§ 3.39 p.m.
§ The Earl of Gowrie rose to move, That the draft order laid before the House on 14th July be approved.
§ The noble Earl said: My Lords, the effect of this order will be to legalise private homosexual acts between consenting adults in Northern Ireland, thus bringing the law in Northern Ireland into line with that in England and Wales and, broadly, with that in Scotland. I am sure that a number of your Lordships will recall the debates in 1966 on the Bill introduced by my noble kinsman, Lord Arran, which was later to become the Sexual Offences Act 1967 and which changed the law on homosexual offences in England and Wales.
§ It might be helpful to the House if I briefly sketched the background to this order. In July 1976 the then Secretary of State for Northern Ireland undertook to consider whether to legislate to bring Northern Ireland law more closely into harmony with laws in other parts 413 of the United Kingdom, for example in the area of homosexuality. He invited the Standing Advisory Commission on Human Rights to consider the question of amending the law relating to homosexuality in Northern Ireland, and in due course that commission recommended that the law in Northern Ireland should be brought into line with the Sexual Offences Act of 1967. A proposal for a draft Homosexual Offences Order was published therefore in July 1978 and during the ensuing three months' consultation a certain amount of fur flew.
§ Strong views, both for and against changing the law, were expressed by churches, politicians, and a range of religious and political organisations, professional bodies, voluntary organisations and individuals. It was clear that opposition to the proposed order was very strong, and the then Government chose not to proceed with it at that time. When the present Administration took office in 1979, we too chose to leave the position unchanged. In 1976 a Mr. Dudgeon, living in Northern Ireland, complained to the European Commission of Human Rights that the Northern Ireland law on homosexual offences was in breach of Articles 8 and 14 of the European Convention on Human Rights.
§ The two articles in question deal with the right to respect for private life and to freedom from discrimination. The commission concluded that the law in Northern Ireland breached Article 8 but that there was no need to examine the case under Article 14. The case was then referred to the European Court of Human Rights who, while taking into account the argument put forward by Her Majesty's Government that the existing law in Northern Ireland was justified by the great and particular emphasis placed on religious and moral factors in relation to the law on social matters, decided that there was not sufficient reason for the interference with private life entailed in the present law in Northern Ireland. The court accordingly issued their judgment on 22nd October last year that the law in Northern Ireland breaches Article 8 of the European Convention on Human Rights.
§ The Government are therefore put in no doubt that the United Kingdom must abide by the court's judgment in this case, since by signing and ratifying the convention they have undertaken to abide by the court's decision in any case to which they are a party. Not to do so would be to fail altogether to fulfil our international obligations. The Government therefore published, on 18th March this year, a proposal for a draft Homosexual Offences Order which would make the changes in the law necessary to comply with the court's ruling. A consultation period of six weeks followed, during which comments were received from various organisations and political parties. However, all the suggestions made by these bodies would have created inconsistencies with the law on homosexual offences in England and Wales, whereas what is required to rectify the breach of Article 8 of the European Convention is legislation bringing Northern Ireland into line with England and Wales. To have made the Northern Ireland provisions more restrictive might have left the Government in a position where we had not fully rectified the breach and indeed had compounded our offence. Thus it has not been possible to include any changes recommend- 414 ded during that consultation period. It fell to my office and my responsibility to receive these consultations. I can say, looking back, that some Ministers draw unhappy cards from time to time.
§ There are, however, three minor technical changes which have been made to the draft order as a result of further scrutiny since its publication as a proposal. These are an amendment to Article 11(2), making it clear that it is not necessary to obtain leave of the Director of Public Prosecutions under Article 11(1) in the case of proceedings under Section 22 of the Children and Young Persons Act (Northern Ireland) 1968 which deals with indecent conduct towards children, and two additions to the schedule of the order, detailing consequential amendments to that Act.
§ May I now summarise briefly the main provisions of the draft order before the House. Article 3 contains the main change to the existing law: a homosexual act in private between two consenting men over 21 years of age will cease to be an offence. However, an exception is made in paragraph 4 of the article for servicemen, for whom homosexual acts will still he offences under the service Acts. Under paragraph 3 of Article 3 it will not be possible for a mentally handicapped person validly to consent to a homosexual act. Article 4 amends the Mental Health Act (Northern Ireland) 1961 so as to provide protection for men receiving treatment for mental disorder in a hospital against homosexual acts by any male member of the hospital staff, and also for mentally disordered men cared for under other guardianship arrangements.
§ Under Article 5 a homosexual act on a United Kingdom merchant ship between members of the crew of that or of any other United Kingdom merchant ship will continue to be an offence, as now. Article 6 sets out revised penalities for those homosexual acts which will continue to be offences. These penalties will be the same as for similar offences in England and Wales, and include an increase in the existing Northern Ireland penalty for gross indecency by a man over 21 with another man who is under 21.
§ Article 7 provides that it will continue to be an offence to procure a man to commit a homosexual act with a third man, even though the act itself may be legal. Under Article 8 it will be illegal for anyone knowingly to live on the earnings of male prostitution. Article 9 provides that premises used for lewd homosexual practices shall be dealt with as brothels.
§ Articles 10, 11, 12 and 13 deal with the time limits for prosecutions, the procedure for prosecutions when a man under 21 years old is involved, the mode of trial and arrangements for prosecutions which may be pending. Under Article 10 it will not be possible for proceedings to be commenced more than a year after the offence, unless a the offence involved a boy under 16. That has obvious implications for the crime of blackmail.
§ Article 11 will protect young people from unnecessary exposure to court proceedings. Article 14 and the schedule deal with consequential amendments to existing legislation.
§ In sum, we believe that this order, by bringing the law on homosexual offences in Northern Ireland into line with that in the rest of the United Kingdom, will make the minimum changes needed to enable the United Kingdom to comply with the ruling of the 415 European Court of Human Rights and thus to meet our international obligations. I hope and believe that many noble Lords will agree that the provisions contained in the order will not have the adverse effect feared by some on the moral fabric of Northern Ireland society. I commend the draft order to the House.
§ Moved, That the draft order laid before the House on 14th July be approved.—(The Earl of Gowrie.)
§ 3.48 p.m.
§ Lord Elystan-Morgan
My Lords, by its very nature this issue is one that cuts through party boundaries in many cases. Nevertheless, in supporting the order as I do I apprehend that I shall be speaking on behalf of the vast majority of my noble friends on these Benches.
The order deserves support both on its merits as well as on account of the decision of the European Court of Human Rights which was referred to by the noble Earl. Both the opinion of the Commission and the decision of the European Court were expressed in very substantial majorities. The Commission on 3rd March 1981, by a majority of nine votes to one, gave its legal opinion that there was a breach of Article 8, and the European Court on 22nd October of last year gave its verdict by 15 votes to four.
As the noble Earl has already said, the United Kingdom is a signatory of the convention and under Article 53 of that convention has bound itself to bring the laws of the United Kingdom into line where any decision of the European Court of Human Rights pointed to a breach. There is no compromise possible in this situation. Either we blatantly break our international obligations as a contracting party under that convention or we initiate legislation of this type to bring the law of Northern Ireland into line with the rest of the United Kingdom.
May I say a few words about the intrinsic merits of the case as I see them. I appreciate that there are very conflicting views, sincerely held and very robustly articulated, in Northern Ireland on this matter. It is not, after all, every day that the Roman Catholic Church, the Unionist Party and the Orange Lodges all find themselves in total amity on any particular issue. But the opponents of the order see this law as a provision that will have the effect of endorsing on the part of the Government homosexual practices, if not indeed encouraging them. I do not for a moment believe that is so. The issue, as I see it, is rather whether the criminal law should be used at all times to enforce the moral law, and particularly so in the circumstances of this case.
I venture to suggest to the House that there are two other factors which should be considered in relation to the general arguments. The first is this: in my submission, the order is nothing more than an endorsement of the status quo. The judgment of the European Court of Human Rights in the Dudgeon case makes it clear that between January 1972 and October 1980 there were in Northern Ireland 62 prosecutions for homosexuality. Most of them dealt with the position of young people under the age of 18. A few were mental patients and one or two were persons who were in custody. Not one of those cases dealt with a consenting male adult over the age of 21. I am sure that, although those figures go only as far as October 416 1980—I see the noble Earl nodding—he will confirm that there have been no such prosecutions from 1980 to date. The law therefore in Northern Ireland, in so far as it is different from that for the rest of the United Kingdom for consenting male homosexuals, is a dead letter and all this order does is to place the letter of the law into line with what has been the practice in Northern Ireland for the last 15 years.
Some will say that is an excellent argument for doing nothing and they will ask: why do anything at all? There are further considerations, are there not? First, there is the question of the guilt of the person who knows he is breaking the letter of the criminal law. Secondly, there is the question of possible blackmail. Thirdly, there is the prospect—remote but nevertheless real—of a private prosecution, and of course there would be no answer to such a prosecution while the law remains unamended.
The second consideration is this: as many Church leaders over the last 15 years in relation to this issue have pointed out, the criminal law does not run parallel with the moral law. I wonder how this House would view the suggestion if, in the next Session of Parliament, we were to legislate upon the seven deadly sins? How would it greet the Gluttony (House of Lords) Bill, the Avarice Bill or the Sloth Bill? I think I had better stop there.
Most certainly there has been, particularly in relation to sexual offences, a clear severance between the criminal law and moral law. Adultery, so far as I know, has never been a crime under secular law in Britain; nor indeed in this century has lesbianism ever been condemned by the criminal law. As a Member of another place, in 1967 I had a quite ambivalent attitude towards the Sexual Offences Bill in that year. On the other hand, I had been horrified on many occasions as a young lawyer in seeing the very harsh way in which male homosexuals were treated and the massive sentences that were passed upon them. Very often they were sent to prison with two or three in a cell, and it struck me, bearing in mind the ridicule and oppression they very often had to face, that it was almost like condemning a dipsomaniac to be sent to a brewery for some years.
Looking at that side of the situation, one was filled with compassion: but on the other hand I felt, as many did on that occasion, the fear—perhaps the naive fear—that one was opening the floodgates to what might be described almost as an alternative society. For that reason I abstained from voting at all stages of that legislation.
Looking at the situation now, 15 years later, it is clear that there never was any danger of the 1967 Act setting up any form of alternative society to the heterosexual society that the vast majority of us live in. The law in Scotland was changed some 2½ years ago and I have never heard a shred of evidence that there was in respect of Scotland any substantial social change in relation to this matter.
In my submission, therefore, the measure must be placed on the basis of a compassionate tolerance rather than on any question of slack permissiveness. It is right that the citizens of Northern Ireland should enjoy the same rights in this respect as the citizens of the United Kingdom. It is right also that we should place our law in line with stern international obligations.
§ 3.57 p.m.
§ Lord Foot
My Lords, I am in the happy position of agreeing with every word that the noble Lord, Lord Elystan-Morgan, has spoken. He started off by saying quite rightly that this was certainly not a party political issue. I was particularly glad that yesterday in the other place this was a matter of a free vote and there was no attempt to line up the political parties. Because it is not a party political matter, I speak today for myself rather than for my noble friends, but I suspect that the majority of my noble friends, like me, will welcome this order. Indeed some of us, including myself, believe that it is long overdue.
Over the last 15 years since the passing of the Sexual Offences Act of 1967 we have been living with an anomaly and with what I would suggest is a not very attractive anomaly. It arose in this way. The 1967 Act was passed after prolonged public debate and discussion; there was the Wolfenden Inquiry and Report, and years of discussion before that Act was put on the statute book, It meant that in future homosexual acts between consenting adults in private should no longer he a criminal offence. But of course that Act did not extend either to Scotland or to Northern Ireland, with the result that in Scotland and Northern Ireland—in Scotland up to 1980, when we put the matter right—for all those years, at any rate in theory, conduct of that kind between consenting adults was liable to what can be properly described as fearsome penalties under the law. The undesirability of that state of affairs, I think, was almost universally recognised and I say that for the reason which was explained by the noble Lord, Lord Elystan-Morgan, just now.
What, in fact, happened was that the Law Officers of Scotland decided—and they told us this at the time of the passing of the amendment to the Criminal Justice (Scotland) Act in 1980—that they would not authorise prosecutions of anyone who had not committed an offence under English law. That administrative decision to disregard, in effect, the law of the land in Scotland was, of course, itself a recognition that the anomaly was unacceptable; and the same thing occurred, as the noble Lord explanied, in Northern Ireland.
I would not myself dispute that there may be occasions when the special circumstances of one part of the United Kingdom justify some different treatment in the criminal law than in the other parts of the United Kingdom. I think that such circumstances can easily arise. They would, perhaps, justify differences of approach. Perhaps the most striking example of that is the way in which we have over the last few years suspended jury trial in Northern Ireland in certain cases because of the exceptional conditions that there obtain. But while, therefore, you obviously cannot lay it down as a fixed rule that there must be no difference in the criminal law in any part of the United Kingdom, what I find intolerable is that, in a basic matter affecting human behaviour, conduct which is permissible in one part of the United Kingdom should be liable to draconian penalties in another part. That is something which, as a matter of principle, I do not think can ever be justified.
Therefore, I welcome this order. It comes very late. I wish that the Government and the Minister had 418 defended it more upon its intrinsic merits. He explained to us, perfectly properly, how the Government have been forced into this position by the decision of the European Commission. But I would commend the order to the House on its own merits. It will cancel an anomaly which has endured for far too long. I only wish that the Government had been coming forward today with this proposal on its merits and not, as it were, at the behest of the European Commission. With that said, I welcome the order and I have not the least doubt that it will receive the approval of this House, as it received in the other place yesterday.
§ Lord Donaldson of Kingsbridge
My Lords, I studied this question in 1966 and made up my mind, and I have not the slightest intention of going through the arguments again. If I had it would be unnecessary, because I think that the noble Lord, Lord ElystanMorgan, put them admirably. So all I can say is that I am very glad that this moral decision which we made in 1966 should now be extended to Northern Ireland, to bring them into line with our own freedom in this country, and I have the greatest pleasure in supporting the order.
§ 4.4 p.m.
§ Lord Blease
My Lords, I rise to support this order, and also the statements made by my noble friend Lord Elystan-Morgan and by other noble Lords on this side of the House. This order, which amends the law in Northern Ireland concerning some aspects of homosexual acts, is not, by any means, among the most serious of the issues which are today confronting the Northern Ireland people. At the same time, there is no doubt that the order has given rise to highly charged political controversy; political controversy which, I believe, has grossly misrepresented the legal implications and the socially acceptable purposes of this order; political controversy which has created a great deal of misunderstanding and the use of community energies, which could be much better employed in promoting measures to protect our children, rather than in pressing for hollow repressive penalties on adults.
As other noble Lords have pointed out, it is important to note that this draft order will not give practising homosexuals carte blanche, with no public accountabilitity. The draft order has two sides to it. There are many homosexual practices which will continue to be offences under the new law. The distinction between homosexual and criminal offences is clarified in the order, and the police will be better equipped to deal with the latter and to protect those who are in real danger. It is, therefore, vital that the public should be made aware of the distinction between what the new law will permit and what were, and will continue to be, criminal offences.
It is worth mentioning, also, that when the law is brought into line with that in Great Britain the penalties for committing or procuring the commission of an act of gross indecency with a young person under 2I years of age will be more severe than those at present in force in Northern Ireland. Such facts seem to be either ignored by objectors to this proposed new law, or else they, like so many, are ignorant of them. Such increased protection for those in real danger is to 419 be applauded. It is as necessary in this respect as conforming with the European Convention on Human Rights.
In April, 1977, as the noble Earl the Minister has pointed out, the Northern Ireland Standing Advisory Commission on Human Rights published a report on the law in Northern Ireland relating to divorce and homosexuality. At that time, having invited and received evidence from a wide and representative body of opinion in Northern Ireland, they concluded that most people did not regard it as satisfactory to retain the existing differences in the law, and few only would be strongly opposed to changes which would bring the Northern Ireland law into conformity with that in England and Wales.
In its report, the commission quoted from a special feature article in the Belfast Telegraph, dated 19th May 1976, which read:Today we publish an article on homosexuals in Ulster—who they are, how they organise themselves and what are the changing attitudes to them. It is a subject that even many liberally-minded people prefer to ignore, rather than face up to the need for a change in the law. But the point has come when, for the sake of common humanity, action should be taken... British public opinion was ready for the change nine years ago, and Northern Ireland has been catching up over recent years...Other things are more pressing, of course, but attitudes are changing, and in this Ulster society is becoming more compassionate and understanding. There is more than enough suffering in this community to add to it by threatening people for being what they are.There are also those who will argue that to liberalise the law will encourage deviant behaviour. In this respect, I would echo the views of Mr. Roy Jenkins, who was then Home Secretary when the Bill of 1967 became an Act. He stated, during the passage of that Bill, that:There is certainly no evidence whatever that homosexuality has increased in those countries which have relaxed the law very much on the basis proposed by my honourable friend, such as Sweden in 1944, or Austria in 1960.Such evidence as there is goes the other way and suggests that the existence of largely unenforceable legal provisions tends to bring the law into discredit and to invest the behaviour it seeks to prohibit with a spurious and most undesirable glamour and attraction. The present law certainly does not discourage homosexuality. I believe that homosexuality cannot be described as a disease in the sense that it can be cured. It is a disability and a very real disability for those who suffer it, which greatly minimises their chances of finding ordinary, stable emotional relationships.The question that we have to answer is whether on top of that disability we should subject these people to the rigours of the criminal law. We would have to be very certain in our own minds that we were sustaining some clear social purpose by doing that. Unless we are doing that, we do not discourage homosexuality; we do not reduce it to any extent".It is untrue to claim that all churches in Northern Ireland are opposed to this order. Certainly the churches in Northern Ireland are concerned about homosexuality and about overt forms of sexual behaviour and the exploitation and corruption of the moral standards of our young people. Among many bodies which do not oppose this order is the Northern Ireland Standing Advisory Commission on Human Rights. Trade union organisations have also expressed concern about the unfair use of the present law to victimise some workers.
We have been dealing with some of the legal aspects and I have tried to indicate a Northern Ireland point of view. I am the proud grandfather of nine 420 grandchildren who bring great joy to my wife and me. I believe in and seek to uphold the sanctity of the home and the family unit, but family wellbeing, happiness, care, love and tolerance must be extended with grace and understanding to others in our community. I, believe that this order is an expression of that understanding. In its judgment the European Court said at paragraph 62:The court has already acknowledged the legitimate necessity in a democratic society for some degree of control over homosexual conduct, notably an order to provide safeguards against the exploitation and corruption of those who are specially vulnerable by reason, for example, of their youth".I am glad that the draft order takes care of this. For these reasons I give it my support.
§ 4.12 p.m.
§ Lord Mishcon
My Lords, I rise only for a few minutes, I promise your Lordships, as possibly the only Member in the House this afternoon who was a member of the Wolfenden Committee which sat some—it seems odd to remember it—26 years ago. It is surprising that some 26 years later we are wondering whether the recommendations of that committee should be carried into effect in Northern Ireland. I wish to make only a couple of observations in order, at least from my own point of view, to try to clear up some of the points which have been raised this afternoon and which may lead to a little misunderstanding.
In the first instance, may I turn, almost apologetically, to the noble Earl the Minister who referred, as I remember it, on two or three occasions to the criminal law relating to homosexuality. There never has been anything in our criminal law relating to homosexuality. The mere fact of homosexuality has never been a criminal offence. The only thing that the criminal law deals with are homosexual offences which arise out of homosexuality. I think that is a point which ought to be made abundantly clear.
§ Lord Molloy
My Lords, I wonder whether my noble friend would give way. I am interested in what he said about the Wolfenden Committee of 26 years ago. Can he explain to the House what were the charges under which many thousands of our fellow-countrymen were almost harried to the rack? My noble friend is now saying that homosexuality is not a criminal offence. What, then, were those people harried for in the courts of this land?
§ Lord Mishcon
My Lords, obviously it was to some purpose that I rose, if only for a few minutes, since my noble friend is under a misunderstanding. I repeat that homosexuality itself was never an offence in English law. The mere tendency to have homosexual thoughts, the mere desire to have homosexual activities was never in fact an offence under our law. It was merely giving vent to those desires and in fact committing homosexual acts which was an offence. That was a distinction which was very definitely drawn in the Wolfenden Report.
In view of the fact that the words "moral judgment" have been used in the course of this debate, may I make it clear that the Wolfenden Committee did not make a moral judgment on homosexual offences. It made a moral judgment as to what ought to be the 421 boundary lines of criminal law and conscience. We left it to the individual conscience to decide whether or not homosexual relationships were proper or improper. It was not the purview, we thought, of the criminal law to interfere in such matters where the acts were between private persons who conducted their activities in private and with the consent of both them, if they were adult.
Lastly, I wish to agree most fervently with those who have referred, as did the noble Lord, Lord Foot, to the European Convention on Human Rights, our obligations thereunder and the decision of the European Court of Human Rights. Too often in recent years your Lordships and honourable Members in another place have had to follow in the wake of decisions of the European Court of Human Rights. I regard this as rather reprehensible in view of the tradition that we have so proudly upheld over the years: that if ever there were a Parliament, that if ever there were a nation which protected human rights it was this country. Whatever be the political colour of Governments—and it has been emphasised that this is in no way a political debate—we seem to lag behind, in legislative action, what ought to be done regarding human rights.
I do hope that governments of whatever political colour will try to see to it in future that in this very sacred field of human rights we are in the vanguard and that we are teaching others, including our fellow members of the European Community, what human rights ought to be protected, instead of having to be told by the European Court of Human Rights how to behave.
§ 4.19 p.m.
§ Lord Monson
My Lords, as one who has consistently spoken and voted in favour of decriminalising this form of private activity between consenting adults on almost every occassion the issue has arisen over the past 17 years or more, and as one who strongly believes in harmonising laws throughout the United Kingdom in order to weld the kingdom more closely together, it is obvious that I wholeheartedly welcome this order in principle. But so far as the actual timing of the order is concerned, there is surely one thing which should make us hesitate, if only for a moment. This is the state of public opinion in Northern Ireland to which the noble Earl, Lord Gowrie, and others have already referred.
Over 20 years ago at the beginning of the 1960s, or possibly right at the end of the 1950s, when this issue first began to surface the late News Chronicle published a most significant public opinion poll on the tentative proposals, as they were at that stage, for liberalising the law. The poll revealed a most interesting state of affairs. There was a narrow majority in the South of England in favour of liberalising the law. In the North of England public opinion was two to one against doing so, while in Scotland it was no less than eight to one against doing so. All the indications are that Northern Irish public opinion today is akin to that in the North of England 20 years ago or to that in Scotland five to 10 years ago. Let us not forget that Scottish public opinion is still fairly polarised on this issue, if the debates and Division List of both this House and another place during 1980 are anything to go by.
422 This does not mean that public opinion should have the last word. An activity which is essentially private and which does not and cannot harm third parties is by definition none of anybody else's business. This applies even more forcefully to intimate personal behaviour of this nature than it does to questions of the wearing or otherwise of seat belts or crash helmets, to immunisation against infectious diseases, to smoking, to drinking and so on. But if public opinion in Northern Ireland is to be overridden—and I believe that in this instance it must be overridden—then it is surely incumbent upon the Government to proceed with the maximum tact and sensitivity in so doing. Unfortunately, by pushing this order through at this particular moment it will appear to many people in Northern Ireland that the Government are rushing with unseemly haste in order to prevent the measure being discussed by the new Northern Ireland Assembly, where they know the opposition will be pretty considerable, to put it mildly.
There is a more important aspect. Many people in Northern Ireland share the scepticism of some of us here about devolution in general and the Northern Ireland Assembly in particular. But I think almost everybody there resents the under-representation—one might say the undemocratic under-representation—of the Province at Westminster. With this in mind we have to ask ourselves what we really want. Surely what most of us here today really want is for a halt to be called to the prosecution and harassment, and possibly the blackmail, of a small number of unfortunate individuals. Exactly how this is achieved is less important. The tactful way of achieving this objective initially, I suggest, would be for the Government to ask those responsible for initiating prosecutions in Northern Ireland not to initiate any future prosecutions. There are at least two precedents for acting in this way. The first was in the Isle of Man. When the European Court ruled against birching, legislators in the Isle of Man did not rush off to change the law; the law permitting birching still remains on the Isle of Man's statute book so far as I am aware. All that has happened is that courts no longer impose such a sentence.
The second example is Scotland. For many years prior to the decriminalisation of private homosexual activity in Scotland two years ago, prosecutions were not brought, by tacit agreement. I agree that this can be only a short-term answer and not a long-term one, if only for constitutional reasons; bad laws ultimately must go. But within 18 months, or at the most two years, Northern Ireland is certain to be properly and democratically represented at Westminster at long last. That is the moment for an order or, better still, a Bill to be introduced to formalise what would already be an accomplished fact—the total decriminalisation of this form of behaviour. The outcome would not be in doubt. The order or Bill would go through however the 17 Northern Ireland Members divided on the issue. But at least those in Northern Ireland who oppose this measure would not be able to claim that it was foisted upon them as a result of inadequate representation at Westminster.
My general support for the objectives of this order is so firm that there could be no question of my opposing it; but I do regret that these admirable objectives 423 cannot be achieved in a more tactful manner, given the sensitive state of public opinion in the Province.
§ 4.24 p.m.
§ Lord Molloy
My Lords, the House will be indebted to the noble Earl the Minister for the manner in which he introduced this measure, for us to fully understand what is involved. We owe a great debt also to my noble friend Lord Elystan-Morgan for the very sensitive manner with which he portrayed what was once a massive issue, and now we have overcome it.
I am bound to say that I was terribly dismayed to hear my noble friend on the Front Bench, Lord Mishcon, emphasise that all could be forgiven because being a homosexual was not a criminal offence; given all the things that happen to people who are simply found out, let alone brought to trial—careers are ruined. If I may say so, I believe that I speak with much more authority than any lawyer. I happen to have been a Staff Side chairman covering no less than 11 trade unions for all the great professions of this country. I do not know how many thieves, cat burglars and murderers were caught and were put to death or sentenced to harsh sentences, but I do know this—and I hope that my noble friend on the Front Bench will listen to this because it is vitally important, given he told me I did not quite understand, and I will tell my noble friend what I understood: although these people may not have offended criminal law, long before they came to trial no less than 27 males who committed no criminal offence committed suicide. I do not think that one should suavely and in lawyers' terms say that there was no criminal offence; there was something even worse than a criminal offence. It would be far better it' we all acknowledged that the courageous Act of 1967 did a great deal to bring civilised behaviour to these difficult quarters of mankind's behaviour, and which we in this country faced.
I am bound to say that I am very grateful for the manner in which the noble Earl introduced this order with particular reference to Northern Ireland, and for the poignant manner in which my noble friend Lord Elystan-Morgan replied. It helps us to understand people who, for reasons they do not understand and we do not understand, are homosexuals. It would appear that the Victorians understood it so far as women were concerned because lesbianism was not an offence in the reign of Queen Victoria. At least we have caught up in trying to understand the difficulties. That is why I believe we ought to be pleased that such a measure has come to this House, and we ought to approve it.
§ Lord Mishcon
My Lords, before my noble friend Lord Molloy sits down, I wonder whether he will permit me to give a personal explanation? It must have been my fault if I did not make my position clear. I will try to do so now, and I promise your Lordships that I will do so briefly. I was a member of the Wolfenden Committee which made the recommendation that became the 1967 Act my noble friend regards as so merciful. Secondly, he must have completely misunderstood me when I was explaining that in law, to think that it might be a good thing to steal was no crime and that therefore, to think that it might be a good idea to have homosexual relationships was no crime—that it was homosexuality. I entirely agree with 424 my noble friend about the vicious sentences which were passed. I was trying to point out that the only thing that came up against criminal law was when homosexuality expressed itself in an homosexual offence. I hope that I have made myself clear now to my noble friend.
§ Lord Boothby
My Lords, I have already addressed your Lordships too often on this subject, but as the man who was primarily responsible for getting the Wolfenden Committee established, by persuading the then Home Secretary, Sir David Maxwell Fyfe, to do it, and who also introduced a Bill to your Lordships' House to extend Wolfenden to Scotland (which was passed by a large majority when I first introduced it to your Lordships, and by an overwhelming majority of the House of Commons when it was reintroduced there in the form of an amendment to another Bill by a Labour Member). I must say that so long as we still govern Northern Ireland, it is quite monstrous that we should not extend the provisions of Wolfenden to the people of Northern Ireland. We do still govern Northern Ireland. The noble Earl the Minister has made it perfectly plain here today that, for the time being, as a result of the elections in Northern Ireland, any question of complete devolution was ruled out; that we were responsible for governing Northern Ireland indefinitely and that so long as that position is maintained—if they ever get a Government of their own and wish to reverse it they are welcome to do so—it would he quite monstrous to exclude Ulster from Wolfenden.
§ 4.30 p.m.
The Earl of Gowrie
My Lords, your Lordships' House has a distinguished history in terms of social reform, including in this field, as I said in my opening speech. The debate—a rather longer, more trenchant debate than I expected, but animal welfare and sexual matters always command the attention of your Lordships—indicated that, and I am glad that we were reminded at the end that the noble Lord, Lord Boothby, had also played his part in the liberalisation of the law.
My Lords, I do not think I have much more to say because relatively few points were put to me, and virtually all noble Lords spoke with eloquence and clarity on the issue. I would perhaps say to the noble Lord, Lord Blease, that this is the first time we have faced each other across the Dispatch Box when he has not been on the Front Bench. I regret his loss to the Front Bench by his own volition, and I am very grateful to him for the very helpful way he conducted opposition during my period in this difficult office. I notice that the noble Lord is now sitting somewhat midway between the Front Bench and what we sometimes think of as "the choristers." He also mentioned that great reforming Home Secretary, Mr. Jenkins, in his speech. I do not know whether we should read anything into this or not, but that is, of course, for the noble Lord.
I would say to the noble Lord, Lord Monson, since he did put some questions of substance to me, certainly we were considerate of public opinion in Northern Ireland. In fact, I think we went rather further towards public opinion in Northern Ireland 425 than many of the speakers on the Liberal Benches and some of the Back-Benches of the Labour Party thought wise, because we recognise that in Northern Ireland—as indeed, I can say from experience, in the Republic—there are very strong bodies of opinion which believe in prescriptive law and that human laws must be made with reference to interpretations of divine laws. That is not our way in this more secular part of the archipelago, but nevertheless that is very strongly felt and we had to take that into account.
Having done that, there was no question of our trying to introduce this order, as the noble Lord, Lord Monson, appeared to be accusing me of doing, in some kind of unseemly haste before the Northern Ireland Assembly meets following the recent elections. The fact of the matter is that we were simply in breach of international obligations. We were in the dock, as it were, and had been found guilty. It was absolutely up to us to make rectification in respect of the individual involved, but also in respect of a change in the law. Perhaps I should have made that clear to the noble Lord and others in my opening speech. When the beak tines you, you must pay your fine; it is no good saying that to do so would generate unseemly haste.
The other point I would make to the noble Lord, Lord Monson, is that there can he no effective recourse to administrative action while leaving the law unchanged. Even though there had been no prosecutions' in respect of adult homosexuals in Northern Ireland in recent years, the court still found that "the maintenance in force of the impugned legislation" was in fact in breach of the convention.
My Lords, the noble Lord, Lord Elystan-Morgan, very clearly drew a distinction between secular and moral laws, and of course I very much subscribe to that view. I think I would end by echoing the wise words, if I may say so, of the noble Lord, Lord Blease, when he appealed for grace and understanding. I do not think two words could be better put together than that, not only in respect of this legislation, but in respect of so much else in Northern Ireland.
§ On Question, Motion agreed to.