HL Deb 09 December 1985 vol 469 cc63-9

6.51 p.m.

Lord Wilson of Langside

My Lords, I beg to move that this Bill be now read a second time.

The essential purpose of this little Bill is to alter and to restate in modern statutory form the Scottish law of incest. The necessity for, or at least the desirability of, this has been obvious to all who have known about it for a very long time indeed. Why our legal organisation has not earlier given birth to such a measure might, it occurs to me, be the subject of a learned treatise which might interest some lawyers, would probably bore most laymen and would certainly have no place in this Second Reading debate which the Whips, I gather, anticipate will not occupy more than one hour.

In 1977 this matter was referred under Section 3(1)(e) of the Law Commissions Act 1965, taking its place among many others, to the Scottish Law Commission which submitted a most useful and splendidly comprehensive report in 1981, The Law al Incest in Scotland. That is published as Command Paper No. 8422 which is available to your Lordships in the Printed Paper Office and which I would commend to the House.

For the avoidance of misunderstanding—I have occasionally perhaps been critical of the Scottish Law Commission in your Lordships' House—what I said about the time it has taken to bring forward a measure relating to this matter was neither impliedly nor expressly directed towards the Scottish Law Commission. The matter goes much further back than the time when the Law Commissions Act was a mere twinkle in the eye of that great Lord Chancellor the noble and learned Lord. Lord Gardiner—very much further back than that.

The Bill is taken in its entirety from the first appendix to that report. I have simply adopted it verbatim. In essence, I thought that it did the job which needed to be done. I do not present it as perfect in every respect. There will be room, as there almost always is, in Committee for improvement in a number of quite material respects. There may well be a difference of view as to the Bill's treatment of the relationship between adoptive parents and children. Indeed, the commission hesitated and, understandably, I think, vacillated a little before they came to the conclusion to which they did come in this context. I shall say a further word about that in a moment or two.

In a nutshell, the Bill simply does four things. First of all, it leaves all these consanguineous relationships which are at present within the ambit of the law of incest where they are and where they have been for many years. This simply means that sexual intercourse between the following people will remain incestuous in the eyes of the law: between parents and children, between grandparents and grandchildren, between great-grandparents and great-grandchildren, between uncles and nieces, between aunts and nephews and between brothers and sisters. Such intercourse will continue to be treated as incestuous in the eyes of the law.

The second thing is that the adoptive relationship is brought within the ambit of incest to the extent only of the relationship between the parent and child. That means, of course, sexual intercourse between an adoptive parent and an adopted child will be treated as incest. This may be a controversial issue and there may be different views about it. I say frankly that I had some reservations about it, but rather than take time to try to find the kind of amendment that might have met some of the reservations, expressed, indeed, in the commission's report, I thought it better, in the interests of expedition, to bring the Bill forward as it is.

My impression from the conclusion of the commission in this context was that they were swayed understandably or legitimately enough, to some extent, by the weight of opinion which they received from the very wide variety of organisations which they consulted as they were preparing their report. At any event, that is the second thing which the Bill does.

The third thing is that it takes out of the ambit of the criminal law of incest all these relationships by affinity which are presently within it. That means that sexual intercourse between a person and the relatives of his or her spouse will no longer be incestuous in the eyes of the law.

The fourth thing that the Bill does is to create the related offences of the Title of the Bill. The necessity for this arises, as your Lordships will readily appreciate, because some of the relationships by affinity which are taken out of the abmit of the incestuous will include children and young persons; for example, stepchildren. The new offences created are designed, of course, to protect them againt sexual molestation.

I say frankly that I am a little unhappy about some of the detail of the provisions in these related offences. I think many of your Lordships will feel that the age up to which the children should be protected should be significantly more than 16 years as at present provided. Some may think that it should be 18 years and others that it should be 21 years. In any event, in a nutshell those are the four matters with which the Bill deals.

Your Lordships may ask: why is a Bill to those ends necessary in Scotland? The present law of incest is based upon an Act of the Scottish Parliament of 1567 which in turn takes its stand on verses 6 to 17 of Leviticus, chapter 18. The language of the Act is a little archaic, though I am bound to say that I rather think that the ordinary educated man or woman in the street could probably reach a conclusion as to what the legislators of the 16th century were getting at more readily than they do sometimes when struggling with some modern legislation in such areas as town and country planning, taxation and the like.

However, the Act speaks of: the abhominabill, vile and fylthie lust of incest". After some fulmination on the subject it comes on to Chapter 18 of Leviticus. (Incidentally, the report says that one of the commentators who appeared before the commission put the date of Chapter 18 in the 11th century before Christ.) Be that as it may, the matter does not end there, because in construing Leviticus Chapter 18 the text to be looked at is the Geneva Bible of 1562 which was current when the 1567 Act became law. Thus, in a case in 1969 the court had to be furnished with copies of the Geneva Bible from the National Library. As the presiding judge somewhat wryly observed this was: an advantage which might not be shared by all persons in doubt as to whether they were in the prohibited degrees or not". Perhaps as a matter of interest I should quote to your Lordships from the verses of the Geneva Bible which are quoted in the commission's report at page 2. Verse 6: None shall come nere to anie of the kindred of his flesh to uncover (her) shame: I am the Lord". One could talk at great length about the significance of that kind of language all those years ago, if time were not limited. However, I found that in the authorised version the text does not refer to "shame"; it refers to "nakedness". The New English Bible speaks of the sexual relation. I find much food for thought in the use of those kind of archaic expressions to describe what is involved in this very difficult and delicate subject.

In any event, in the light of all that history I should have thought that the commission, in their report, were not overstating the case when, at the top of page 2, they said: The language, as well as the terms of the foregoing provisions are thought to be sufficient in themselves to suggest that critical re-appraisal of this branch of the criminal law is necessary and indeed long overdue.". As I have already said, what follows after that passage is a quite admirable and painstaking critical reappraisal. I should have thought that that reappraisal whatever improvements we may make to this measure at later stages of our discussions, puts the necessity for reform in principle beyond dispute.

I wondered whether I should say anything at all in support of the Bill's retention of incest as a crime. Apparently that was one of the questions the commission considered, they indeed devoted some eight pages of their report to a careful consideration of the question. I have not the slightest doubt that their conclusion that incest should remain a crime was the right one. Therefore, I shall not detain the House upon that matter unless perchance any questions are raised at a later stage. We might today—most of us—express our repugnance at the idea of sexual relations between close blood relations in language somewhat different from that of the legislators of 1567. However, I should have thought that the repugnance is surely at least as strongly and as widely felt. Moreover, that of course is only one of the factors supporting the view which is basic to the Bill—that incest should remain a crime.

The Bill incorporates the reforms of the law which I have indicated and the related offences into the Sexual Offences (Scotland) Act 1976. This is a style of drafting which is sometimes criticised, and understandably so. Indeed, I have criticised it myself at times. However, in this case it seems to me altogether sensible—and I think the report has adopted the proper solution—particularly since the provisions in the Bill are effectively self-contained. Therefore, the type of problems of incomprehensibility which can sometimes arise do not arise in this case.

There are many points of detail in the Bill upon which I have not touched. I know that it is the practice today even on Second Reading to go into the detail of the provisions of Bills. This is understandable, having regard to the nature of much modern legislation. I have not done that in view of the hour, and I do not intend to do it. The measure is long overdue. I hope that your Lordships will have no hesitation in accepting it in principle and I hope that we can then proceed to consider it in principle and I hope that we can then proceed to consider it perhaps in more detail in Committee and during later stages of the Bill. I beg to move.

Moved, That the Bill be now read a second time.—(Lord Wilson of Langside.)

7.10 p.m.

Lord Morton of Shuna

My Lords, this is another instance which shows the value of the work of the Scottish Law Commission. The noble and learned Lord, Lord Wilson of Langside, is to be congratulated on presenting this Bill only four years after it was drafted by the Law Commission. It can do nothing but good to make the crime of incest, as defined by the statutes, capable of being understood, as the 1567 Act is certainly not now so capable.

I would agree with the noble and learned Lord that incest should remain a crime. It is clear from the cases that come to court that those cases which do come to court are only, so to speak, the tip of an iceberg, the extent of which we do not know. They are also cases which usually illustrate a family which has been very unhappy for a long time. It usually seems to be that it is only after several years of an incestuous relationship that the matter comes out into the open. Therefore, I consider that it is essential that incest should remain a separate crime.

It is also good that adopted children and illegitimate children should have the same protection as legitimate children. Where I consider the Bill and the Law Commission report to be wrong—and possibly this is due to my Presbyterian upbringing—is in their approach to stepchildren. I consider that they should be treated in exactly the same way as adopted or illegitimate children, and should have the same protection.

The Bill provides by Clause 2B that a stepchild is protected only up to the age of 16, and that below that age the offence is not incest but some innominate sexual offence. If a person marries another who already has a child or children, that child or those children are in fact normally treated exactly as if they were adopted. They are accepted into the family and the parent and the step-parent normally regard them as children of the new family. I would suggest that this is how society considers that they should be treated. Fairly often, for a variety of reasons, the step-parent in fact adopts the child of his spouse.

The proposal that where, for example, the daughter of the mother reaches 16 intercourse between the stepfather and the daughter is not to be criminal seems to me to strike a severe blow at the family relationship. Where the criminal law forbids an activity, the mere fact that it is against the law has some effect in diminishing the frequency of that activity and is a factor weighing against temptation, quite apart from the penalty that any conviction may bring.

It is fairly obvious that a 16-year or 17-year old young lady may be attractive to, and attracted by, a stepfather, and it appears astonishing to remove any sanction and so permit such a relationship which would be wholly destructive of the marriage between the stepfather and his wife. If the step-parent/stepchild relationship is not to be wholly forbidden by categorising it as incest, I would suggest that the prohibition should clearly extend not merely to 16 but to some age much higher, such as 21, or that there should be prohibited altogether (as in the provisions of the Marriage Bill that your Lordships' House has just discussed) any relationship between a step-parent and a stepchild if the younger party was at any time a child of the family as defined in that Bill. On the question of age, I would suggest the same age of 21 should be applied to deal with the situation covered by Clause 2C.

On the whole, the provisions in the Bill are to be welcomed, and especially the provisions which allow incest to be prosecuted in the sheriff court, either on indictment or in the sheriff's summary court. That procedure will be welcome to everybody who has ever been concerned in the prosecution of such cases.

7.15 p.m.

The Lord Advocate (Lord Cameron of Lochbroom)

My Lords, I, too, should like to add my congratulations to the noble and learned Lord, Lord Wilson of Langside, for bringing this Bill before your Lordships' House and thereby affording us an opportunity to debate what is undoubtedly an important and sensitive subject. As the noble and learned Lord has explained, this Bill extends to Scotland only, and it seeks to implement recommendations of the Scottish Law Commission in their report on this subject. The Law Commission's proposals, which were carefully considered, suggested modernisation of the present Scots Law on incest contained in the Incest Act 1567, although that Act has in fact been restricted in part by the Criminal Procedure (Scotland) Act 1938.

The noble and learned Lord quoted from Leviticus in the Geneva Bible and the subsequent translations. I was only sorry that he did not also attempt to quote from the original Act, which is in a language with which I am sure he is familiar, the good Scots tongue. But I think it has to be accepted that there are difficulties in any event in obtaining the relevant text, and the Government think it right that the law in this area should be carefully looked at.

It is not an area of law in which the Government themselves have a view. It is, however, a subject about which noble Lords may well hold deep personal and religious convictions, and it would not therefore be appropriate for the Government to seek to influence noble Lords in their consideration of this matter. I would only note that the Scottish Law Commission itself issued a consultative memorandum prior to preparing their report and making the recommendations in it, and out of some 49 organisations and individuals from whom they received comments, as the report states in paragraph 1.3, with the exception of one commentator, who took the view that the law should continue to be based on Leviticus Chapter 18, all other commentators agreed that the law of incest was in need of immediate reform. It is in that light that I particularly congratulate the noble and learned Lord in bringing this Bill forward.

The noble and learned Lord has set out the provisions of the Bill, and it would be otiose for me to seek to amplify his observations contained, as they were, within the nutshell of which he spoke. It would be tantamount to piling Pelion upon Ossa. But there is one matter to which I would allude, and that is the question of the relationship between this Bill and the Marriage Bill which has just received its Second Reading, introduced by the noble Lord, Lord Meston.

As my noble friend Lord Davidson has already said, that, too, of course, is a matter in which it is appropriate for the Government to adopt a neutral stance, but we are arranging to undertake consultations in Scotland to see whether, if that Bill were to be approved by Parliament so as to affect the law of England and Wales, it ought to be extended to Scotland also. The degrees of marriage which would cease to be prohibited by virtue of that Bill as presently proposed are at present relationships within which sexual intercourse would be a crime of incest according to the law of Scotland.

If it were to be the view of Parliament that the principle and details of the Marriage Bill were desirable, it would also be necessary to amend the present law of incest in Scotland so as to avoid the nonsense alluded to already by the noble Lord, Lord Meston, in the previous debate that persons who are legally married in England could, in law, be liable to prosecution for the crime of incest in Scotland were they to come north of the Border and there have marital relations. This would be true whether or not the Marriage Bill were to apply to Scotland. We must obviously cater for the possibility that persons married in England may at some time wish to visit north of the Border in safety.

The Bill now proposed by the noble and learned Lord, Lord Wilson of Langside, will achieve that necessary amendment—something which not even a Lord Advocate at his own hand could achieve, notwithstanding the assertion by the noble and learned Lord in the debate which has just concluded. The Bill is therefore consistent with the aims of the Marriage Bill, and this Bill, or one having a similar effect, will be necessary before, or at the same time as, the Marriage Bill, if it be approved by Parliament, becomes law.

As I have said, this is not a matter on which the Government as such have a view. Important and difficult moral and religious questions arise, as has already been indicated in the speeches that have been made. I am sure that noble Lords will weigh all these points carefully. All I would say is that a change of some kind will be necessary if the changes in the law of marriage that have been debated already before your Lordships today were to be approved.

Lord Wilson of Langside

My Lords, I am grateful to the noble Lord, Lord Morton of Shuna, and to the noble and learned Lord the Lord Advocate for what they have said in relation to the Bill. The noble Lord, Lord Morton, referred to the tip of the iceberg theory. This has been a theory which has been widely held. I recall when involved in cases of incest many years ago hearing this view expressed by many social workers, medical men and others: that the 10 or so a year cases that we had in Scotland of prosecutions for this crime were just the tip of the iceberg. To what extent this is precisely true I cannot be certain. It emphasises the desirability, as Lord Morton said, of keeping the crime on the statute book.

To some extent (although I do not know precisely what) I share some of the reservations expressed by the noble Lord, Lord Morton, about the position of stepchildren. I am sure we shall have the opportunity of discussing that problem both before and after the Committee stage of the Bill. Some changes may be effected at these later stages. I was glad, too, that the noble Lord, Lord Morton, welcomed the opening up of the sheriff courts to the prosecution and trial of these offences.

The noble and learned Lord the Lord Advocate referred to the difficulty raised by the noble Lord, Lord Meston, in the debate on his Bill. I know that the noble and learned Lord the Lord Advocate knows this well, but, for those of your Lordships who are not lawyers, there is a provision in Clause 1. It is provided in the proposed new Section 2A that there can be no guilt of incest if the accused proves that he was married to the person with whom he is alleged to have committed sexual intercourse at the time when the sexual intercourse took place, by a marriage entered into outside Scotland and recognised as valid by Scots law". That is a valid defence, and I am sure that in such a situation no sensible Lord Advocate would dream of initiating a prosecution.

I am grateful for the attention that has been given to the presentation of this Bill. My Lords, I beg to move.

On Question, Bill read a second time, and committed to a Committee of the Whole House.