HL Deb 01 February 1988 vol 492 cc928-74

9.14 p.m.

House again in Committee on Clause 28.

The Deputy Chairman of Committees (Lord Alport)

I understand that Amendment No. 115 falls as a result of the defeat of Amendment No. 114.

Lord Monson moved Amendment No. 116: Page 28, line 17, after ("(1)") insert ("Without the prior approval of a majority of those electors entitled to vote in a local poll,").

The noble Lord said As one of the original 94 Members of this Chamber who voted almost 23 years ago for the Wolfenden Committee's recommendations for the reform of the laws governing private male homosexual behaviour, at a time when this was considered a fairly shocking and even disreputable thing to do in some quarters, and as one who has consistently spoken and voted in favour of all subsequent decriminalisation measures, whether in relation to Scotland or Northern Ireland or to 18 to 21 year-old males, I do not think that anybody could accuse me of being hostile to the genuine (I stress the word "genuine") rights and freedoms of homosexuals.

However, it is one thing to say that the police should never again be obliged to peer through keyholes into the bedrooms of consenting adults. It is quite a different thing to claim that local authorities should be free, using ratepayers' money, to propagate purpose of this book seems to be to persuade impressionable teenagers that there is no pleasure in life more intense or desirable than being sodomised by an older man. A more blatant example of trying to brainwash teenagers who are going through a transient homosexual phase into crossing the line permanently can scarcely be imagined.

I should add that before dinner the noble Baroness read out some of the most innocuous passages from that book. Far worse is contained within it. This, in conjunction with various other developments that have come to light over the past years and months, has persuaded me that Clause 28, albeit with suitable modifications, not only those in the name of the noble Earl, Lord Caithness, and the noble Baroness, but possibly also Amendment No. 120, in the name of the noble Lord, Lord Peston, is indeed necessary. In taking this line I must disagree with my noble friend Lord Annan, who I understand was also one of the original 94 who voted for Wolfenden.

Let me explain Amendment No. 116. Perhaps those of us who are in our fifties or older are out of touch with what ratepayers and local government electors with children of school age feel about this matter. I do not believe that we are, but I may be wrong. If the militant homosexuals and their supporters are as numerous as they claim to be—it was originally 1 per cent. or 2 per cent.; it then rose to 5 per cent., then to 10 per cent., and now it is more like 20 per cent.—their large numbers, combined with the intrinsic merit of their arguments, assuming that their arguments have merits which many of us have been too obtuse to appreciate, should be sufficient to ensure that they win any local poll, such as that held in Swanage prior to the Third Reading debate on the Swanage Yacht Haven Bill in this Chamber fairly recently.

If, on the other hand, they are not as numerous as they claim, and/or their arguments fail to convince their fellow local government electors, they will lose. Either way, local democracy in its true sense will have prevailed.

Let me stress that there is no question of genuine, fundamental freedoms being put at risk in any way by this amendment. Nor is there any question of censorship. If local government electors vote against such material being provided on the rates, material of this kind will still be available in sex shops for purchase, or indeed in ordinary bookshops if the owners feel inclined. It is one thing to allow such material to be sold. It is quite a different thing for unwilling ratepayers to be forced to pay for it. I beg to move.

Lord Campbell of Alloway

I oppose this amendment. It is totally unacceptable in principle because the justification for the intervention by central government in devolved government is the sad saga of the abuse of rates in this and other contexts; but we are concerned only with this context within the prohibition of Clause 28.

If it is right and necessary—indeed requisite—for central government to intervene in the interests of the vast majority of ratepayers, it is wholly unacceptable, as I see it, to carve up the country into a series of city states where there is a disparate regime according to the vote of the majority of the electors in each city state. That may have been all right for the doges of Venice; but surely in principle this is a novel and wholly unacceptable proposition.

Lord Henderson of Brompton

I do not think this is a novelty. The noble Lord will recall that there used to be local control about the opening of pubs. That no longer exists; but there certainly is a precedent for it. I am not recommending it particularly, but it is going in the right direction. As my noble friend Lord Monson said, it is at least asking the people what they want to have in their district, instead of the Government dictating whatever they may or may not have.

I feel sure that my noble friend Lord Monson has the right instincts on this matter. I believe that if we let the local people foment enough opposition to the objectionable practices, that would be quite enough, together with the DES circular and a properly drafted code of practice. The Milkman, which I have not read, but extracts from which have been quoted by the noble Baroness, could be dealt with by being prosecuted under the Obscene Publications Act. It is not a reason for bringing the clause into the Bill.

Lord McIntosh of Haringey

I should be the last to question the credentials of the noble Lord, Lord Monson, on this matter. I certainly do not question his motives in bringing forward the amendment. Indeed, I come back from Australia as a recent convert to compulsory voting; but I very much doubt whether it is really appropriate to introduce, at this time and on this subject, the entirely new principle of a majority of those qualified to vote rather than a majority of those actually voting. There are very few local elections in which a majority of those entitled to vote vote on any side, let alone for the winning side, and to expect a majority of those entitled to vote to vote is a little unrealistic. Although the amendment is, as the noble Lord, Lord Henderson, says, undoubtedly well meant and is a step in the right direction, it is a minuscule step and I do not think it will help us very much.

Lord Campbell of Alloway

I do not suggest that it was not well meant, well intended or that I doubt the sincerity of anyone; but for the reasons I have sought to give I suggest that it is wholly misconceived and unacceptable.

The Earl of Caithness

The noble Lord, Lord Monson, whom I am glad to see taking part in the debate—I am sorry he was unable to do so earlier—suggests that the prohibition on the promotion of homosexuality should be qualified if the majority of electors entitled to vote at a local poll give prior approval to the proposal that the local authority may underake an activity that promotes homosexuality. Quite apart from the cost implications of such referenda, and the constitutional problems of deciding issues in that way, the Government have other worries that make us feel that we are unable to accept the noble Lord's such odious books as The Milkman's on His Way, to which the noble Baroness, Lady Cox, so helpfully drew our attention to some months ago. The chief proposition. Surely it plainly undermines our view that local authorities should not be promoting homosexuality in any circumstances.

The major drawback of the noble Lord's amendment arguably is that one effect of the amendment would be to authorise local authorities to promote homosexuality when it is by no means clear that they have such authority under the existing law. That is the major stumbling block, quite apart from those that worry the noble Lord, Lord McIntosh of Haringey, that makes us feel that is is not a step in the right direction as the noble Lord, Lord Henderson, thinks.

Lord Monson

I am grateful to my noble friend Lord Henderson of Brompton for his support and for his confirmation that there is indeed a precedent for the procedures which my amendment proposes. I was well aware that my amendment had the technical defect to which the noble Lord, Lord McIntosh, drew attention. Had it been acceptable, I would have been very happy to have altered that defect the next time round. I also anticipated many of the objections made by the noble Earl, Lord Caithness. I do not think in practice that they would come to very much because I cannot believe that many local government electors would vote in favour of the material which I described earlier. However, I think the whole issue needed an airing. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.30 p.m.

The Earl of Caithness moved Amendment No. 116ZA: Page 28, leave out lines 18 and 19 and insert— ("(a) intentionally promote homosexuality or publish material intended to promote homosexuality").

The noble Earl said: I have already spoken to this amendment. I beg to move.

Lord Gifford

May I ask the noble Earl for clarification? I apologise if the point has been covered. I was in a trial in Manchester this afternoon and could not attend the earlier session of the Committee. I should like clarification on the meaning of the amendment. There are two matters; first of all, "intentionally promote homosexuality". The intention there is clearly the intention of the local authority. The second matter is, "or publish material intended to promote homosexuality". Whose intention is being referred to? Is it the local authority again? Or if the local authority published material intended by its author, perhaps a well-known writer whose works, in someone's view, promoted homosexuality, would that be covered by the proposed amendment? Surely, it should be clear that the only intention involved is the intention of the local authority? As it reads, it is ambiguous. If the local authority published material which was intended by James Baldwin or E. M. Forster, or whoever else wrote it, to promote homosexuality, it would be capable of being covered by this clause. I hope that this point will be considered. Perhaps the Minister can obtain advice. I hope that he intends that it is only the local authority's intention which is meant to be decisive in construing this clause.

Baroness Seear

The point raised is really quite clear. It is not the local authority because "intended" qualifies the material. It is the material intended and therefore it is the author's material and not the local authority's intent, grammatically as it stands. This is not a point of argument; it is a point of grammar.

Lord Campbell of Alloway

My intention as draftsman—it is a valid point to take, if I may say so with respect to the noble Lord—was that it was the intention of the local authority. I would have thought it so read. If there is any doubt about it, it is surely a matter of importance which should be clarified.

Lord McIntosh of Haringey

This is a very interesting intervention by the noble Lord. We have heard of him drafting bills for the noble Earl, Lord Halsbury. Is he now drafting government amendments?

Lord Campbell of Alloway

The noble Lord is being rather mischievious, and that is permissible at this hour. He knows perfectly well that I do not draft government amendments. But the original draft of the Bill was my draft, if he was present when I spoke. My intention in the original draft, which has not been departed from, as I understand the government amendment, was that it should be the intention of the local authorities.

Lord Houghton of Sowerby

The more we hear about these amendments, the more ridiculous your Lordships' House will look on the television play-back 50 years from now. It is time for a little impatience to emerge in the debate. We have listened to more nonsense today than for many, many a day. What does the noble Earl want to do? Does he really want to carry this to the point of absurdity? How does one unintentionally promote? In any case, he has another amendment, Amendment No. 117A, which says, In any proceedings in connection with the application of this section a court shall draw such inferences as to the intention of the local authority as it sees fit". How many more times is the intention of the local authority, or the unintention of the local authority, to be stated, restated and finally examined by the court? Surely the Minister can leave it alone. When I say "leave it alone", I mean that we are going into the refinement of the words and the extension of their meaning when at the end of the day a court will decide the matter.

We shall soon have to issue guidelines and codes of conduct for the courts; we shall not be able to leave them to interpret words either. What is the matter with everybody? Why are we asked to stay late at night to go into this kind of guff? Surely we can get on and finish it now. Drop all this nonsense and let us get on and decide that we do not want homosexuality in schools. It ought to be in the Education Act but we have stuck it in the Local Government Act. We are to consider the curriculum and other matters relating to educational reform in due course, but here we are spending time on a local government Bill which really has nothing to do with this matter. Tomorrow we shall be talking about dogs. We shall spend hours discussing dogs tomorrow and all the arrangements have been made to spend hours discussing dogs tomorrow.

When television viewers see pictures of this Committee they will wonder what has happened. They will see all these ageing Peers sitting on crowded Benches and discussing homosexuality in schools. The young will roar with laughter and ask: what did those old men do when they were young?

The Lord Bishop of Manchester

I cannot follow an act like that! However, I should like to ask the Minister one question. I apologise if the point has been made before during the debate, as I am sure it has. The amendment states: intentionally promote homosexuality or publish material intended to promote homosexuality". I understand that that refers to homosexual acts and relationships. However, that is not stated and I should like the Minister to explain why. I ask that question because it seems to me important that a distinction should be made, because we know very well that a certain proportion of people in this country are homosexual by nature. It is vitally important that prejudice is not encouraged by a clause of this kind. I should like the Minister to say why it is not stated in that form.

Lord Boyd-Carpenter

In response to the comments made by the noble Lord, Lord Houghton of Sowerby, I believe that television viewers will regard this Committee with great respect for the trouble that it is taking to get the Bill right, whatever their views. The noble Lord says that the viewers will see aged Peers. They may see the noble Lord, Lord Houghton, but, on the other hand, when their eyes turn to the Government Front Bench, whatever accusation can be made against the Minister great age is not one of them. I believe that viewers will be deeply impressed to see that a Peer of his relative youth is able to handle this complex material with such skill, patience and effectiveness.

As regards the amendment, I should like to make the point that the intention is surely perfectly clear. If the material that is published is intended to promote homosexuality, surely it can be assumed that a local authority which takes it upon itself to publish that material intends to promote homosexuality. It can hardly say, "We published this so sweetly and innocently that we had no idea that this material was intended to promote homosexuality. We just thought it was beautiful literature". I cannot believe that it would get away with that in any court. It seems to me that my noble friend's amendment is perfectly effective. If the material is intended to promote homosexuality, then the local authority which has taken it upon itself to publish that material also intends to promote homosexuality. Therefore this seems to me a perfectly good amendment.

Lord Jenkins of Putney

Nobody is more anxious to get on with the Bill than I am, as I am waiting to move an amendment which stands in my name. However, I believe it is rather serious that we are proposing to leave in a matter of ambiguity on this question of intention. As my noble friend said: by whose intention? If the local authority is not only to be the arbiter so far as itself is concerned as to what it thinks, but is also to determine what a series of very distinguished authors—they may be distinguished as well as the porn people—may think, we shall be putting a local authority in an absolutely impossible position. Therefore, I think that when the noble Earl comes to reply to this debate he must say that he will clarify this point. We cannot have local authorities left in the position of censors not only of themselves but of everybody else as well. We must have clarification on that point.

Lord Hutchinson of Lullington

the noble Lord, Lord Jenkins, has put his finger on the point. The noble Lord, Lord Boyd-Carpenter, said that the television viewers will be impressed because the Committee has tried to get it right. That is exactly what the Committee have not done. They have tried all afternoon to get it right and have got it wrong.

I will give the Minister an example and ask him to tell the Committee what will happen. Suppose that a local authority is supporting a theatre which puts on a play which depicts a homosexual relationship which in fact is depicted as being successful and happy and in every way as good as any heterosexual relationship. Suppose that that is the message of the play. A councillor says, "This theatre is putting on a play which in my opinion promotes homosexuality because it makes it equal to heterosexuality, and that in my view is wrong and is promoting homosexuality." The other councillors say "Why do you say that?" He says, "In the Bill it says that I may draw any inference that I like from what goes on and the inference I draw is that this playright is promoting homosexuality".

Will the Minister tell the House whether in those circumstances this clause here, as amended, means that if those councillors come to the conclusion that that playright is intending to promote homosexuality however good a play, the authority will be perfectly entitled to withdraw their subsidy and therefore this is censorship by the back door? I should like the Minister to tell me if that is correct.

Lord Henderson of Brompton

I should just like to answer the right reverend Prelate with regard to the word "homosexuality". That point was raised in the earlier debate. It was raised by myself, among others; and I described homosexuality as an abstract concept which meant nothing. I very much take the point made by the right reverend Prelate, and I give notice to the Minister that I shall be moving an amendment to delete "homosexuality" and to put in "homosexual acts" or words to that effect at the next stage of the Bill. I am happy to see the right reverend Prelate nodding, and hope that I may have his support when I come to that amendment.

The fact that this amendment has been so widely criticised is yet another instance of the rush and hurry in which this whole business has been put before Parliament. This amendment was tabled late on Friday. Nobody on Friday could get hold of it. It was circulated at the very earliest on Saturday morning. If one happened not to be at home, or to live far away, one did not receive a copy until one arrived at the House this afternoon. And the matter is to be debated this afternoon. That is not treating the House properly. It is merely a continuation of the rush and hurry with which this Bill was pushed through another place. I know that the noble Earl very kindly sent me a letter to the effect that he was tabling this amendment on Friday, and it was courteous of him to do so. However, in thanking him for doing that, surely it is an indication that he admits himself that it is very late in tabling an important amendment and that he found it necessary to make that explanation to me as one of the signatories to Amendment No. 114.

While I am on the subject of rush and hurry (which I consider to be highly reprehensible on a matter of social sensitivity) I should like to add, as I said earlier, that the government amendments in another place were starred. That was denied by the noble Earl. I have a copy of the proceedings for Standing Committee A in front of me. It is dated 8th December 1987. I see, if it is worth putting before the Committee, that the amendment was starred on that very morning of 8th December; that is, the last day of the Committee proceedings. However, because the amendment was taken at the afternoon sitting, it lost its star. I ask the Committee whether that is not pushing things rather hard. Is not the noble Earl pushing us hard in this place by producing this amendment late on Friday night? I do not consider that this is the proper way to treat Parliament on a socially sensitive issue. All I shall do at the moment is reserve my right to bring forward an amendment to the word "homosexuality", which I consider to be totally unacceptable.

I follow on from the noble Lord, Lord Houghton of Sowerby, who asked whether it was possible unintentionally to promote. I should like to ask a further question. If "intention" is to cover "publish" as well as "promote", how can you unintentionally publish something? The noble Earl, Lord Stockton, has experience of publishing, and I see that he is in the Chamber. How is it possible for him or anyone else unintentionally to publish something? I see that he is shaking his head; so it is not a possibility. That is another indication of the absurdity of this amendment which has been pushed through in such an unseemly rush.

Lord Airedale

If you substitute "likely to promote homosexuality" for "intended to promote homosexuality", you substitute the judgment of the court for the opinion of the local authority. Perhaps that is a safer way of dealing with the matter.

The Earl of Caithness

I am grateful for the suggestion of the noble Lord, Lord Airedale, because it is to the courts that we look to draw what inferences they wish on the example put forward by the noble Lord, Lord Hutchinson of Lullington. That means of course that the courts can take into account all the relevant circumstances in determining the purpose of the local authority, not just what the authority claims to be its purpose.

As I believe I explained at some length on Amendment No. 114, what we are aiming to do is reach those local authorities that have abused the situation that has always been held by local authorities and who have in the recent past promoted homosexuality; that is, giving it a standing over and above the standing that is given to similar matters.

I know that the noble Lord, Lord Gifford, was not here earlier, and that I fully appreciate; but I covered the point he made in that the intention of the Government certainly is not to ban the literature and the plays to which I believe he refers. However, he has raised a point which I should like to look at in some detail. As I understand it, the point is to catch the local authority on this; but he has perhaps raised a query which I should look at between now and a later stage of the Bill.

The right reverend Prelate the Bishop of Manchester asked about the vagueness of "homosexuality" itself. He asked about the abstract concept. We believe that the word "homosexuality" is a useful and clear way of referring to all three aspects. That covers the point that the noble Lord, Lord Henderson of Brompton, will come to in a moment.

Some local authorities have been concerned to expend taxpayers' money on promoting positive images of homosexuality. That is the abstract concept. Others have been concerned to ensure that homosexual relationships receive a degree of support and assistance not necessarily available to other relationships. Other authorities in recommending books which set out to explain the details of homosexual activity seem to want to encourage such acts. The word "homosexuality" is therefore a convenient way to cover all aspects of the problem.

At this stage I hope that the Committee will accept the recommendation of the Government on the proviso that I shall look at the point that has been raised. If I am wrong, or it needs tightening up in the way that the noble Lord, Lord Gifford, suggests, we can come back to it at another stage.

9.45 p.m.

Lord McIntosh of Haringey

The Government have dug themselves into a pit, and every time the Minister wriggles he sinks deeper into the mire. For the first time he has attempted first of all to define "promote". He says that "promote" means to say that homosexuality is something over and above heterosexuality. The Minister has never said that before and it is an interesting thing for him to say. It goes flatly counter to common English usage, and it certainly demands more justification than it has had from the Minister tonight. He is now attempting to justify the use of the word "homosexuality" by defining the different objectives which local authorities may have in, as he describes it, promoting positive images. There again the Minister has got himself into very deep trouble because homosexuality as an abstract concept is not an adequate way to look at these various aspects of homosexual behaviour, and homosexual acts including the representation of homosexual behaviour.

Obviously with his undertaking to my noble friend to look at the question again, it would be inappropriate for the Committee to pursue him now. The Minister will find himself in very much greater difficulty at the Report stage than he anticipates if he believes that the Government can get away with the present wording, because they cannot.

Baroness Seear

In fact the Minister is playing Humpty-Dumpty is he not? "Words mean what I want them to mean" said Humpty-Dumpty, "neither more nor less".

On Question, amendment agreed to.

Baroness Cox had given notice of her intention to move Amendment No. 116ZB: Page 28, leave out lines 20 to 23 and insert— ("(b) permit the teaching or use of any material which promotes homosexuality in any maintained school;").

The noble Baroness said: I have already spoken to this amendment, and I shall not detain the Committee any longer in speaking further this evening. I am most grateful to my noble friend the Minister for his undertaking to take this amendment away and consider it. On that understanding, I shall not press it further this evening. I beg leave to withdraw the amendment.

[Amendment No. 116ZB not moved.]

Lord McIntosh of Haring had given notice of his intention to move Amendment No. 116A: Page 28, line 28, leave out ("treating or preventing the spread of disease") and insert ("care, counselling or health education in relation to Aids or other diseases").

The noble Lord said: I spoke to this amendment in the debate on Amendment No. 114. I listened very carefully to the reply from the Minister in which he indicated that the amendment was perhaps narrower than I intended it to be. In the circumstances, it is better that I do not move it.

[Amendment No. 116A not moved.]

Lord Peston moved Amendment No. 117: Page 28, line 29, at end insert ("or the stocking and lending of works relating to homosexuality in the normal discharge of the functions of a public library or the library of an educational institution.").

The noble Lord said: The remarks I have to make about Amendment No. 117 more or less cover Amendment No. 120, so with the permission of the Committee, I assume I shall not have to speak twice.

The general position that I hold is the one that I took during Second Reading, and which has been reinforced by listening to the debate we have had today. The clause is essentially nonsensical, and that seems to me to be amply confirmed by the debate. It is in the nature of things in Committee that one only discusses the question of a clause standing part of the Bill after discussion has taken place on the amendments to the clause. Therefore I find myself in the intellectually unattractive position of considering amendments to a clause that I think is gibberish in the first place.

Nonetheless, because one has a duty in a fail-safe sense to try to do something to rectify the situation, it seems to me that the material in Amendments Nos. 117 and 120 is at least worth considering. As regards Amendment No. 117, after listening to the noble Earl it may well be that the provision is taken care of in his interpretation of the clause. Obviously I do not have a record, but I thought that he said that the words in the amendment would be in order, and that if the library were run normally but happened to contain books of a homosexual nature in one form or another it would not run foul of the law. If that is the case, obviously I shall not press the matter any further.

Again, a possible interpretation of what the noble Earl said could also cover Amendment No. 120, because that essentially relates to the normal operations of a library, and of teaching and so forth.

There are two possibilities. Either it is clear that all these matters are taken care of, and that that was what the noble Earl was saying (in which case I do not need to press the matter) or it is intended that it should be the case and that it is not clear, in which case it would be reasonable for the noble Earl to accept most of the amendments.

I wish to refer to the concept of a defence in any action. Not being a lawyer, if we pass the clause (people keep talking about the courts) I should like to have some clarification as to who would bring the appropriate action. I assume that the local authority would defend in such cases. But would the police bring the action? Would it be possible for parents to bring the action? What do the Government have in mind about that aspect of the legal side of the matter? Those are the points upon which I should like some reassurance. I beg to move.

Baroness White

I was also engaged in public business in the Principality earlier in the day, so I am not sure to what extent the Minister has covered the points raised by the noble Lord, Lord Peston.

It is some half century since I was on the staff of a public library. That library was not in this country but in New York. It was the great New York Public Library on 42nd Street with which some of the Committee may be familiar. It is one of the great libraries of the world. It combines public responsibility and private beneficence, which ought to appeal to the Government. I have kept in touch, although distantly, with the profession of librarianship. I ask the Minister to recognise that there is considerable anxiety among librarians as to precisely where they will stand. It is essential that somewhere in the Bill we have the statement that the noble Lord, Lord Peston, has mentioned, which would leave the matter in no doubt.

We all know the pressures under which public and educational libraries work these days. One needs only one difficult client to make one's life a misery. One needs a clear statement as to what action is proper and permissible in the eyes of the Bill's promoters, and what is not. I do not want to labour the point but it is a serious one which affects an important profession. We have had representations, and before the Bill leaves this place we must secure absolute clarity on the issue.

Lord McNair

In general, I support both the amendments, but I have niggling worries about them, which suggests to me that it might be better if they were withdrawn tonight and introduced later.

The worry about Amendment No. 117 is that it is awkwardly attached to the clause as it stands. If it were accepted it would read: Nothing in subsection (1) above shall be taken to prohibit the doing of anything for the purpose of treating or preventing the spread of disease or the stocking and lending of works relating to homosexuality etc. The therapeutic and the literary do not seem to me to go in one subsection. I would urge the noble Lord, Lord Peston, to bring this in again later as a separate subsection.

When we get to Amendment No. 120, since the noble Lord has spoken to both amendments, I take it that his intention is that any of paragraphs (a), (b), (c) or (d) should be a defence. If that is his intention, ought there not to be an "or" after (a) and (b)? As I read it at present, the defence would have to consist of (a) plus (b) plus either (c) or (d). I do not think that is what he meant. This might be better given a little more thought and perhaps discussed in further proceedings.

Lord Hutchinson of Lullington

I should like to support the amendments, particularly Amendment No. 120. Perhaps I might ask the Minister why there should not be a defence provided. The Government have reduced support of material which may show homosexuality favourably to the level of the law of obscenity. Anyone who is charged with an offence of obscenity has a statutory defence. Surely, here, there should also be a statutory defence. If you are charged with obscenity but it can then be shown that the work has great artistic merit, even though it may be obscene, it will not be caught by the legislation.

Suppose there is a work of the greatest possible artistic merit which also promotes homosexuality. Is a conviction inevitable? If a conviction is inevitable, then are we not right in fearing, as we have said throughout this debate, that this clause is stark censorship through the back door?

Lord Campbell of Alloway

I oppose the amendments. At this hour, I wish to make only one point: why should the courts be encumbered with juridical imponderables such as the literary merit, the pedagogical need and what is incidental to principal content, and what is essential to completeness of a work of learning or reference? These concepts render the prohibition in Clause 28 totally unworkable. They dilute the whole essence of the prohibition and, in view of what my noble friend the Minister has already said this afternoon, they are surely unnecessary.

As to the proceedings, as I understand it civil proceedings may be instituted; but I am open to corrrection. The noble Lord, Lord Hutchinson, referred to "conviction" which presupposes criminal proceedings. I understood that this was enforceable in the civil jurisdiction.

Baroness White

Can the noble Lord explain to the Committee, if he were a librarian having to work out the purchasing list for a library how he would feel about the remarks which he has just made?

Lord Campbell of Alloway

I have made my point and I do not think the Committee would wish to hear any further from me at this stage.

Lord Hutchinson of Lullington

In answer to the noble Lord, perhaps it was a slip of the tongue to use the word "conviction". I mean finding the offence proved. But is the noble Lord saying that literary merit can have no relevance whatever under this clause?

10 p.m.

Lord Monson

Having made it clear earlier that I broadly support the Government on Clause 28, I urge them to give sympathetic consideration to Amendment No. 120. I am not so happy about Amendment No. 117.

By no means all the fears expressed from the Opposition Benches are well founded, but some of them undoubtedly are. I think that acceptance of Amendment No. 120 either as it stands, or in slightly modified form, will go a very long way to meeting these legitimate concerns. Let me also point out in favour of Amendment No. 120 that it is more tightly drawn than Amendment No. 114, which was defeated, and that only works of literary merit as opposed to those works which merely have a literary purpose are exempted. That would make it clear beyond doubt that those recommending works by Oscar Wilde, E. M. Forster, Proust and others have nothing to fear.

Lord Trafford

I take the point in worrying about this amendment, mainly with regard to its wording— I understand fully the intention of the noble Lord, Lord Peston, in moving his amendments—and I share the anxieties of my noble friend Lord Campbell of Alloway about Amendment No. 117. As regards Amendment No. 120, in view of what was said in this afternoon's debate I wonder whether it is necessary at all because surely there will be no proceedings taken here. The true answer to the question how one would act as a librarian is that if one is as a librarian carrying out one's proper function and duty, which is to get a proper selection of books including those of literary merit, one would continue to select such books. I do not believe that under this kind of provision, which after all is only a restriction on local authorities, librarians would have anything to fear. I am sure we shall hear again from the Minister—perhaps I misheard him earlier—that that fear is without any grounds.

Lord Henderson of Brompton

There should not be any doubt at all, but the fact is that there is a fear. There was an unsuccessful attempt made in Amendment No. 114 to do something of this kind and it is very valuable that the noble Lord, Lord Peston, has brought in Amendment No. 120, which I consider to be rather better though I should not be willing to pawn its worth.

There is quite a lot to answer for. The noble Lord, Lord Campbell of Alloway, was asked two questions which by his silence he does not seem able to answer. Perhaps the noble Earl, Lord Caithness, will do so in his place.

I hope that the Minister will take this matter very seriously and consider whether something could be brought forward at another stage to meet the genuine concern which the noble Lord, Lord Peston, has put forward. At the same time, refer once again to the fact that the only government amendments in the House of Commons were starred. The only starred amendments on this occasion are government amendments. If the Minister is going to table any amendments on Report, will he please make sure that they are not starred as well?

Lord Campbell of Alloway

I thank the noble Lord, Lord Henderson of Brompton, for his charming courtesy and for the assumption that because I do not take up the Committee's time at this hour I am unable to answer the question and that I have not the slightest idea what I am talking about! But I shall not proceed any further.

The Earl of Caithness

The noble Lord, Lord Peston, has proposed a specific exemption in Amendment No. 117 for the stocking and lending of works relating to homosexuality in the normal discharge of the functions of a public library or the library of an educational institution. In his speech he quite rightly referred to the fear of those in the library world that the normal functions of public libraries would be constrained as a result of this clause.

We have debated at some length in the context of the earlier amendments the various fears about the effect of the clause. I have made it clear that we believe those fears to be misguided. I would only reiterate what my noble friend Lord Trafford has just said on that. I can assure the Committee that it is no part of the Government's intention to inhibit local libraries in their decisions on which books to stock. We recognise that local authorities are under a duty to provide a comprehensive and efficient library service and that they may wish to stock a range of material about homosexuality dealing with homosexual themes or written by homosexual authors.

In our view, Clause 28 does not stop them doing so unless they are setting out intentionally to promote homosexuality. The amendment is, in the Government's view, therefore unnecessary. It is no part of a local authority's role to promote homosexuality. Our amendments make it absolutely clear that it is only the deliberate promotion of homosexuality by local authorities that would be affected.

Turning to Amendment No. 120, again, we do not accept that it is a legitimate defence for a local authority alleged to have contravened the prohibition that a literary work used by the author or made available to the public by the authority also served a legitimate purpose.

I am happy to reassure the noble Lord that Clause 28 would not prevent local authorities from making available literary works in any of the circumstances specified in his amendments so long as it was no part of their purpose intentionally to promote homosexuality. I come back to that theme, which we have been trying to get across to the Committee as being the sole purpose of the clause. It is for that reason that the Government would not wish to sanction any defences for activities with that specific purpose, which would be the effect of the amendment.

The noble Lord asked a specific question regarding who would be able to bring the action. Any ratepayer, elector or anyone affected by the authority's decision could seek judicial review of that decision. That could cover a parent in the case of a decision affecting a school. In any event, such a party would need the leave of the court, as the noble Lord, Lord Hutchinson, is fully aware. He asked me whether a conviction would be inevitable. I "tangled"—I use the word in inverted commas—with the noble Lord on the Criminal Justice Bill, so he is aware that I cannot give him a straight answer as I have not had the legal training that he has. Again, it would depend on whether the local authority was seeking intentionally to promote homosexuality. That would be the matter at which the court would look.

To answer the noble Lord, Lord Peston, further, the authority's auditor could use his power to seek a declaration from the court that expenditure is illegal under the clause.

Lord McCarthy

Before the Minister sits down, perhaps I may make sure that I have understood him. Is he saying that masterpieces such as the first 138 sonnets of Shakespeare or large parts of the Iliad, if found by a court to promote homosexuality, could not be issued by a public library?

The Earl of Caithness

No. I am saying that if the local authorities put a range of materials in their libraries, we do not wish to affect them with the clause. If a local authority goes out of its way deliberately to promote homosexuality, that is a matter of great concern.

Lord Peston

Perhaps I may ask for one final clarification. I thank the noble Earl for his clarification on the matter of who may bring an action. However, I am even more confused now. Let us assume on the one hand that there is an argument about a certain authority promoting homosexuality. Assuming that, does that not bring into question everything that the local authority is doing? Therefore, as my noble friend Lord McCarthy has said, the issue of Shakespeare's sonnets would arise. One is arguing in a sense that the authority is promoting a positive policy and defying everybody. Therefore, how is one to know that those particular books are not connected with the promotion of homosexuality?

It seems to me that the Minister is not fully aware of what he has opened up and the enormous dangers he is presenting to libraries, schools, and so on. I do not wish to press the matter too strongly. However, I believe that he ought to think about the matter instead of simply rejecting it. I think that the matter is more serious than he appreciates.

The Earl of Caithness

I take the arguments and theories of noble Lords opposite very seriously indeed. If such a matter comes to court for judicial review—and leave must be given for that to happen—and the court looks at all the circumstances, it then has to assess the intention of the local authority. If the authority did nothing other than provide on all its shelves books which were for the promotion of homosexuality, I dare say that under the clause it would not stand a terribly good chance. However, I should not wish to prejudge any situation. As I have said time and again, if there was a wide range of books covering a variety of subjects, we would not wish to catch that in the clause.

Lord Hughes

When the Minister answered Lord Peston's point about who would raise the action he indicated that any ratepayer could apply for a judicial review. Then he went on to talk about the powers of the auditor, which seemed to be a fall-back position. If no ratepayer wanted to involve himself in seeking a judicial review, there would still be this other matter. Am I right in thinking that when he talks about the powers of the auditor he is referring to the new clause in Amendment No. 120BA and the new schedule after Schedule 3 which empowers the auditor to issue prohibition orders against an authority which is infringing any of the provisions in the Bill? If so, what happens in Scotland which is specifically excepted from the new clause and the new schedule?

Lord McIntosh of Haringey

I hope that the noble Lord, Lord Campbell, will allow me to speak first. He has had two or three goes already on this amendment. It seems that the longer the Minister seeks to answer questions the more difficulties he encounters. He has now raised a completely new concept; namely, the idea that a library has a range of books on different subjects and that if the library consists entirely of books about homosexuality it would be subject to challenge, but not if homosexual books are only a part of its general range. Of course none of that appears anywhere in the clause, but that is the interpretation which the Minister offers us.

Let us take a halfway house example. Many bookshops have sections on feminist books, as do many libraries. Many of the feminist books are lesbian feminist books. If they are put in a position of prominence in a public library, is the local authority at risk? I know of bookshops which have shelves and sections specifically for gay and lesbian books. If there is a section of that kind in a public library, is the local authority at risk?

There is no escape for the noble Earl from the difficulties that he is making for himself in accepting this clause and the way in which it has been phrased. Every time that he says something more he makes it increasingly impossible for there to be an acceptable interpretation of what the Government intend by this clause.

Lord Campbell of Alloway

From this side of the Committee we do not have the impression at all that the more the Minister says the more difficulty he gets into. One has the impression that noble Lords opposite have created difficulties which on examination do not have substance. I am not much given to supporting Ministers but on this occasion my noble friend the Minister has acquitted himself logically and well on this subject and is in no difficulty at all.

May I ask a question for clarification? My noble friend the Minister said that the prohibition in Clause 28 was enforceable by judicial review. Then he went on to say "or by a declaration". As I understood it, the normal process of enforcement would be the civil process, that is to say, in England applying in the Chancery Division for a declaration that the conduct was prohibited. One would not be limited to a judicial review process. The civil courts would have the power in an appropriate case even to award damages. That power would be distinct from any powers of the auditor to which the noble Lord has just referred. My understanding is that in the ordinary way if one were consulted about a prohibition, whether or not there was a breach, one would issue a summons or a writ in the High Court seeking a declaration and, if appropriate, in very rare cases damages. Is that the right approach?

Lord McCarthy

Before the noble Earl answers that question could he simply tell us whether it is a private Mother Grundy who brings the case or a government Mother Grundy? Is it a civil liability or criminal liability?

10.15 p.m.

The Earl of Caithness

I was surprised by what the noble Lord, Lord McIntosh, said about my earlier comments. All I did was repeat what I had said, admittedly in slightly different words. I thought it would be wrong for me to repeat to the Committee exactly the same words that I had used before. However, let me repeat them for the Committee's sake. I am sure that the noble Lord inadvertently did not hear me.

We recognise that local authorities are under a duty to provide a comprehensive and efficient library service and that they may wish to stock a range of material dealing with homosexual themes, or written by some homosexual authors. In our view, Clause 28 does not stop them doing so unless they are setting out intentionally to promote homosexuality. That is exactly what I said to the noble Lord a moment ago. For him to say to me that I have changed my mind and have dug a deep hole is nonsense. It surprises me that the noble Lord has said it.

To answer the noble Lord, Lord McCarthy, I think that I am right in saying that this is a civil matter. I say to my noble friend Lord Campbell of Alloway that I understood it was through judicial review that one sought the decision; but perhaps I should check on that.

Lord Hutchinson of Lullington

The noble Earl has not answered the question on Amendment No. 120. This sword of Damocles is hanging over the council: that if it supports this play then it may be said that it is promoting homosexuality because it is supporting an organisation which is putting on a play which is promoting homosexuality. That authority will then withdraw its funding because it has hanging over it the sword of Damocles that any member of the public or the auditor may say, "Take them to court. They are promoting homosexuality".

One wishes to know whether in those circumstances the local authority can sit back and say, "This is a play of clear, artistic merit. We do not care a damn that it is promoting homosexuality. We are perfectly safe. We can say to the other councillors that we are perfectly safe because there is here a work of literary merit and that is what makes the difference"; or is literary merit irrelevant? If it is irrelevant, then I ask the Minister again to answer the charge that this is censorship.

Lord Boyd-Carpenter

The noble Lord, Lord Hutchinson of Lullington, said on an earlier amendment that we were not even trying to get things right. I would certainly agree that that observation applied to his own contribution. However, Members of the Committee generally are trying to get this right. What the noble Lord, Lord Hutchinson, has just said confirms what I said a moment or two ago about his attitude. If a play is put on which is intended to promote homosexuality, I think that it would not be, and should not be, a defence that it was also of high artistic or literary merit. If the purpose was the promotion of homosexuality, literary merit is and should be no defence. If a play is put on in the general way and is not intended to promote homosexuality, it is all right.

The final safeguard is the view of the court. Here we come shortly to another amendment of my noble friend. If the court thinks that a play or book, or whatever action is involved, is intended to promote homosexuality, the court will find against the authority financing it. However, if the court finds that the main purpose of the play is the maintenance of a high literary standard and that the homosexual aspect of it is of less importance, it will not find that the purpose is the promotion of homosexuality. Therefore it seems to me that the noble Lord is making extremely heavy weather on a rather bad point.

Lord McIntosh of Haringey

We must be grateful to the noble Lord for coming clean. He rather reminds me of the mother whose child comes home and uses bad language. In defence the child says "Why mustn't I use those words? Shakespeare uses them". The mother says, "Well, you mustn't play with Shakespeare any more."

Lord Boyd-Carpenter

Is the noble Lord really saying- it is interesting because I think he has unconsciously come clean—that one can put on, shall we say a play, the clear purpose of which is to promote homosexuality and hope to get away with it because it is of high literary quality? Is that what the noble Lord is saying?

Lord McIntosh of Haringey

We have consistently questioned whether the phrase "to promote homosexuality" has any definable meaning, and we persist in doubting that. There cannot be an answer—not that we are unwilling to give an answer—to the noble Lord's question because the terms of that question are inappropriate. If his question, properly interpreted, is whether a play of high literary merit is to be banned, although it portrays homosexuality as an acceptable or as a "pretended family relationship", our answer would be that high artistic merit would defend it from the charge of promoting homosexuality and it ought not to be banned. If that is not the Government's position, the Government have really committed themselves, should they accept the arguments of the noble Lord, Lord Boyd-Carpenter, to a position of censorship of the worst kind that I have heard in this Chamber in the time that I have been here. It raises much greater doubts about the sanity of the Government in pursuing the clause than I should have thought possible.

Lord Boyd-Carpenter

It is the noble Lord who has committed himself, not the Government. He has made it clear—and it is useful to have got this clear—that one can put on a play deliberately designed to corrupt young people—

Noble Lords


Lord Boyd-Carpenter

—deliberately designed to corrupt young people and get away with it if it is written by someone whose literary skills are adequate to enable it to claim high artistic or literary character. It is extremely interesting to have extracted that from the noble Lord. It has taken a good many hours to do it, but the truth is now out.

Lord Campbell of Alloway

Yes, at long last one knows what one is facing. One realises why all the speeches on Amendment No. 114—which I gather was an Arts Council amendment proposed by the noble Viscount and seconded by the noble Lord, Lord Henderson of Brompton—were not in favour of the amendment; they were even against the amendment. They were against any interference that was in favour of the motion, That the clause shall not stand part. The motivation has just been explained and we can read it in Hansard tomorrow.

Lord Monson

I can understand the reservations of the noble Lord, Lord Boyd-Carpenter, about paragraph (a) of Amendment No. 120. I am not sure that I entirely agree with him, but I can understand his reservations. Does he not agree that there can be no possible objections to paragraphs (b), (c) and (d) of Amendment No. 120?

Lord Boyd-Carpenter

I am not dealing at the moment with Amendment No. 120. I was dealing with the one specific point as to whether a play or any other publication designed deliberately to promote homosexuality, and thereby to corrupt young people, should get away with it because it had high literary merit. I confine myself to that point and resting on that, I feel that the other parts of Amendment No. 120 do not arise, although I demur to the suggestion at the end that if the reference were educational, that perhaps would not matter. It is a question of the intention.

Lord Hutchinson of Lullington

I invite the noble Lord to withdraw the phrase "to corrupt young people". It was I who asked the question. I never mentioned anything about corrupting young people. Young people did not come into my question. The question that I asked was whether a play which incidentally promoted homosexuality or put homosexuality in a favourable light would be caught by this clause if it had high literary merit. Corrupting youth has absolutely nothing to do with it. The noble Lord has misconstrued the question which I put. I should very much like him to withdraw those words.

Lord Boyd-Carpenter

I was not in fact referring to Lord Hutchinson of Lullington's point; I was dealing directly with his noble friend on the Front Bench to whom I directed the question. Therefore, I have nothing whatever to withdraw in respect of the noble Lord, Lord Hutchinson of Lullington, although I felt that his speech tended, as they so often do, to miss the point.

I am dealing with the point, which is now clearly established, that it is apparently the view of the Opposition that however damaging and however effective in promoting homosexuality a publication may be, it should get away with it if it can demonstrate high literary merit. That is all. I think that is a point of which not only the Committee but also people outside may take note.

Lord McIntosh of Haringey

I am directly challenged. I am content to let Hansard record correctly what was said. I made no reference to the corruption of young people, as the noble Lord perfectly well knows. Those are entirely his words. I do not care whether or not he withdraws them. They bear no relationship to anything that I said. I also made it absolutely clear that in our view the phrase "promote homosexuality" has no definable meaning and therefore cannot be used effectively in legislation. I will not be led into the trap of trying to use his words and the Government's words to define our point of view.

We are saying that many works of art and literature throughout the ages have portrayed homosexual relationships as being acceptable, admirable, happy and worthwhile. Nothing should be done in this Bill which would make it impossible for local authorities to publish, promote or make available such works of art. Anybody who says otherwise is going back not only on the last few years of legislation but also on hundreds of years of civilisation.

Lord Trafford

Perhaps the noble Lord will answer the question. It seems to me that he answered his own question in his choice of words and so did the noble Lord, Lord Hutchinson of Lullington.

If I remember correctly, Lord Hutchinson's question began with the words, "if a play is shown which incidentally contains a large amount of homosexual material" or words to that effect. By using the word "incidental" as opposed to "intentional" it seems to me that the noble Lord, Lord Hutchinson, answered his own question and that he was talking about an entirely different type of play from my noble friend Lord Boyd-Carpenter. He was talking about an ordinary play with perhaps a considerable amount of homosexual content which was, to use his word, "incidental".

In exactly the same way a few minutes later, the noble Lord, Lord McIntosh of Haringey, referred to a work of art. I assume that he was referring to a play. If those are the reasons why a play is put on, then it cannot fall foul of this particular clause. I am giving an interpretation which I believe I have heard come from the Front Bench on this side of the Committee all the way through; namely, that if it is not the obvious intention of a particular work of art or play to promote homosexuality, then it does not fall foul of the clause. From the way in which they phrased their questions, I should have thought that both noble Lords had answered the point.

The other point which we were trying to pin down was made I thought a little prematurely by my noble friend Lord Boyd-Carpenter. He was referring to plays that one might say were homosexual or heterosexual. If they were heterosexual I suppose they might come under the term "blue film" or "pornography". This is the obverse side of that particular coin. No matter what sexuality it was promoting, it probably would have been obscene. But where it is a work of art and where its primary intention is not to promote homosexuality, even if it is portrayed in the book or the film, then it would seem to me that it is self-evident from all that has been said on this side of the Committee that it does not fall foul of this clause.

10.30 p.m.

Baroness Blatch

I rise to support the point made by my noble friend Lord Boyd-Carpenter. Earlier in the debate it was said that laws were made because of the authorities or individuals who abuse. If one were to think of the worst kind of example of that to which the noble Lord was referring, it is using great works of art not as such but to promote homosexuality. In other words, the works of art are the focal point of the teaching or the influencing, and I include young people. It does not include great plays which incidentally contain homosexual people or descriptions of homosexual acts. There are great works of art which are there to be enjoyed, and there is no intention on the part of the Bill, or on the part of those who support Clause 28, to prohibit that from continuing. However, we have heard today of examples of some individuals within the educational system or some local authorities who would specifically use selected parts of the works of art to exploit, promote and further the cause of homosexuality. That is what is to be outlawed by the Bill and not the works of art themselves.

Lord McCarthy

Before the noble Baroness sits down, I should like to say that it is not a question of selecting some works of art. The first 138 sonnets of Shakespeare are a love poem from one man to another. Would she catch that or not?

Baroness Blatch

With respect, I would advocate that my children and anyone else's children should continue throughout the future years to study the beautiful pieces of literature; the Shakespeare sonnet. I would absolutely and violently disagree where somebody uses the sonnets to advocate and promote homosexuality. That is not how I expect them to be used or taught. It is in the hands of the person influencing somebody else.

Lord McCarthy

It is all right if it is Shakespeare but not somebody else.

Lord Hughes

I should like to return to my little play within the play and the origin of the matter in respect of an offence. The Minister said to his noble friend Lord Campbell of Alloway—who was about to leave but has now stopped—that he thought it would be judicial review. I think that the Minister is right about that matter. At the bottom of page 10 is set out the power of the auditor to apply for judicial review in the new schedule. I should like to be certain as to the position of Scottish local authorities in respect of that matter. This schedule, and the clause which refers to it, are specifically stated to apply only to England and Wales. I do not expect the Minister to answer my question, even though he has just been joined by the noble Earl, Lord Dundee. However, in order that I might know whether I need do anything at the next stage, I should appreciate it if the Minister would write to me outlining the Scottish position.

The Earl of Caithness

I shall be happy to write to the noble Lord on that particular point because I think that it would be the right way to deal with the matter.

I should like to try to summarise the debate, if that is remotely possible. When a local authority, which carries out its normal functions, decides to stock books, it can stock books with homosexual themes. If a local authority decides to put on plays, it can put on plays with homosexual themes. The question that the noble Lord, Lord Hutchinson of Lullington, asked me is perhaps the question that the local authority should be asking itself. It needs to decide what its purpose is in either stocking the books or funding the play. If its purpose is to fund a work of literary or artistic merit, then its purpose will be legitimate.

Lord Peston

I must apologise. I thought my two amendments were very innocuous and I thought they would be dealt with very rapidly; but I am relatively inexperienced. Of course I agree, en passant, with Lord McNair that there are some disjunctives missing from the clauses, but that is not a major problem.

I believed that the difference between the noble Earl, Lord Caithness, and myself was that I took him to be saying that my worries are taken care of implicity in the clause as put forward. I am saying that I am doubtful and should like it made explicit. I was hoping for a more positive response from him, but it looked early on as if one could agree to differ. However, given what several Members on his side of the Committee said, I thought their remarks were disastrous from almost every point of view because they certainly lead to a completely different conclusion and lead me to the view that especially what I say in Amendment No. 120 is absolutely necessary. Regretfully, I cannot withdraw the amendment and I must divide the Committee.

10.37 p.m.

On Question, Whether the said amendment (No. 117) shall be agreed to?

Their Lordships divided: Contents, 28; Not-Contents, 42.

Division No. 3
Airedale, L. Hutchinson of Lullington, L.
Amherst, E. Jenkins of Putney, L.
Ampthill, L. Kilbracken, L.
Birkett, L. McCarthy, L.
Cocks of Hartcliffe, L. McIntosh of Haringey, L.
David, B. Mackie of Benshie, L.
Dean of Beswick, L. McNair, L.
Ewart-Biggs, B. Manchester, Bp.
Gifford, L. Nicol, B. [Teller.]
Graham of Edmonton, L. [Teller.] Peston, L.
Seear, B.
Grey. E. Tordoff, L.
Henderson of Brompton, L. Turner of Camden, B.
Houghton of Sowerby, L. White, B.
Hughes, L.
Beloff, L. Johnston of Rockport, L.
Belstead, L. Long, V. [Teller.]
Blatch, B. Lyell, L.
Borthwick, L. Mackay of Clashfern, L.
Boyd-Carpenter, L. MacLehose of Beoch, L.
Brougham and Vaux, L. Mersey, V.
Butterworth, L. Morris, L.
Caithness, E. Norfolk, D.
Campbell of Alloway, L. Renton, L.
Carnegy of Lour, B. Saltoun of Abernethy, Ly.
Colnbrook, L. Sandford, L.
Davidson, V. [Teller.] Selkirk, E.
Dundee, E. Shannon, E.
Ferrers, E. Skelmersdale, L.
Glenarthur, L. Stockton, E.
Grantchester, L. Strange, B.
Halsbury, E. Thomas of Gwydir, L.
Harmar-Nicholls, L, Trafford, L.
Harvington, L. Trumpington, B.
Hesketh, L. Windlesham, L.
Hooper, B. Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.

10.44 p.m.

The Earl of Caithness moved Amendment No. 117A: Page 28, line 29, at end insert— ("( ) In any proceedings in connection with the application of this section a court shall draw such inferences as to the intention of the local authority as it sees fit.").

The noble Earl said: I have already spoken to this amendment. I beg to move.

Lord Airedale

Although this amendment was spoken to earlier, and although the Minister was kind enough to be sympathetic to a suggestion I made a short time ago, I ask him whether he really thinks that this amendment is necessary. It states: a court shall draw such inferences as to the intention of the local authority as it sees fit". You cannot look into the mind of a person or even that of a body corporate and get direct evidence of what was intended. All you can do is to infer somebody's intention from the way that they behave. The courts are doing this every day; they could not do it any other way. We ought to be careful not to clutter the statute book with matters which are not strictly necessary. I believe that the words of the amendment go without saying and are unnecessary.

Lord Hughes

I should like to make the same point as the noble Lord, Lord Airedale. If this amendment is not put in the Bill, would the judge be unable to draw such inferences as he thought fit?

The Earl of Caithness

On the best legal advice that I have available to me I am advised that this amendment is necessary to make it absolutely plain what inferences the court can draw when and if a case is brought before it. Contrary to what the noble Lord. Lord Airedale, said, my legal adviser on this—I must take the legal advice, not being a lawyer myself—says that these words are very necessary.

On Question, amendment agreed to.

[Amendment No. 118 not moved.]

Lord Jenkins of Putney moved Amendment No. 119: Page 28, line 37, at end insert— ("(4) Nothing in subsection (1) above shall be taken to apply to the production and/or presentation of a play within the meaning of the Theatres Act 1968").

The noble Lord said: In case the Committee is completely drowned with words by now, I believe that I should make it entirely clear that this amendment is not intended to contradict anything which the noble Earl has said from the Front Bench. It is intended to make quite sure that the intentions of the noble Earl are translated into the legislation. That is the object of this particular exercise; it is quite different from anything else that we have been discussing until now.

The amendment which was lost at an earlier stage was, as the Committee will be aware, promoted to some extent by the Arts Council. I had better come clean and say that this amendment is promoted by the Theatre Managers' Association, by the Society of West End Theatre Managers and by the Theatrical Managers' Association. They asked me whether I would agree to put forward an amendment which they felt was necessary not only in regard to their artistic requirements but also from their financial point of view.

Today, the supported theatre and the commercial theatre are closely intertwined. Most of the companies which operate throughout the country are members of either the Society of West End Theatre Managers—in the case of the great national theatres—or of the Theatrical Managers' Association in the case of the smaller companies. They put on shows which initially are quite often promoted by local authorities. Therefore they have an interest in this subject purely from a financial point of view.

They have not asked me to become involved with the niceties and difficulties into which the Arts Council got itself, but simply to ask the Committee to add these words on the assumption that the previous amendment would be defeated. Personally, I believe that it would have been necessary to add these words even if it had not been defeated. The amendment seeks simply to say: Nothing in subsection (1) above shall be taken to apply to the production and/or presentation of a play within the meaning of the Theatres Act 1968. That takes out of the situation what I believe it was never the intention of the Government to include—the performance of plays. I do not believe that to have been the object of the exercise at all; it arose, I believe, incidentally. It so happens that, among other things, local authorities finance theatrical productions. Sometimes they are also financed by the Treasury and by the Arts Council. Quite often, plays are financed by private enterprise. In fact we get what is a mixed economy operating together in the theatre. That is necessary because even as amended by the noble Earl subsection (1) states that a local authority shall not, (c) give financial or other assistance to any person for cither of the purposes referred to in paragraphs (a) and (b) above". The two purposes referred to in paragraphs (a) and (b) are, intentionally promote homosexuality or publish material intended to promote homosexuality". and promote the teaching of homosexuality and so on.

Paragraph (c) worries theatrical managers. There are a number of productions around the country at the moment which might conceivably be decided by a judge to be promoting homosexuality because they do not present it in a deleterious or tacky way. They might be regarded as being neutral on the matter. They might be regarded by some people to be promoting homosexuality. The situation is uncertain. It does not matter what the noble Earl's opinion is because it is not his opinion which will count. I ask the Minister not only to give us his opinion, but to say, "Yes, I am so sure of my opinion that I am prepared to accept your amendment," which merely provides: Nothing in subsection (1) above shall be taken to apply to the production and/or presentation of a play within the meaning of the Theatres Act 1968. All plays put on commercially in this country come within the meaning of that Act which covers the whole theatrical scene.

The opposition is widespread. My desk has been covered with papers. If I were to spread them out they would cover every seat in this Chamber. Not only the seats on which Members of the Committee are sitting, but all the others would be covered with letters from people who are sincerely worried about this issue. They see something happening here that we have tended to resist in this country. We have tried to avoid the use of monetary censorship. The Arts Council has always tried hard not to use the money that it distributes in a way which betrays a desire to influence what the play says but solely to give the money on its artistic merits.

The same principle applies to the man who is putting on a play commercially. If he thinks that someone is saying something interesting, he may want to put on the play. With help from the local authority, either directly or indirectly, he can put it on. Such a person may want to take over a play, which has already been put on elsewhere, and translate it to the West End. That is where the issue of intention comes in: intentionally promote homosexuality or publish material". or give money. How will the system work? Someone may see a play and say, "I think that this play is promoting homosexuality." By that time it may be in the West End, in a large town or anywhere else. Whose intention are we talking about? Originally, of course, it was the local authority's intention. By putting on that play, did the manager take on the local authority's intention? What about the playwright? Where does his intention start and finish? By taking on the local authority's intention and the playwright's intention is the manager automatically assuming a responsibility of his own? Does it become his intention?

Those matters are not sufficiently clear. However, they would all be clear if the noble Earl were to say, "Well, this is something we did not intend to enter into at all. It is not the object of the exercise. We had no idea that all these problems would arise and that people would be so seriously worried about them." So if the noble Earl will say, "I not only say that what I am doing here, what the Government are doing here, does not have this effect, but I will accept your amendment to show that we are confident that it will not have that effect", I think we shall be happy.

This matter is thought to be very important by people not only in the commercial theatre but in the theatre generally. The theatre is important in this country; make no mistake about that. It is not something which does not matter. It matters a great deal, more than many other things which we give value to. If the noble Earl cannot say, "I not only mean what I say but I'm prepared to support legislation", we shall have to press the matter further. I hope I have said enough to convince the noble Earl that what I am proposing here is something which he can accept, and that he will do so. I beg to move.

Lord Houghton of Sowerby

What about films? We have not mentioned films throughout the whole debate. It seems to me that local authorities are more likely to promote a film for these purposes than a play. I have a suggestion to make. If it is a film we might invite the services of the British Board of Film Classification. I notice that the vice-president of that board has been sitting here for hours. I dare not ask him whether he is here to see what classification his board would give to the video recording of our proceedings today. Would it be classified as available for general viewing, or would it be only for people over the age of 18 who would have to go to a sex shop for it? Or would it be for children between 15 and 18, but only under parental guidance?

It seems to me that to give all the refinements an expert body would be needed for an answer to this dilemma as to whether a work is free of taint. I would not suggest that local authorities should take a chance and produce a film and by calling it educational they would not go to the British Board of Film Classification at all. There is a law to prevent any display of genital organs in educational films, except under very strict conditions. So I think that anything that was called education which contained this unseemly content would fail to be classified as a lawful educational film.

Quite seriously, there is wonderful scope here for exploring aid in defining the various degrees of acceptability of films and plays. It seems that by the end of the day we shall have suppressed something, but I do not think we shall be very clear about what it is. I am only trying to be helpful. I am prepared to stay here all night as long as I can be helpful.

11 p.m.

Lord Birkett

I had intended to make a short and modest contribution in support of the noble Lord, Lord Jenkins, and I had no idea that as vice-president of the British Board of Film Classification I should be called upon at this late hour for technical advice on the classification of movies. In order to get that out of the way as swiftly as I possibly can, let me say that so far as concerns the proceedings of the Committee, should they be issued for sale as a video, there are a number of classifications to choose from. The most widely accepted and generally regarded as being totally acceptable is called U(C), which means universally acceptable and especially suitable for children. Whether one would dare to apply that to the proceedings of the Committee I should not dream of saying without seeing the film first.

To revert to the matters in hand today, should anybody, whether a local authority or anybody else, produce a film designed to promote, encourage, proselytise homosexuality, I should be very surprised indeed if my board gave it a certificate at all, of any sort. So I very much doubt whether that eventuality will arise. However, I have to say that I support the amendment of the noble Lord, Lord Jenkins of Putney, partly because I seem to have spent most of my working life connected with the theatre in one way or another—I love it and I still believe it to be one of the great glories of this nation—and partly for the slightly sentimental feeling that his amendment is beginning to look a little lonely at this time of night on the Marshalled List.

The noble Earl, Lord Caithness, has made a lot of reassuring remarks today about what the Bill is not intended to do, and how many people need not be alarmed about the effects of it; in particular, of course, the artistic community who are and were alarmed. It was for that reason that the Arts Council called for the legal opinion that it did and proposed through several of the Members of the Committee, particularly the noble Viscount, Lord Falkland, and the noble Lord, Lord Henderson of Brompton, Amendment No. 114. I was very sorry to see that disappear and rather surprised to see it find so little favour on government Benches. I think the artistic community has been worried.

It is all very well reassuring it about the intentions of the Bill and how it will not be caught by some of the more luridly imagined worries that come into its mind; but I do not think the artistic community is preternaturally sensitive about those things. We are dealing with an amendment now on the theatre. We have had one that touched upon libraries. The matter of artistic merit has been debated. We have had pedagogical merit debated. We have had a number of amendments, none of which seems to have found favour in the eyes of the Committee. So one after another little clauses have disappeared.

I put it to the noble Earl that if he would really like to dispel the worries of the artistic community at large about this Bill it is not beyond the wit of man and certainly not beyond the wit of the drafting expertise available to his department to put into the Bill at some stage a degree of reassurance in the very terms that he has outlined so clearly this afternoon which will in fact take the curse off what is seen as a very dangerous measure by the world at large and reassure in particular the artistic community. I recommend him to think very seriously about that before the next stage. In the meantime, I simply extend some warm support to the noble Lord, Lord Jenkins of Putney.

Lord Dean of Beswick

I rise at this stage to support the amendment moved by my noble friend Lord Jenkins of Putney. As I said, I wish to be very brief; but this matter is a worry that has developed from the previous exchanges regarding the possibility of prosecution of a local authority. I think the noble Lord, Lord Jenkins, in his brief remarks, referred to the way that theatre these days is financed, in some cases from a local authority and donations from businesses. That is how it works.

I am going back now to my days in Manchester when the local authority did make contributions from the rates to the Halle Orchestra, the Library Theatre, and the 69 Theatre. I put the point in a most constructive sense to the Minister. One of the theatres that was a beneficiary of some support from the local authority rate fund might promote and produce a recognised bona fide play that had homosexual undertones or depictions in it and then (as theatres do on some occasions for these plays or concerts in order to justify the donations made) they may distribute tickets to schools.

If some of the tickets that were made available were then distributed among sixth formers who then went along to see these plays what would be the situation? Would the local authority be liable to prosecution, but not the people who made the private donation? If that was the case, there would be the situation where the local authority would be treated quite differently and quite arbitrarily while the person or the company who made the private donation would be in no way involved. Is that not a rather strange way of applying what we are supposed to in this country—the even-handedness of the law as it affects everyone? I should like the Minister to answer that point because I do not think it is as hypothetical as some people in the Committee may think.

Lord Boyd-Carpenter

I declare an interest as a director of a company that owns a good many London theatres. Having said that, I make the simple point, in response to the amendment of the noble Lord, Lord Jenkins of Putney, that it would seem very odd to make an exception of the theatre as compared with every other activity. I do not yield to him in my admiration for the very high standard of the theatre in England today, whether owned by private enterprise or operated by local authorities. Although there may be some force in what he has said it would be a great mistake to make a conspicuous exception and a grant of special immunity from prosecution for the theatre, when all other activities would be exposed if they erred in that direction under the Bill.

Baroness Blatch

It is true that our briefcases are lined with correspondence on the subject. It is also true—I listened to Members of the Committee as they exchanged notes on who had heard from whom and about what—that that correspondence has come from a relatively small percentage of the community and almost entirely from homosexuals, with some exceptions.

Noble Lords


Baroness Blatch

Perhaps Members of the Committee on the opposite side of the Chamber have had more correspondence from people asking to support the Bill than those of us who have received correspondence urging us to oppose it. The bulk of my correspondence has been in terms of: "Please support Clause 28". However, I believe that Members of the Committee have all received the same letters from the same people. Very few letters have come in saying: "Please, do what you can to make sure that Clause 28 stays in the Bill."

I wish to refer to the 88 per cent. of people, as determined in a recent opinion poll, who are very concerned about the issue. Our responsibility is to address that concern. I am worried about the danger of going around the same arguments once again. At the end of the day, the debate is about proving an intention to promote homosexuality. That is what it is all about. If plays are put on in the normal way, the public go to see them and the intention is simply to show a play for the sake of showing a play, whether or not it is of high literary merit. There is no danger to that activity from the Bill.

Where there is an intention to promote homosexuality and that can be proved, there is something to be worried about. I cannot support the exemption because I do not believe that the people mentioned by the noble Lord, Lord Jenkins, are in any kind of danger. The Bill is concerned with the promotion of homosexuality which it is designed to outlaw.

Lord Hutchinson of Lullington

Is the noble Baroness saying that the authority takes the view that the play promotes homosexuality? That is what it is all about.

Baroness Blatch

I am saying that if the people putting on the play have the intention and purpose to promote homosexuality, then I believe that the motive is questionable. If the motive is simply to present a play to the public and no more than that—schools or theatre companies may be producing a whole season of plays—then there is no danger. The motive for putting on the play in the first place is the matter at issue.

Lord Dean of Beswick

I think the noble Baroness is wrong in assuming that, because the Minister has given the Government's view on the intention of the Bill, it becomes the law. In another place I sat on numerous standing committees both in opposition and in government. It was always made clear that court decisions were made on what was in an Act and not what the Government thought was in an Act. I have to remind the Committee that three times in the last Parliament Secretaries of State were taken to court for misinterpretation of Acts. Unless it is written into the Act, the court has no clear guidance on the law. It has to be written into the Act and not be in the Minister's words from the Dispatch Box, however good his intentions.

Lord Peston

Perhaps I may make one brief point, which follows on what the noble Baroness, Lady Blatch, has said. It has been bothering me all day. The suggestion has been made that opposition to Clause 28 stems primarily from homosexuals. To my certain knowledge, so far as concerns the arts, that is simply not the case, because the whole force of objection is coming from people who are heterosexual. That applies to the sciences as well. However, to judge it as opposition from a small pressure group is entirely erroneous. We ought to get that point on the record. The objections are not from groups asking for special privileges but precisely from other groups who say that they do not want that to happen.

Baroness Blatch

Many of my letters actually start with the phrase, "I am a homosexual". Perhaps I have had a different set of correspondents.

Lord Monson

Although I am still unhappy about certain aspects of Clause 28—even as it has been amended—I agree with the noble Lord, Lord Boyd-Carpenter, and the noble Baroness, Lady Blatch, that it would be quite illogical to exempt one medium and one only. Furthermore, I do not think that the clause as it stands is quite the threat to the theatre that the noble Lord, Lord Jenkins, and his supporters suppose. I dare say that they have in mind "The Romans in Britain" as one of the plays that might possibly be affected. "The Romans in Britain" does not promote homosexuality; but shows it in a most unpleasant light, so much so that it has precisely the opposite effect. I do not think that noble Lords need have any worries on that particular score.

Lord Henderson of Brompton

One of the things worrying the theatre is the fact that there will be two laws: a play will not be censored if it is not promoted by a local authority, but it will be censored if it is. That surely is an undesirable situation—to have one law for plays that are put on or promoted by local authorities, and another law for those which are not so promoted. It may be the very same play.

Let us consider the case of E. M. Forster's novel Maurice. That has been made into a film which could well be said to promote homosexuality. I myself believe that it does. In the view of many people it is a work of art. That film is freely shown in cinemas in the United Kingdom. However, suppose that it is shown in cinemas owned by local authorities. Those local authorities can then be taken to the courts for promoting homosexuality. That is merely another amendment which showed how ridiculous is the construction of the clause, and another reason for the noble Earl to take it back to his friends and ask them to reconsider it.

11.15 p.m.

The Earl of Caithness

I thought that the noble Lord, Lord Jenkins, was very ingenious in the way in which he introduced his amendment. He highlighted the answer that I would give him, which has been the fairly consistent answer that I have been able to give this afternoon. Then he said, "Get me off the hook; let us exclude theatres". Therefore, I have to repeat that the Government do not share the noble Lord's view that local authorities' funding of the theatre would be affected by Clause 28, except in circumstances in which a local authority, or a group which it was funding, set out deliberately to promote homosexuality.

A local authority wishing to stage or assist with the staging of plays as part of a programme designed to provide a wide cross-section of material for the general public need not feel constrained from doing so by this provision. Here is the rub for the noble Lord, Lord Henderson. He has itemised one play. I am not itemising one play. If the local authority is staging a succession of plays of which one is the one that he mentioned, I hope that he will bear my words in mind. However, if the local authority were to promote a succession of plays which promoted homosexuality as their only motive the plays must be subject to questions that would have to be resolved by the courts. It will then become the defence of the local authority to say that it was not their intention. The purpose of the amendment that I have just moved is to allow the court to take into account all the circumstances.

The proposal in the amendment of the noble Lord would, however, be damaging in terms of the Bill's objectives, and I know he fully realises that. It would effectively allow local authorities who wished to do so to use the theatre to promote homosexuality; for example, by funding a theatre group whose purpose was solely or mainly to do that. The Government could not support the introduction of this important loophole into the clause for the very reasons that my noble friend Lady Blatch has given.

In summary, the Government do not believe that the local authorities would be prevented by Clause 28 from financing the theatre for the purposes of ensuring that the public have access to a full range of available material. Our amendments put beyond doubt any question that they would. I believe that we have met the noble Lord's concerns and that his worries are not founded.

Lord Jenkins of Putney

The noble Earl is too young to recall that about 20 years ago, almost to the day, in this country we abolished censorship of the theatre. The only noble Lord present who was a member of the committee which abolished it, as well as myself, was the noble Lord, Lord Renton. He was a member of the committee which abolished censorship of the theatre. It was an extraordinary committee. It was a joint parliamentary committee under the chairmanship of the noble Lord, Lord Strauss, consisting of the noble Earl, Lord Scarbrough, the late Lord Kilmuir, the noble Viscount, Lord Norwich, the noble Lord, Lord Tweedsmuir, the noble Baroness, Lady Gaitskell, the noble Lord, Lord Lloyd of Hampstead, the noble Lord, Lord Annan, the noble Lord, Lord Goodman, and, in addition, Mr. Faulds, Mr. Foot, Mr. Hooson, Mr. Hugh Jenkins. Sir David Renton, Mr. St. John-Stevas, Mr. Strauss and Mr. William Wilson.

One could hardly have had a group of people less likely to agree about anything. However, the reason that they came to the conclusion that the censorship on the theatre must be abolished was that the Lord Chamberlain himself, who was the censor, said, "I want nothing more to do with this nonsense". He said that he had spent his life substituting this unpleasant word for that unpleasant word and saying that it could then go through, judging whether or not there was an intention and judging whether or not there was a deliberate intention to promote. He said, "This is a total nonsense. Abolish me". We had no alternative but to abolish his office.

What is happening now is that, by a silly back door, censorship is being allowed in again. All the problems that we spent all those years dealing with are listed—the noble Earl can read them—as are the absurdities we went through when discussing whether the issue did or did not promote something, or whether it intended to, and so on. We decided that enough was enough. This issue is coming back. This is a disgraceful business. It is the result of introducing into a Bill which has nothing whatever to do with the subject an issue which has been insufficiently studied by people who have no knowledge of it and do not realise the quagmire, the swamp, into which they are putting themselves. I suggest to the noble Earl that they will bitterly regret Clause 28.

Lord Renton

Will the noble Lord allow me to intervene? I hope that he will allow me to remind him that in reaching our unanimous decision to which he has referred, our minds were prompted by the fact that we were taking away from the Lord Chamberlain a jurisdiction of being censor while placing upon the courts a responsibility which, it could be said, they already had of allowing the law relating to obscenity to operate. In order to give a complete picture of the conclusion that we reached, I think that that should be borne in mind.

Lord Hutchinson of Lullington

Will the noble Lord agree that the whole of this matter we are discussing should be left to the ordinary law and the law of obscenity? If not, why not?

Lord Renton

That would make the amendment unnecessary.

Lord Jenkins of Putney

I think I agree with much that the noble Lord, Lord Renton, said. One of the courses we took was to make sure that the law was not exploited by every Tom, Dick or Harry. We made it necessary to get the fiat of the Attorney-General before an action could be brought under the Act. Therefore, if instead of the noble Earl telling me that anybody can sue under this—the whole country—he will say that the Government will introduce a clause whereby action can only be taken with the fiat of the Attorney-General, we may look at it again. But he is not saying anything of the sort. He is saying simply: "Here it is. We have done it and we are not going to change our minds". That simply will not do. A change has to be made, and unless the noble Earl has something more to say, even at this late hour, it will be my duty to divide the Committee, simply to demonstrate some of us will not have this nonsense.

Lord Monson

Does the noble Lord not agree that a local authority owning a theatre could not possibly be caught by the clause unless it were deliberately to put on something entitled, for example, "A season of homosexual drama" and advertise it widely as such? Unless it were to do such a thing it could not possibly be caught by the clause.

Lord Jenkins of Putney

If that were put into the Bill, yes. But if no such thing were done, what the noble Earl says about a range of things is absolutely meaningless. The Bill itself is in total contradiction of the words of the noble Earl on the Front Bench.

Lord Henderson of Brompton

There is this point of censorship. This is how it will come about. A local authority will say, "We shall not put on 'Maurice'. Goodness me, no; otherwise someone will prosecute us". Therefore one will have censorship in that form. It will not be put on because somebody will prosecute. It will be a fear of prosecution by the local authority that will stop it putting on a perfectly reputable play because some busybody will take it to court, waste ratepayers' money and the court's time in finding out whether or not the intention is there in putting on a single production of "Maurice".

This is absolutely censorship by the back door. The noble Lord, Lord Jenkins, has put his finger on it. The noble Lord, Lord Renton, has given the game away completely. The whole of the clause can be operated under the Obscene Publications Act.

11.23 p.m.

On Question, Whether the said amendment (No. 119) shall be agreed to?

Their Lordships divided: Contents, 20; Not-Contents, 33.

Airedale, L. Houghton of Sowerby, L.
Ampthill, L. Hutchinson of Lullington, L.
Birkett, L. Jenkins of Putney, L. [Teller.]
Cocks of Hartcliffe, L. Kissin, L.
Dean of Beswick, L. McCarthy, L.
Ewart-Biggs, B. McIntosh of Haringey, L.
Gifford, L. Mackie of Benshie, L.
Graham of Edmonton, L. [Teller.] McNair, L.
Peston, L.
Grey, E. Turner of Camden, B.
Henderson of Brompton, L.
Beloff, L. Hooper, B.
Belstead, L. Johnston of Rockport, L.
Blatch, B. Long, V. [Teller.]
Borthwick, L. Mackay of Clashfern, L.
Boyd-Carpenter, L. Mersey, V.
Brougham and Vaux, L. Monson, L.
Butterworth, L. Morris, L.
Caithness, E. Norfolk, D.
Campbell of Alloway, L. Renton, L.
Davidson, V. [Teller.] Saltoun of Abernethy, Ly.
Dundee, E. Selkirk, E.
Ferrers, E. Skelmersdale, L.
Glenarthur, L. Stockton, E.
Grantchester, L. Thomas of Gwydir, L.
Halsbury, E. Trafford, L.
Harvington, L. Wynford, L.
Hesketh, L.

Resolved in the negative, and amendment disagreed to accordingly.

11.30 p.m.

Lord Peston had given notice of his intention to move Amendment No. 120: Page 28, line 37, at end insert— ("(4) It shall be a defence in any action brought under subsection (1) of this section to establish to the satisfaction of the court, with regard to any literary works used by or under the local authority and which are alleged to be contrary to subsection (1), that—

  1. (a) such works are of literary merit;
  2. (b) the use made of such works, in all the circumstances, meets a genuine pedagogical need.
  3. (c) the references to homosexuality in the works are incidental to its principle content; or
  4. (d) the references to homosexuality in the works are essential to its completeness as a work of learning or reference.")

The noble Lord said: Disappointed though I am by what one might call the noble Earl's standard reply, it seems to me that I have had a very fair run for my money and therefore I shall not move the amendment.

[Amendment No. 120 not moved.]

Lord Graham of Edmonton moved Amendment No. 120A: Page 28. line 37, at end insert— ("(4) Nothing in subsection (1) above shall be taken to prohibit the doing of anything for the purpose of providing information, counselling or advice to any pupil at a school or other educational establishment maintained by the authority as to his personal development or any family relationship which could reasonably be regarded as likely to affect that development.")

The noble Lord said: Having failed to get any sense out of the Government in defining precisely the meaning of the terms "promote" or "intentionally promote", the intention of the amendment is to look at what we consider could be a problem the other way round. The Government may believe that there are children who will need protection from some people involved in education. The amendment seeks to point out that there are those who intentionally seek to promote homosexuality in all the terms used by the Minister and his friends and that they need to be stopped. That is the stance of the Labour Party because this is substantially the amendment which was moved by my honourable friend John Cunningham, the Member for Copeland in another place.

Will the Minister confirm that in carrying out their duties regarding sex education as laid down by, for example, the Department of Education, the overwhelming majority of teachers are doing nothing that they will not be able to do when the Act is passed, provided that there is not an intention to promote homosexuality? In every school there are young people who are growing up and finding that they need to ask questions and to discuss matters. They need counselling of one kind or another in the school. We want the Minister to confirm that all those duties which are now undertaken will not be caught by the Act because they do not intentionally promote homosexuality. I hope that what is being done by the teachers, counsellors and groups is what every Member of the Committee would wish them to do—they are responding to genuine concerns, cares and considerations which are brought to their attention by young people.

The Minister may well say that there is no need for this amendment. If he says that there is no need for it because all the issues which it seeks to include in the Bill are not caught by the Bill, in my view that would substantially meet the case. I do not wish to delay the Committee unduly.

I was interested to hear the noble Baroness, Lady Blatch, speak of the correspondence which she has received about this matter. I have received more than 200 letters from the city of Cambridge. Undoubtedly, most of them are from students in the colleges. All of them substantially plead the case in respect of Clause 28. She will understand how remarkable it is that they have chosen the right person in her and the right person in me.

The other point that the noble Baroness made was that most of the letters she received started off, "I am a homosexual". In one of the letters that I have from Downing College, which is certainly better known to the noble Baroness than myself, the writer speaks both as a heterosexual and a Christian: I feel bound to say that in my opinion this Bill proposes a very dangerous precedent. In another part of the letter he speaks as a scholar of literature and the fine arts. He says: I also wish to register my profound dismay at the implications of Section 27(2)(a) of the Local Government Bill. Undoubtedly Members of the Committee have received much correspondence.

The Minister can assure a great many people who are worried about what the Bill means in practice. If it makes no difference whatever to the overwhelming number of teachers who are carrying out their duties properly, fairly, compassionately, sincerely and giving guidance and counselling to young people who have come to a realisation of their sexual orientation and are seeking guidance and who are not promoting or intentionally promoting homosexuality, then I am sure the Minister will do those and thousands of other people a good service. I beg to move.

Lord Gifford

I should like to support the amendment. The clause as drafted at present puts teachers—and especially teachers who have the pastoral care of young people—in an impossible position. They are charged with counselling and trying to assist and advise young adolescents who are finding out about their sexuality. They will be approached by young men and women who may be discovering that they are gay. The young people may be very oppressed by that discovery, particularly given the climate of our times, and they come to the teacher for advice.

What is the position of a teacher who counsels that young person that he or she is not abnormal but that there are millions in the same position; that their sexuality—if they arc indeed gay—is not something abhorrent or unacceptable but is real and is normal and is their particular characteristic and not something to be ashamed of? If that young person then in conversation with their parents or relations divulges that advice and the parent, in horror, complains to the press or the local authority that here is a teacher who is promoting homosexuality, what happens to the teacher then? Can the Minister assure the Committee that teachers in that position will not be subjected to disciplinary proceedings if they do not abstain from that kind of advice? There is a real point of issue raised by this amendment, and I hope the Minister will assure the Committee that he will either look at the matter again or give a sympathetic reply.

Lord Henderson of Brompton

The noble Lord, Lord Gifford, has put his finger on a most important point. There is another aspect of this matter. Those charged by the council, by HMI and the Department of Education and Science with the task of counselling will be afraid to do it in relation to homosexuality in case just this sort of thing happens. They will be afraid to carry out their proper task of counselling. I ask the noble Earl to consult with the Department of Education and Science and ask it whether or not it has fears because there is a HMI publication dated 1986 called Health Education front 5 to 16 which states: The importance of sexual relationships in all our lives is such that sex education is a crucial part of preparing children for their lives now and in the future as adults and parents. That cannot he done without describing the whole range of sexual inclinations. The 1987 Department of Education and Science circular entitled Sex Education at School states: The Secretary of State considers that the aims of a programme of sex education should be to present facts in an objective and balanced manner so as to enable pupils to comprehend the range of sexual attitudes and behaviour in present day society". Let us suppose that there is a homosexual teacher, of either sex, who is afraid of being exposed in just the way that the noble Lord, Lord Gifford, related to the Committee. What is that teacher going to do? He or she is not going to do the job properly, but will refrain from telling children about homosexuality, whether male or female, and will not be able to fulfil the wishes of the Secretary of State in his circular. That is a most undesirable development which might well take place.

Lord Renton

This well-intentioned amendment is extremely widely drawn and I wonder whether those who have moved it have really contemplated that it would have a most damaging effect. The only criterion as to whether this information, counselling and advice could be given is to be found in the words at the end: which could reasonably be regarded as likely to affect that development. Absurd though it may seem, the amendment means, as worded, that if it is to have an adverse effect it would be all right-anything goes. I find that a very strange result but one must infer that from the wording of the amendment.

Another point that the Committee may wish to hear in mind about the amendment, mainly because of what I said about the wording of it, is that it would be in conflict with subsection (1). We should therefore be passing a wrecking amendment if we agreed to this one.

The Earl of Caithness

I am grateful to the noble Lord, Lord Graham of Edmonton, for giving the Committee the opportunity to discuss the question of pupil counselling. Clearly it is important for a local authority and its staff to feel free to discuss with a pupil any problems that arise because of a pupil's personal preferences, including problems that involve the discussion of homosexuality. The Government naturally share the Opposition's concern that local authorities should not be prevented from ensuring that pupils with personal difficulties have access to persons, be they teachers or specialised counsellors, who can discuss those personal circumstances in an objective and helpful fashion. That is quite different of course from promoting homosexuality or promoting the teaching of the acceptability of homosexuality as a pretended family relationship.

Let me again reassure the Committee that the government amendment would make it clear that local authorities' legitimate counselling services would not be affected so long as the local authority was not promoting, or assisting counsellors to promote, homosexuality. That was the point that my noble friend Lord Renton picked up from the final words of the amendment. Clearly I have great faith that the majority of counsellors will do this in an objective and helpful fashion; but what is fundamental to the Bill is that those local authority staff who promote homosexuality must be candidates for being looked at as seriously transgressing it.

11.45 p.m.

Lord Gifford

Perhaps I may press the Minister a little further and take him up not on the question of promoting homosexuality but on the other limb of the clause as it stands, that is to say, promoting, the teaching… of the acceptability of homosexuality as a pretended family relationship". If, in a counselling situation, a pupil were to ask, let us say, about his parent who may be in a lesbian relationship, it would surely be promoting the teaching of homosexuality as a pretended family relationship for the teacher to say, "There is nothing wrong with your mother's relationship; it is a normal relationship and many women have such relationships. It is perfectly acceptable."

Is it really to be supposed that a counsellor should be inhibited from trying to reassure a child who is concerned about something in relation to his parents because that teacher will be at risk of promoting the teaching of the acceptability of homosexuality as a pretended family relationship? Surely, there is something to be looked at here, at least in respect of paragraph (b) if not (a) as well.

I hope that we shall have an answer to the point raised by the noble Lord, Lord Henderson. Has the Minister consulted the Department of Education and Science as to its view of this clause? If he has not, he should, should he not? Will the Minister undertake to the Committee that he will?

Lord McIntosh of Haringey

Before the Minister replies, perhaps I may refer to what my noble friend thought might be a hypothetical situation. One of my closest friends is a lesbian and is living with the mother of a five year old child who has just started school. The case which my noble friend has put is precisely that which is happening now in a school in north London. Is that young child, a boy aged five, to be told that what he sees as his family relationship is unacceptable? Is it to be prohibited that the truth should be told about the relationship which is that of a happy family? It is clear from the way in which the Bill is drafted that a description of that relationship is outlawed by this clause.

Anybody may have their own views about my friends. But they cannot consider it acceptable for an innocent five year old boy to be deliberately confused by a clause of this kind.

Lord Renton

The noble Lord has overlooked the fact that if the five year old child, when he becomes a teenager, asks about this relationship and is told, "In the case of your mother and her friend it is a relationship that they have decided upon and I do not think you need worry," that is not promoting homosexuality in the child.

Lord McIntosh of Haringey

It is promoting in a maintained school the acceptability of homosexuality as the pretended family relationship. That is what it is doing.

The Earl of Caithness

Of course, the noble Lords, Lord Gifford and Lord McIntosh of Haringey, were right to raise the question of a pretended family relationship. I am sorry that I did not say earlier that this is the very point which I took back to look at. It was the amendment of my noble friend Lady Cox. I wanted to have another look at the wording between now and another stage, and I shall do so.

Of course, the Ministers at the Department of Education and Science have been consulted. I did not answer that question from the noble Lord, Lord Henderson of Brompton, because I thought that with his knowledge of the workings of government he would have automatically assumed that that had taken place, as indeed it had.

In response to the noble Lord, Lord Gifford, this was something that I agreed to take away and look at again. I said that when the noble Lord was not here.

Lord Houghton of Sowerby

The trouble with this kind of legislation is that one cannot leave anything to chance. On subjects of this kind there are some extremely vicious people around who are relentless in their pursuit of their objective. I do not want to mention any names, but one can recall cases that have been taken against local authorities by citizens who want to work out, to the bitter end, their relentless opposition, for example, to what was being done in connection with young girls and family planning.

We cannot leave this issue to chance because people can pursue matters all the way to this place on legal aid. It is astonishing how far people can go on legal aid to resolve some matter of public importance. That is why we must be so careful.

I shall not detain the Committee any longer, except to say that it is remarkable that, so far as I am aware, throughout this debate no advice has come forward from anyone representing the Department of Education and Science. The issue has been treated as a local government matter. We are discussing an educational matter during a debate on a Local Government Bill.

Another point is that it is undesirable to be considering matters relating to schools and the teaching or promotion of homosexuality separately from consideration of other subjects being taught to children. What other proscriptions are there to be? What matters in our educational system are to become obligatory? Where is the balance? Where can we see the whole child undergoing educational instruction and enlightenment?

My noble friend Lord Henderson read out something a moment ago relating to sex education in schools. But we have heard nothing about that subject. All we have heard about is promoting homosexuality. This is the narrowest, most blinkered piece of legislation that one can possibly have in such a matter.

I thought the Chamber existed to make good law and to see that it is done properly. But we are just a receptacle for the slipshod work done in another place. Legislation that is ill-considered, thrown in at the last minute and ill-drafted comes to this place to be knocked into shape. I shall have much more to say about this when we come to Clause 10 stand part.

Lord McCarthy

The noble Earl has said that the Department of Education and Science was consulted. Will he tell us at what level it was consulted, what it was asked and it said?

The Earl of Caithness

Of course the noble Lord, Lord Houghton of Sowerby, is right to raise the question of sex education. However, he knows full well that under the Education (No. 2) Act 1986, control passed from the local authorities to school governors. It is right that one should still consult one's colleagues in other departments, and more than one department is involved in this. But it would be wrong for me to spell out the details that the noble Lord, Lord McCarthy, requires.

Lord Graham of Edmonton

I bet that if the Minister had the details he would not hesitate to spell them out. I strongly suspect that he does not have them. I am not saying that they are not available. Over the past few minutes the Minister has again sought to stick rigidly to the fact that the only offenders arc those who intentionally promote homosexuality. And when, in our naivety on one side of the argument—sadly, always on this side of the Chamber—we say. "Well, if in fact that is wrong, can you tell us that this or that is right?", the Minister cannot give us the answers.

I accept that he does not have the answers or is unwilling to give them, but what is certain is that we have no answers to those questions. The term "a pretended family relationship" will haunt the Minister for a long time. There are a number of one-parent families or families where the two members are male or female. They may not be homosexual or lesbian, but the family has in the eyes of those two men or two women, a loving, caring relationship—not homosexual.

The Minister must do a lot of hard work in bringing forward phrases which are not only much more acceptable, but also much less offensive to people who are leading their own lives. The noble Lord, Lord Renton, makes a valid point. I never intended, nor would I accept that the wording was absolutely perfect. It was designed to try to get the Minister to give a little more reassurance for those outside so that what they have been doing in counselling young people is not caught by the Bill.

I am afraid that the Minister has not satisfied me and it will be seen by those outside that he has not satisfied them. But in the light of the time and circumstances, I beg leave to withdraw the amendment, with the prospect of bringing it forward again at a later stage.

Amendment, by leave, withdrawn.


Lord McIntosh of Haringey moved Amendment No. 120B: Page 28, line 37, at end insert— ("(5) Nothing in subsection (1) above shall be taken to prohibit the doing of anything for the purpose of discouraging discrimination against any homosexual person, or designed to protect the civil rights of any such person.")

The noble Lord said: This amendment ought not to be necessary. The clause ought to have been adequately drafted to ensure what has been proclaimed a number of times by its supporters; namely, that it is not the intention of the Government nor of the supporters of the clause to encourage discrimination against any homosexual person, nor to damage the civil rights of any such person.

In order not to detain the Committee any longer, I should be very happy if the spokesman from the Government Front Bench would give me the assurance not only that that is the Government's intention but that they will accept either this amendment or another one in suitable terms, to ensure that we achieve that.

I beg to move the amendment.

Lord Gifford

I should like to support the amendment. If I had been able to be here tomorrow to oppose the Question, that the clause stand part, I should have done so on the basis that the clause, in my view, breaches fundamental human rights. But because this amendment draws attention to the aspect of discrimination and civil rights, there is a lot to be said for it.

I want to look at this country's obligations as a signatory to the European Convention on Human Rights, and to ask the Minister whether he has considered this country's obligations when he supports the clause as it now stands. Article 8 of the convention is in the following terms: Everyone has the right to respect for his private and family life… Article 10 of the convention is in these terms: Everyone has the right to freedom of expression. Both those articles are subject only to the following qualifications: there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of and various matters follow, including the protection of morals. Finally, Article 14 of the convention says: The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion … or other status. I had the privilege of arguing before the European Court of Human Rights on this very issue in the case of Dudgeon v. United Kingdom. In that case the court declared that it was a violation of the rights of the applicant, Mr. Dudgeon, for the law in Northern Ireland to prohibit homosexual acts. As a result of that decision, the Government had to change the law. The court, whose interpretation of the convention binds this country, had some very interesting things to say about Article 8, in particular. It said: The present case concerns a most intimate aspect of private life. Accordingly, there must exist particularly serious reasons before interferences on the part of the public authorities can be legitimate for the purposes of Article 8(2). The court continued that, in Article 8 as in several other Articles of the Convention, the notion of necessity is linked to that of a 'democratic society'. According to the Court's case-law, a restriction on a Convention right cannot be regarded as 'necessary in a democratic society' (two hallmarks of which are tolerance and broadmindedness) unless, amongst other things, it is proportionate to the legitimate aim pursued". The court then added: The Court is not concerned with making any value-judgment as to the morality of homosexual relations between adult males". One looks at the clause before us without the amendment proposed by my noble friend in the light of that convention and our obligations under it. Let us remember the factual background under which we are considering this clause. Millions of our fellow citizens are gay men and lesbian women who make family relationships full of the mixture of affection, compatibility and sexual feeling and respect which make up any enduring love relationship. Those are family relationships as much as any between husband and wife. They are entitled to protection under Article 8 of the convention.

People do not become gay through persuasion, reading books or through seduction. Their sexual orientation is fixed in early childhood so that a young person will discover at an early age when sexual feelings begin to develop that he or she is gay. Therefore, the prohibiting of books and materials has nothing to do with stopping people being homosexual but everything to do with Article 10 of the convention which protects the right of free speech.

Finally, we look at this against a background of deep prejudice against gay men and lesbians, a prejudice which Article 14 is designed to combat. Surely it is fundamental that responsible leaders should invoke Article 14 and combat prejudice instead of encouraging it? Looking at this clause against that background, does it interfere with those rights under the convention? In my submission it does—in its terms and in its consequences.

In its terms the clause attacks those particular family relationships protected by Article 8. It states that they are pretended and unacceptable and, as I said a moment ago, a teacher is at risk in voicing the idea that they may be acceptable. The clause is incompatible with our obligations under the convention. It will lead to breaches of the convention in its inevitable consequences.

I mentioned a moment ago the possibility of teachers losing their jobs because they might say to children what I have just said in this Chamber; namely, that gay and lesbian relationships are just as normal and acceptable as any others—quite apart from the dangers of censorship to which we have drawn attention in earlier amendments.

We often rail against violations of human rights in foreign countries, but under the clause as it stands—without these amendments which would do something to rectify the position—human rights in Britain will become a cause of great anxiety. I challenge the Minister to tell us whether he has taken advice on the compatibility of the clause with our obligations under the convention and, if not, to agree to look again at the amendment.

Lord Henderson of Brompton

I regard this amendment as one of the most important of all the amendments. I very much regret that it has been so arranged that it is discussed at or after midnight. I am extremely grateful to the noble Lord, Lord Gifford, for giving us the benefit of his experience in the European Court. What he said is most important and I am very glad he has taken this opportunity of saying it so that it is on the record.

Unfortunately those who have not stayed this late will not be able to read the discussion because it is overmatter and will not be printed tomorrow morning. Those who take part in the debate on clause stand part will not have the benefit of the noble Lord's utterances. That is a great shame. I must say that I am very sorry that the Committee is so thin to hear such an important argument. Nevertheless it is very good to have it on the record and, of course, it will be referred to on Report.

My interest is not so much in human rights. At least it is; but I have not the confidence to talk about that issue. My interest is in the first part of the amendment as regards discrimination. I have been concerned about discrimination against the disabled for many years and I am concerned about discrimination against that minority of our community.

I shall not ask the Minister whether he has consulted the DHSS because I know that he has. One of the many starred amendments which the Government produced at the last moment concerned AIDS. It was introduced on the last day of the Committee stage in another place. Therefore, I know that the DHSS has been consulted.

Things have moved on since the time of the Standing Committee. In January of this year the department published Problems Associated with AIDS (Cmnd. 297). That was the department's response to the third report from the Social Services Committee session 1986–87. The paper quotes Recommendation 25 from that committee. The alienation of any sub-group from the rest of society, whether by their own intent or through the attitudes of others, will undermine the public health, since they may not then feel any responsibility to act for the general good, especially in preventing the spread of infection. We recommend that likely reactions are taken into consideration when planning the targeted campaigns". The Government then gave their considered reply—no doubt after the Minister had consulted the department because it was published in January. They replied to the Select Committee in Paragraph 3.9. The Committee's view of the need to ensure that AIDS information is presented in ways acceptable and relevant to the target audience is shared by the Government, particularly where the objective is to effect behavioural change. Any reinforcement of feelings of alienation or stigma could lessen the impact of the campaign and, in this respect, researching and piloting of material to be used are most important. 3.10 The Government shares the Committee's view that educational material is often best put across by bodies active in particular fields, e.g. among the homosexual community or representing disabled or sensorily impaired people, or those from ethnic minority communities. Their advice in presenting and putting out messages about AIDS to these groups is greatly valued". In view of the recommendations of the committee and the firm response of the Department of Health and Social Security, I should have thought that the amendment was absolutely necessary.

Lord Renton

With great respect to the noble Lord, Lord Gifford, I do not agree that Clause 28 as it stands in any way offends the European Convention on Human Rights. I do not consider that an amendment along the lines of Amendment No. 120B is necessary. However, if it were to be considered necessary, with great respect to noble Lords who have spoken, the amendment does not cover the points made by the noble Lord when he quoted from the judgments. I believe that the first judgment he quoted referred to non-interference with a person's private life. The second judgment referred to freedom of publication. The amendment does not deal with either of those matters. Even if the assumption which the noble Lord invites us to make is correct, I do not think that the amendment meets his purpose.

Lord Gifford

Perhaps I may respond. The noble Lord, Lord Renton is right because the law does not recognise civil rights, as referred to in the amendment. That is why I am asking the Minister not so much to say that this amendment is perfect but to ensure that the articles of the convention—they are not judgments—to which I have referred are safeguarded by the final version of this clause.

The Earl of Caithness

At first sight the amendment proposed by the noble Lord, Lord McIntosh of Haringey, seems very reasonable. We are all against discrimination. We all want to protect civil rights. However, I must ask the Committee to look more closely at the amendment. On closer examination, I think that it proves a Trojan horse which, in the guise of something to which we can all subscribe, could in fact remove much of the effect of Clause 28. In the first place, I ought to point out that the amendment is concerned not with discrimination by the local authority but with the local authority's attempts to discourage discrimination by others. Therefore the whole amendment is built upon a busybody's charter. It deals not with the local authority's own decisions but with other people's conduct of their own business.

More importantly however I have to draw the Committee's attention to the phrase "the doing of anything". As Members of the Committee are aware, that is a very wide phrase. In particular, it can cover the promotion of homosexuality. In other words, the amendment—like some others before it—is suggesting that a local authority can promote homosexuality if its purpose in doing so is to discourage discrimination or protect civil rights.

In the Government's view, if the noble Lord's amendment were concerned directly with discrimination by local authorities it would be unnecessary. Clause 28 will not provide any justification for a local authority to discriminate against homosexuals. However, given the way in which the amendment is drafted, we believe that it would open a back door to all the practices which have caused so much public concern. Therefore we feel that the amendment is positively damaging.

Turning to the question of the European Convention on Human Rights, I am grateful for what my noble friend Lord Renton said. I say to the noble Lord, Lord Gifford, that of course we have considered this important convention but the clause is concerned with what local authorities may spend their money on and not with what individuals may do. Therefore we are satisfied that the convention is not applicable to what is proposed.

Lord McIntosh of Haringey

It may be the lateness of the hour, but I thought that those were uncharacteristically weak rejoinders from both the noble Lord, Lord Renton, and the Minister. The noble Lord, Lord Renton, did nothing but assert his disagreement with my noble friend. He gave no reasons for that disagreement and even misinterpreted the status of the articles of the European Convention on Human Rights.

The Minister surprised me with his final remarks when he said that the European Convention on Human Rights does not affect legislation which is designed to control the way in which a local authority spends its money—or the ratepayers' money. Presumably, any way in which the ratepayers' money is spent by a local authority in this respect can have an effect on discrimination for or against any particular group in our society, and on the civil rights of any of the inhabitants of that local authority's area. Therefore it is not possible simply to exclude on such weak grounds the relevance of the European Convention on Human Rights.

As the noble Lord, Lord Henderson, said, this is perhaps one of the most important amendments that has been tabled to this clause. It has come at the end of a series of amendments which have progressively exposed not only the weakness of the clause as drafted but also what we have seen as the impossibility of putting it right.

When the Minister once again relies on that totally impossible and unworkable phrase "promote homosexuality" as his justification for all the "obscenities" (I am tempted to say) which the clause is likely to carry in its train, it is clear that there is something much more seriously wrong with this clause than had previously been thought. In a matter of six hours of debate in this Chamber there has been no effective defence of any significant aspect of this clause. It will need not only the most severe criticism when we resume tomorrow afternoon, but it will clearly need severe and rigorous attention at the Report stage. Clearly at quarter past midnight it is not appropriate to take the Committee to a Division. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hesketh

I beg to move that the House be now resumed.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

House adjourned at sixteen minutes past midnight.