are not being given time to deal with. There is the question of defence. Under the English law the prosecution has only to prove that one of the parties was under 21 and that is enough. It is the very opposite in the Scottish clause that we have before us: it will be an offence for someone who is being charged that he had reasonable doubts about the fact that the person was under 21. I would like that to have been cleared up.
I can tell the noble Earl, Lord Lauderdale, that he nearly talked me out of complete sympathy with his point of view. I do not think it is right to condemn somebody for doing what Governments have done, introduce clauses that have not been debated in Committee or Report. I think he went a bit far, and I was very glad he was asked to withdraw, and did withdraw, his remarks about Mr. Robert Cook. I still think it is wrong for such provisions to be introduced so late and, with all due respect to the noble Lord, Lord Boothby, I have not been aware of any great public discussion in Scotland about it. I am perfectly sure that the great majority of the people in Scotland will not know we were discussing it until they hear it tomorrow morning, or late tonight in "Today in Parliament".
I come back to the one big problem, and that is how can we live with this business of having a law and yet it being stated that that law cannot be applied. If I could be reasonably assured that certainly if this was passed that law would be applied, and would be applied with vigour, to safeguard our young people, then I would be prepared to let it go. So I am waiting to hear what the Scottish Minister has to say before I can fully make up my mind about it.
§ Lord TAYLOR of GRYFE
A great deal has been said about the view of the Scottish people, and if the view of the Scottish people is to be interpreted in terms of the number of contributions in this House in favour of or against the clause it would suggest that the Scottish people are opposed. Apart from the 1860 intervention of the noble Lord, Lord McCluskey, and the noble Lord, Lord Wilson of Langside, there has been a fairly strong opposition as representing the view of the Scottish people.
I have no doubt, to answer the question of the noble Lord, Lord Drumalbyn, that if a vote or a referendum were to be taken in Scotland, such is the prejudice and such is the emotion aroused by this issue that there might be a majority against this clause. But there are occasions when the rights of minorities have to be respected, and it is part of the democratic tradition that certain rights of minorities and certain freedoms of minority groups have to be respected, even while the majority are against them. The homesexuals of this world are a sad and a sick people.
§ Lord TAYLOR of GRYFE
Well, they are sad. They are sad and they are misfits in our community, and there are occasions where we have to provide with sympathy and understanding for these misfits.
There is protection in the clause, in so far as it refers only to consenting adults. We are not talking about the corrupton of young people. We are not talking about people who drift to London and are corrupted illegally by various people. We are talking, as the noble Lord, Lord Ross of Marnock, said, about bringing the law of Scotland into consistency with the law of England and making it sensible for the Lord Advocate to apply that law. For that reason, I suggest we think with sympathy and without prejudice about this matter and that we permit this clause to be operated so that the law may operate with sense and understanding.
§ Lord DONALDSON of KINGS-BRIDGE
My Lords, we all want to hear the Minister, so I will not detain the House. As a heterosexual who lives in England, I find it difficult to vote on this issue, though if I lived in Scotland I should not have the slightest hesitation in opposing the noble Earl's amendment and supporting my noble and learned friend Lord McCluskey. Are English Peers going to vote on this or not? If they are, I shall stay and vote, but I 1861 believe there is a strong case for saying that the Scots should not have something forced on them, nor should the Northern Irish. I am therefore a little puzzled and perhaps the Minister will give his view because he at least lives north of the border.
§ Lord SHACKLETON
My Lords, I hope my noble friend realises that what he is proposing is quite unconstitutional.
§ The Earl of MANSFIELD
My Lords, it may be that the House will now want to determine this matter. To take the point made by the noble Lord, Lord Donaldson, first, this is the Parliament of the United Kingdom, and in spite of my funny-sounding title, my peerage is that of Great Britain and I certainly intend to vote. I hope all noble Lords will exercise their right, otherwise there is little purpose in them being here.
The history of this matter has been well canvassed. Your Lordships have been told of the amendment which was removed on Report in another place by the honourable Member for Edinburgh Central, who was supported in his contentions by a number of other Members. I think it is right to say that the argument in the other place rested on two main considerations. The first was that it was a matter of anomaly that there should be different laws on a matter of very considerable importance on each side of the border. The second was that it did not create respect for the law to have legislation on the statute book in Scotland which by administrative decision was not enforced, and as the noble and learned Lord, Lord McCluskey, said, successive Lords Advocate have publicly stated that it is not their policy to prosecute cases of homosexual acts in private between two consenting adults.
If I have a quarrel, it is with the noble Lord, Lord Foot. I do not think Lords Advocate of either party act on whims. That is at the very least a gross discourtesy to an honourable and ancient Scottish office. They administer the law and it has been well settled for a considerable time how in fact this particular part of the law is to be administered. It is of course a matter for the Lord Advocate, 1862 as it is his responsibility over all criminal prosecutions, to decide, where there is evidence, whether there is what amounts to corroboration and, if it is necessary in a particular case, whether the law is going to be enforced if there are more than two adults, and so on.
I come to the Government's position in this; there might have been some confusion but I do not think there was. In the other place, my right honourable friend the Secretary of State made it plain that he deprecated the introduction of what is a fundamental change in the law of Scotland at a late stage in the progress of a Government Bill at a comparatively late time of the parliamentary Session, this at a time when there is no doubt that there is strong and divided opinion in Scotland. He said the amendment as proposed was not defective, and I am sure he meant that, and I am equally sure that in the somewhat narrow context of those words he was right. He was uneasy at the way in which the amendment was introduced—without there being, as he thought, enough time for debate and enough time to take consultations—and if I may say so, that unease has been amply proved to be right because, as I said to your Lordships at an earlier stage, the amendment which purported to bring the law of Scotland in line with the law of England in fact did no such thing.
It would have permitted acts between more than two consenting adults and there was an argument at least—I do not put it any higher than that—for saying that those acts could have taken place in a public lavatory. So, in spite of the fact, that this matter has been looked at, not least by your Lordships, the effect of the vote in the other place was that if it had not been for the fact that we had a second revising Chamber, there would have been passed, I am sure in all good faith, a measure which would have put the law of Scotland on quite a different plane from the law of England.
It is for those reasons—if I may speak personally for just two sentences—I deprecate this particular amendment. My second sentence on this personal level is that on the basis that it is really too much in this matter to have two speeches from the Government Front Bench, my noble and learned friend the Lord Advocate has asked me to say that on this basis, 1863 as I have said, he also considers it is not appropriate that such an amendment should be introduced in the way in which this one has been.
§ Lord ROSS of MARNOCK
My Lords, may I ask the Minister to be absolutely clear on this, because we are after all dealing with a Lords Amendment, an amendment put forward by the noble Earl, Lord Lauderdale? May I ask the Minister to make clear whether he is for the Commons amendment; or was he talking about the noble Earl's amendment?
§ The Earl of MANSFIELD
I am obliged to the noble Lord, my Lords, lest there be any dubiety about this. I thought my noble friend was moving a Motion to disagree with the Commons amendment. I am saying that I think the amendment as it came from the Commons was inappropriate, and that is what my noble and learned friend says too, if I may paraphrase his thoughts on the subject. The Government allowed a free vote, as will happen tonight if it comes to it in your Lordships' House. In the other place the result was a decisive majority, by 203 votes to 80, in favour of the new clause. I think that where there has been such a decisive majority for something among the elected Members of Parliament, this House would naturally think twice before taking, any action, as it were, to disturb that decision. As against that, because the amendment of the noble and learned Lord, Lord Fraser, has been accepted by your Lordships, the matter will have to go to the other place again in any event, so that whatever is the result of the Motion moved by my noble friend Lord Lauderdale, it will have to go back to the other House anyway.
Since that vote, my ministerial colleagues and I have received well over 100 letters and a number of petitions expressing opposition to the change in the law proposed by the new clause. I will not comment on the merits of those objections. I merely say that we have received them, and I think that we are hound to accord respect, at any rate, to sincerely-held views.
I also point out that there have been very few representations in favour of the new clause, but it must be fair to point out 1864 that in this area it is much more usual to receive representations from people who object than it is to receive them from those who support. I am merely telling your Lordships of the facts, and am not really wishing to comment on them too much. It is also fair to say that over the years there has been a steady flow of representations to the Scottish Office calling for what nowadays is called the decriminalisation of private homosexual acts between consenting adults. So I think it is fair to say that, probably as in England, public opinion in Scotland is strongly divided on this issue.
As I have said, and as your Lordships know, the new clause was in fact based on the measure which was introduced by the noble Lord, Lord Boothby; and that Bill completed its stages in this House but ran out of time. I was asked a number of questions. I think the noble Lord, Lord Robertson, and certainly the noble Lord, Lord Ross, were concerned about the position of young persons. What I can say about that is that, by the introduction of this amendment, young persons will not be put in any jeopardy, or (shall I say?) in no greater jeopardy than they were before. The reason I say that is that, although this new clause imposes, as it were, a statutory licence in the case of homosexual offences, the common law of Scotland is affected only as is provided in subsection (1). Therefore, it will be perfectly possible, and indeed it will no doubt happen, that if there are homosexual acts which involve those under the age of 21 (or, still more seriously, young persons) then there are offences under the common law of Scotland which are well able to deal with them.
The next matter which I think one or two noble Lords touched on was the question of penalties. I do not know whether it has been said, but I am going to say that the terms of imprisonment contained in subsection (11) of the new clause purport to make the maximum term of imprisonment on indictment a year less than it is in England; that is to say, two years instead of three. I think it is fair to point out that it will be perfectly possible to bring criminal proceedings in Scotland under the common law whether or not this new clause exists, and very much greater penalties exist under the common law. So in an appropriate 1865 situation, where there is what I might call a bad case, I have no doubt that proceedings would be brought, not under subsection (6)(c), for instance, but under the common law. So I do not criticise the proposed new clause on that ground.
I was asked by my noble friend Lord Drumalbyn to review, as it were, the progress (if that is the word) of the legislation in England since 1967. I think it would be very rash if a Minister of the Scottish Office attempted to do anything of the sort, but what I can say to your Lordships is that we have had no representations in the Scottish Office to the effect that the legislation in England has in any way been uncertain or unsatisfactory. I am bound to point that out.
I do not think that I can say any more which is helpful. I am not going to enter into any debate on the merits of the proposal, the history of the matter, Wolfenden and so on, but what I do say to your Lordships is that so far as this clause is concerned, the Government do not propose to depart from—I was going to say—the hallowed tradition of allowing a free vote on the issue.
§ The Earl of LAUDERDALE
My Lords, procedure allows the mover of this Motion the right of reply, but I shall be as brief as possible. First, I again apologise to the House, and through the House to the other place, if any words of mine were thought to mean that I was criticising the good faith or the judgment of any Member of either House. What I was referring to was the pressures behind them; which brings me to the question of whether matters are better or worse in this whole area since the 1967 Act.
§ The Library here now has an interesting reference book which lists pressure groups operating on behalf of various interests. I find that since the 1967 Act some eight pressure groups have formed themselves in order to advance homosexual propaganda, including paedophilia. So I think it is fair to say that the situation has greatly changed since 1967. My noble friend Lord Mansfield has again damned with faint praise—very faint praise—the amendment which has come from another place. He has confirmed that Scottish opinion is at least greatly divided, and he leads one to suppose that, if it is greatly divided, then it is not greatly clamouring for this particular change.
§ Those who say it is absurd to have a law which is not enforced have much common sense on their side, and I personally think that this argument is the most powerful of all the arguments. But against that I would put it to your Lordships that there is much to be said for having simply a declaratory law about right and wrong. That declaratory law has been a deterrent to the spread of this particular practice; and I would only ask your Lordships to forget my exaggerations of language, to accept sincerity of purpose, as we all do from one another, and to vote according to the conscience that we each have in the innermost tabernacle of our soul.
§ 6.48 p.m.
§ On Question, Whether this House doth disagree with the Commons in their Amendment No. 101, as amended?
§ Their Lordships divided: Contents, 48; Not-Contents, 59.1867
|Avon, E.||Gormanston, V.||Mottistone, L.|
|Beswick, L.||Gray, L.||Netherthorpe, L.|
|Birdwood, L.||Keyes, L.||Newall, L.|
|Brougham and Vaux, L.||Kimberley, E.||Orkney, E.|
|Cathcart, E.||Kinloss, Ly.||Robertson of Oakridge, L. [Teller.]|
|Chesham, L.||Lauderdale, E.|
|Cottesloe, L.||Linlithgow, M.||Saint Oswald, L.|
|Craigmyle, L.||Listowel, E.||Sandys, L.|
|Cullen of Ashbourne, L.||Liverpool, E.||Spens, L.|
|Donegall, M.||Long, V.||Strathclyde, L.|
|Drumalbyn, L.||Loudoun, C.||Swansea, L.|
|Ellenborough, L.||Lyell, L.||Swinfen, L.|
|Falkland, V.||Mackay of Clashfern, L.||Trefgarne, L.|
|Ferrers, E.||Mancroft, L.||Vaux of Harrowden, L.|
|Ferrier, L. [Teller.]||Mansfield, F.||Vivian, L.|
|Freyberg, L.||Morris, L.||Westbury, L.|
|Abinger, L.||Hale, L.||Segal, L.|
|Adeane, L.||Harmar-Nicholls, L.||Selkirk, E.|
|Ardwick, L.||Howie of Troon, L.||Shackleton, L.|
|Avebury, L.||Hughes, L.||Stamp, L.|
|Balogh, L.||Hylton, L.||Stedman, B.|
|Banks, L.||Hylton-Foster, B.||Stewart of Fulham, L.|
|Beaumont of Whitley, L.||Jeger, B.||Stone, L.|
|Blease, L.||Killearn, L.||Strabolgi, L. [Teller.]|
|Boothby, L.||Kilmarnock, L.||Taylor of Gryfe, L.|
|Colville, of Culross, V.||Kirkhill, L.||Taylor of Mansfield, L.|
|David, B. [Teller.]||Llewelyn-Davies of Hastoe, B.||Teviot, L.|
|Davies of Leek, L.||McCluskey, L.||Thurso, V.|
|Donaldson of Kingsbridge, L.||McGregor of Durris, L.||Underhill, L.|
|Elliot of Harwood, B.||Marley, L.||White, B.|
|Foot, L.||Mishcon, L.||Wigoder, L.|
|Fortescue, E.||Monson, L.||Wilson of Langside, L.|
|Gaitskell, B.||Mount Edgcumbe, E.||Wilson of Radcliffe, L.|
|Glenamara, L.||Perth, E.||Winterbottom, L.|
|Greenwood of Rossendale, L.||Phillips, B.||Wynne-Jones, L.|
|Gregson, L.||Ritchie-Calder, L.|
On Question, Motion agreed to.
§ 6.55 p.m.