Lords Sitting of 20 June 1994

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Portsmouth.

The Lord Chancellor: Leave of Absence
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, before the commencement of business, I take the opportunity to inform the House that I am to attend the European Speakers' Conference in The Hague from Thursday 23rd June to Saturday 25th June. Accordingly, I trust that the House will agree to grant me leave of absence for Thursday, 23rd June.

Mrs. Carol Ann Riley: Parole Decision
Lord Spens Lord Spens asked Her Majesty's Government:
Whether the decision of the Parole Board on Friday 13th May not to grant parole to Mrs Carol Ann Riley (GB1136—HMP Drake Hall) is in line with Home Office policy.
The Minister of State, Home Office (Earl Ferrers): My Lords, yes. The Parole Board's recommendation was based on the criteria for assessing a prisoner's suitability for release on licence, which the Home Secretary issued to the board under the Criminal Justice Act 1991.
Lord Spens: My Lords, I had thought that the Dickensian practice of the Parole Board refusing parole to inmates who had passed their "parole-by date" simply and solely because they continued to maintain their innocence had been abandoned some years ago under Home Office instructions. Is the Minister aware that the only reason why Mrs. Riley, a housewife who

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is allowed home freely for four days every fortnight, is kept inside is that twice this year she has been refused parole for the simple and sole reason that,
"She has not yet addressed her offending behaviour or realised the harm it did"?
Does the Minister agree that that is a kind of doublespeak from the Parole Board? Will he explain how it is possible for a person who maintains her innocence to address her offending behaviour? Perhaps the Minister will confirm that it is truly the policy of the Home Office not to use denial of guilt as a threat to inmates? In those circumstances, will he go back to the Parole Board and ask that this case be reviewed again?
Earl Ferrers: My Lords, I do not believe that there is any "doublespeak", as the noble Lord, Lord Spens, would put it. Each case is considered on its merits. The types of issue that the Parole Board must consider are the nature and circumstance of the offence, the offending history, the inmate's behaviour in custody (including the approach to the offending behaviour and the attitude to its victim) and any relevant medical or psychiatric reports, release plans and representations which are made by the prisoner.
The fact is that the Home Secretary cannot release a person whom the Parole Board does not recommend. The whole purpose of the Parole Board is that it makes an independent judgment of the people who are applying for parole. If it is its view that the person is not considered right to be released, he or she is not released and the Home Secretary cannot alter that.
Lord McIntosh of Haringey: My Lords, I understand the Minister's statement about the independ-ence of the Parole Board and I do not wish to question that. However, will he confirm, as he was asked by the noble Lord, Lord Spens, that it is not the policy of the Parole Board to keep prisoners in prison after their parole date has been reached solely on the ground that they refuse to admit their guilt? I had understood that that wrong policy had been changed. It would be helpful to have that confirmed.
Earl Ferrers: My Lords, the policy of the Parole Board is a matter for the Parole Board. Each case is considered on its merits. Although Mrs. Riley has made good progress, she has not addressed her offending behaviour or realised the harm that it had done, as the noble Lord, Lord Spens, said. That is the reason why the Parole Board said that it did not think it correct to release her.
Baroness Seear: My Lords, is there not some absence of logic? If Mrs. Riley has not admitted the offence how can she reform the bad behaviour which she does not accept she has committed? I do not understand the argument. Can the Minister explain?
Earl Ferrers: My Lords, no I do not think that I very well can. The fact is that she may have maintained her innocence but she was found guilty. She must understand the effect on others of that of which she was found guilty. As I understand it, that has not yet materialised.
It would be improper for me to go into the detailed cases of individuals who seek parole. The Parole Board considered all the questions and all the merits of the case and that was the conclusion to which it came. It would not be right for a Minister to try to counteract the Parole Board's decision.
Lord Hailsham of Saint Marylebone: My Lords, in case other Members of this House share my ignorance, will my noble friend tell us what she was convicted of?
Earl Ferrers: My Lords, she was convicted of fraud. I believe that she was involved with a company which invited people to lodge money with it at an enormous rate of interest. It ended up at about 100 per cent. per month. Not surprisingly, that rate of interest did not materialise and some of the funds went down the Swanee.
Lord McIntosh of Haringey: My Lords, will the Minister accept that his answers have been rather worrying to some of us? Of course, nobody suggests that in individual cases there should be parliamentary comment on the decisions of the Parole Board. But the question of whether somebody should be kept in prison merely because she does not admit her guilt is surely an issue of public policy, is it not? Is that not an issue on which the Minister feels able to comment?
Earl Ferrers: My Lords, I have no reason to believe that anyone should be kept in prison simply because there is no admission of guilt. That is not the reason why that lady is being kept in prison.
Lord Campbell of Alloway: My Lords, did she enter an appeal against her conviction?
Earl Ferrers: My Lords, yes. She had two convictions. In 1990 she was convicted of two offences of fraud, to which she pleaded not guilty. She was sentenced for those offences in 1991 and received a sentence of six years. On the second occasion, in 1992, when she pleaded guilty, she received a sentence of two-and-a-half years. She appealed against that sentence and in 1994 the Court of Appeal reduced it to a year.

US Plutonium Production: Safeguards
2.43 p.m.
Lord Jenkins of Putney Lord Jenkins of Putney asked Her Majesty's Government:
Whether they are aware of the United States Government's admission of the loss of a quantity of plutonium sufficient to make 300 nuclear weapons and, if so, what steps they propose to take with the United States to trace the missing plutonium.
The Minister of State, Foreign and Commonwealth Office (Baroness Chalker of Wallasey): My Lords, this is a matter for the US Government. We understand from them that recent reviews of their plutonium production have revised the quantity of plutonium produced, and that the differences in their figures are not due to missing or stolen plutonium. We understand they are due to material contained in solutions, ducts and other plant or radioactive waste, which is not readily accessible. We further understand that the US Government intend to release additional information on their plutonium production in the near future.
Lord Jenkins of Putney: My Lords, is this not an extremely worrying matter? Is the Minister aware that the Washington correspondent of the Guardian describes the American method of accounting for what has happened to the plutonium supplies as showing breathtaking irresponsibility? Does the Minister not agree that it rather appears that one explanation is that the amount of plutonium produced was deliberately understated in the statistics so as to make available a certain amount of plutonium, which was then exported secretly to those countries not on the list of "exportables"? Those countries are said to include both Iran and Iraq. In those circumstances, does the Minister not await with considerable anxiety the further report which we are supposed to receive from the American Government?
Baroness Chalker of Wallasey: My Lords, I understand the preoccupation of the noble Lord, Lord Jenkins of Putney, with this matter. I do not believe that the words of Martin Walker, the Washington correspondent of the Guardian, are the last words on this matter. We understand that the United States maintains security arrangements over its plutonium stocks which are in line with internationally agreed standards. Certainly our UK civil facilities are subject to strict safeguards oversight by independent Euratom inspectors, and are subject also to strict security arrangements in line with those internationally agreed standards. I cannot tell the noble Lord what will be in the forthcoming report. I can say only that the British Government will not allow plutonium to be exported from this country unless we are confident that it will not be misused. I cannot speak for the US Government.
Baroness Blackstone: My Lords, will the Minister agree that such incidents underline the importance of the International Atomic Energy Agency's inspection and co-operation procedures? Have the UK Government

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had any discussions with the Russian Government about their stocks of plutonium, and has the IAEA inspected those stocks?
Baroness Chalker of Wallasey: My Lords, perhaps I should make it clear, because the noble Baroness's question raises the matter, that I understand her belief in the IAEA. We follow what it does with the greatest care. I am told that the different sets of figures which are the subject of this Question arise because the measurement skills in 1944, when the system started, have changed greatly over the 43 intervening years. That is why the United States Government are now giving a different figure.
In respect of the question which the noble Baroness asked, we have close contact with the Russians. However, I should like to check on the specifics of her question and I shall write to her on that matter.
Lord Jenkins of Putney: My Lords, does the noble Baroness agree that in those circumstances, we must await the further report of the American Government on this issue? But, if they are not to be trusted to keep charge of their plutonium in a reasonable and proper manner, who is to be trusted? Is that not a matter of worldwide anxiety?
Baroness Chalker of Wallasey: My Lords, I have certainly not said that the United States Government are not to be trusted. That is a very strange interpretation for the noble Lord to make. We certainly can be trusted to obey the rules. We have done so; and we shall continue to do so.

Orly Airport: British Air Services
2.48 p.m.
Lord Boyd-Carpenter Lord Boyd-Carpenter asked Her Majesty's Government:
Whether the French Government are continuing to exclude British civil aircraft from Orly Airport.
The Parliamentary Under-Secretary of State, Department of Transport (Lord Mackay of Ardbrecknish): My Lords, we are pleased that, following pressure from our Government, air services between London and Orly Airport in Paris started from 13th June. However, the conditions which the French Government have imposed on the route are clearly discriminatory and we are working to secure their removal.
Lord Boyd-Carpenter: My Lords, I thank the Minister for that Answer. What do the Government propose to do if the French do not relax those restrictions? Will they take counter-measures?
Lord Mackay of Ardbrecknish: My Lords, I do not believe that we should look favourably upon taking counter-measures. However, we are considering taking action under Article 170 of the treaty which will enable us to take the French to the European Court of Justice. Before that happens, the Commission is required to investigate the matter and to deliver a reasoned opinion within three months.
Lord Bruce of Donington: My Lords, can the Minister tell the House, especially in view of the rather grave infringement by the French Government, whether there has been any pronouncement from the President of the Commission on the subject? If so, are the Government satisfied with what they have heard from the Commission? Are they satisfied that such opinion as it may have is quite impartial in the matter?
Lord Mackay of Ardbrecknish: My Lords, unlike the noble Lord, I do not keep a scrap-book of the utterances of the President of the Commission, so I cannot honestly answer the first part of his question. However, I can tell him that the Commission issued a decision on 27th April which held that the French authorities should not continue to refuse Community air carriers permission to operate air services between London and Paris, Orly.
Lord Tordoff: My Lords, can the Minister explain for the benefit of the House what restrictions continue to be placed on the traffic between London and Orly Airport?
Lord Mackay of Ardbrecknish: My Lords, essentially there are two restrictions. The first is the number of flights allowed per day, which is to be four to each carrier, and the authorities have in fact bracketed British Airways and TAT, which is a French subsidiary of British Airways. The second restriction refers to the size of the aircraft. No aircraft with a seat limit of under 200 passengers will be allowed into the airport.
Lord Brabazon of Tara: My Lords, can my noble friend tell me whether the restriction on the number of seats in the aircraft to over 200 applies to all aircraft flying into Orly or only those from the United kingdom?
Lord Mackay of Ardbrecknish: My Lords, my noble friend asks me a valid question. Of course, if it applied to all aircraft coming into Orly Airport it could not be held to be discriminatory. However, it applies only to those coming in from London. Therefore, it is clearly discriminatory.
Lord Clinton-Davis: My Lords, notwithstanding the question posed by my noble friend Lord Bruce of Donington, is it not clear that the Commission has in fact done its duty in this regard? Is there any reason to suppose that it will not continue to do so in view of the complaint which is currently being made by Her Majesty's Government? Further, is the Minister aware that we on this side of the House support the Government in the actions that they propose to take? However, can the Minister explain what implications there are in the policy of liberalisation, which we support and, indeed, which is being tested by the Orly case, as regards the United Kingdom's attitude towards the use of certain airports outside the London area— Manchester in particular—by United States airlines?
Lord Mackay of Ardbrecknish: My Lords, perhaps I may first welcome the noble Lord's support for our general policy vis-à-vis this particular matter about Orly Airport. I can confirm that the Commission acted quite

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properly; indeed, we support it absolutely in the decision that it took in April. If the matter has to go again to the Commission, we have no reason to believe that it will not take a similarly robust view. On the latter part of the noble Lord's question, I must tell him that the matter of the US-UK air bilateral falls outwith the jurisdiction of the Commission.
Lord Peyton of Yeovil: My Lords, can my noble friend the Minister let his imagination loose and venture to give us some opinion as to what the reaction of the French Government would be if we disobeyed the rules as they do?
Lord Mackay of Ardbrecknish: My Lords, I am sure that the French Government would be very annoyed if we disobeyed the rules. But, of course, the question is totally hypothetical. As the House knows, we scrupulously obey the rules.
Lord Clinton-Davis: My Lords, is the Minister aware that I was not asking him about the role of the Commission? I was asking what implications there are in relation to the liberalisation policy for aviation and for airport use so far as concerns US relations with this country and, in particular, in relation to the use of non-London airports.
Lord Mackay of Ardbrecknish: My Lords, the noble Lord's questions go a little wide of the Question on the Order Paper. However, I am glad to be able to tell him that we would be very happy to proceed with negotiations on liberalisation with the United States but, unfortunately, all our overtures and suggestions to them have yet to be met with a reply.
Lord Boyd-Carpenter: My Lords, I revert to Orly Airport, to which the Question relates. Can my noble friend the Minister say what is the total loss incurred by British airlines as a result of such wholly unnecessary and wanton restrictions?
Lord Mackay of Ardbrecknish: My Lords, I am sorry to tell my noble friend that I cannot give him a figure as to the potential loss incurred by British airlines. Of course, some of the flights that would be shifted to Orly Airport would in fact be flights that currently go to Charles de Gaulle Airport.
Lord Elton: My Lords, my noble friend spoke of a limitation on the number of seats in planes flying only from the United Kingdom to Orly Airport. Can he say whether those regulations apply to French airlines, and particularly Air France, as well as to other airlines?
Lord Mackay of Ardbrecknish: My Lords, as I understand it, even the French have not attempted to be that discriminatory. The restriction applies to all airlines flying from London to Orly Airport.
Lord Clark of Kempston: My Lords, does my noble friend agree that such discrimination would end fairly quickly if Her Majesty's Government were to insist on the same discrimination for French planes coming to this country?
Lord Mackay of Ardbrecknish: My Lords, I shall not be tempted by my noble friend to look into a crystal ball on that aspect of the matter. However, as I said earlier, we do not believe that the sensible way to proceed in such incidents is to take retaliatory measures.

Gibraltar: European Parliament Elections
2.55 p.m.
Lord Merrivale Lord Merrivale asked Her Majesty's Government:
What requests they have received to enfranchise Gibraltar to participate in elections to the European Parliament and what consideration is being given to the arguments put forward.
Baroness Chalker of Wallasey: My Lords, this is a subject on which we maintain a regular dialogue with the Government of Gibraltar. We have, in addition, been lobbied by a number of political parties and organisations in Gibraltar. We have explained that Annex II of the 1976 EC Act on Direct Elections limits the franchise in European parliamentary elections to the United Kingdom.
Lord Merrivale: My Lords, I thank my noble friend the Minister for that Answer, which was not unexpected. However, as uniform procedure is not yet in place, would it not be an appropriate time now for the Government to pave the way for the amendment of Annex II of the 1976 EC Act on Direct Elections to which she referred? Further, is it not a fact that the European Parliamentary Elections Act 1978 and the 1986 regulations are amended by the 1994 regulations regarding changes to the franchise and qualification of representatives? Therefore, could not the matter be considered a little more favourably?
Baroness Chalker of Wallasey: My Lords, I understand my noble friend's concern in the matter. The situation is complicated because, although Article 8b(2) of the Maastricht Treaty establishes the right for European Union citizens resident in another member state to vote and stand for election in the European Parliament, it does so under the same conditions as apply to nationals of the host member state. In this case, that way of resolving the matter has no practical application for Gibraltar because it does not confer a franchise; it simply refers to national treatment. The basis for Gibraltar's exclusion is Annex II of the 1976 EC Act on Direct Elections.
It is important to remember that Gibraltar's position in the European Union is unique. It has an opt-out from the CAP; it is excluded from the free movement of goods regulations; and it makes no contributions to Community resources. Yet we have managed to negotiate for the Gibraltarians Objective II structural funds to assist them. We cannot give a vote to Gibraltar when no other territory which does not vote in a member state's national elections can vote in European elections. Therefore, I do not hold out the hope that my noble friend wishes I could.
Lord Molloy: My Lords, bearing in mind the remarkable and massive loyalty that Gibraltar has shown to this country both in peace and wartime—and those of us who know Gibraltar very well understand that the Gibraltarians acknowledge themselves as being part of this island—would the Minister be prepared to continue her endeavours, in which I am sure that the whole House would wish her success, so that Gibraltarians will know that the loyalty which they have always shown to this nation will be reciprocated in any assistance to help them join the European Parliament? If we are successful in that endeavour, we shall have another certain, good ally.
Baroness Chalker of Wallasey: My Lords, it is extremely difficult to know how one could deal with the matter. Gibraltar's total population is less then one-tenth of the size of the average European constituency in this country and significantly smaller than the average European constituency, even in Luxembourg. I do not believe that Gibraltar can be attached to a UK-European constituency. We are bound by Annex II of the 1976 Act. Therefore, I cannot see a way of giving the franchise to Gibraltarians when no other country has a place in the European elections when it does not in the national elections. I do not believe that the noble Lord was making that suggestion.
Lord Merrivale: My Lords, as Gibraltar is part of the European Community by virtue of Article 227(4) of the 1957 Treaty of Rome, surely nationals of member states should be allowed to vote there in European elections, as six member states already allow their nationals to vote even if living outside the Community.
Baroness Chalker of Wallasey: My Lords, I think that there is some confusion about this matter and I shall write out in great detail to my noble friend the full details and copy that to other noble Lords who are interested. The important thing is that where there have been Gibraltarian concerns, both my noble friend Lord Bethell and the Member of the European Parliament, Alf Lomas, have taken up the Gibraltarian concerns in the European Parliament, so they have not gone by default. But I can see no way in which Annex II of the 1976 EC Act can be changed.

Value Added Tax Bill [H.L.]
3.1 p.m.
Read a third time.
Clause 101 [Commencement and extent]:
The Lord Chancellor The Lord Chancellor moved the amendment:
Page 90, line 43, leave out ("78") and insert ("72").
The noble and learned Lord said: My Lords, this amendment is necessary to correct a small drafting error. Clause 101(2) refers back to the earlier clause in which the criminal offences are set out; that is, Clause 72, and not Clause 78, which was referred to in error. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor: My Lords, I beg to move that this Bill do now pass.
Moved, That the Bill do now pass.—(The Lord Chancellor.)
On Question, Bill passed, and sent to the Commons.

Criminal Justice and Public Order Bill
3.2 p.m.
Earl Ferrers: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Earl Ferrers.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 139 [Age at which homosexual acts are lawful]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 160A:
Page 113, line 13, leave out ("eighteen") and insert ("sixteen").
The noble Lord said: In moving Amendment No. 160A I wish to speak also to Amendments Nos. 161A and 163A and also, as I understand it, to the Question that Clause 139 stand part of the Bill. I want to make that clear from the outset.
Baroness Young: I am sorry to interrupt the noble Lord, Lord McIntosh, but should not the clause stand part debate be taken at the end of this grouping because, as I understand it, the amendments which follow it could not be called were the clause stand part debate to be; deleted? I wonder whether it is in the right grouping.
Lord McIntosh of Haringey: It is not my grouping. I understand that this grouping has been agreed. The Question as to whether Clause 139 should stand part of the Bill cannot be dealt with until all of the amendments relating to Clause 139 have been dealt with. However, I understand it is for the convenience of the Committee: that the issues of the age of consent, be it 16, 18 or 21, should be debated together. But we cannot change the: order in which votes are taken. The noble Baroness is entirely right on that.
The Earl of Lauderdale: Can we be absolutely clear that the debate on whether Clause 139 should stand pan: of the Bill will only be taken after Amendment No, 164ZA?
Lord McIntosh of Haringey: Yes, that is the position because the group starting with Amendment No. 161 comprises amendments to Clause 139 and therefore the clause stand part debate cannot be taken until the amendments of the noble Lord, Lord Mayhew, have been debated.
I shall try again to preface my remarks by saying that anything I say on this issue is a personal view. As far as my party is concerned, this is a matter of individual conscience and we are not required to vote in any particular way. I very much respect the opinion of those who say that the decision of the House of Commons

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—the view held by a considerable majority in that House—that the age of consent for homosexual acts between men should be reduced from 21 to 18 should prevail. I understand that argument as the House of Commons is the elected Chamber of Parliament and its Members have expressed their views. I can quite understand when people argue that it would be wrong for this Chamber to express a different attitude and therefore to raise the possibility of conflict between the two Chambers. That was, after all, a powerful argument in the debate which we had a couple of months ago on Sunday trading where a number of noble Lords felt—I understand their position—that it would be wrong for us to overturn the considered decision of the House of Commons.
But the challenge does not come from me. The challenge came in the first place from those who sought to oppose the Question that Clause 139 stand part of the Bill, and therefore that the age of consent for homosexual acts between men should be restored to 21 rather than to 18, as the House of Commons wished. Under those circumstances I feel—I hope the Committee will agree with me—that it is proper that the debate which takes place on this issue—and which must take place on this issue—should explore all the options which the House of Commons considered. That is why my three amendments and the Question on whether Clause 139 should stand part, and the amendment in the name of the noble and learned Lord, Lord Simon of Glaisdale, are being taken together as they are all concerned with this issue of the age of consent.
With that, I turn to the merits of the issue. I do not think anyone will deny that the existence of a different form of sexuality—in other words, homosexuality both between men and between women—has been a feature of the human race for as long as records have existed. Throughout the ages, as literature and art confirm, homosexual love and homosexual sexual acts have been a part of all of the societies which have preceded our society, and they are still prevalent in virtually all societies as well as in western society. Indeed, we owe to the existence of homosexual love a considerable body of the finest works of art and the finest literature which exist to sustain the human spirit.
At the same time, I do not think anyone could deny that there are different views as regards at what age it is proper for the law to recognise sexual acts, whether between men and women, between men and men, or between women and women. That is an opinion which will differ from one society to another and it does differ as between one society and another. In many parts of the world the law differs accordingly. What is much more unusual is the provision which has existed in our law, and would exist still in our law unless these amendments were carried, of a different age of consent for heterosexual sexual acts on the one hand, homosexual acts between women on the second hand, and homosexual acts between men on the third hand. I have reached a slightly strange anatomical conclusion, but nevertheless the point is still valid.
I suggest that if we are to sustain a difference as regards the legal age of consent for these different kinds

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of sexual acts that is not a matter of personal morality but rather a matter for the Churches and for those who seek to persuade themselves and other people of what is right for them and those who agree with them. If we are to insist on a different age, then we have to show that there is some social or medical reason why the law should intervene in this, on the face of it, strange way. I suggest to the Committee that all of the social and medical reasons, and indeed the legal reasons, support a common age of consent for all sexual acts rather than an unequal age of consent, as is provided by the law at the moment.
Perhaps I may deal first with the issue of enforcement. Most police forces in this country, including in particular the Metropolitan Police, have made it clear that the enforcement of the prohibition on homosexual sexual acts under the age of 21, or under the age of 18, is very low on their list of priorities. If we insist on an unequal and higher age of consent, we risk putting forward a law which in practice will not be enforced. Although I may not quote him, that was the very powerful argument of the right honourable Tristan Garel-Jones MP in another place when supporting the age of consent at 16.
Then there are the medical arguments as to whether 16 is the right age of consent. All medical authorities are unanimous on this issue. The General Council of the BMA says that there is no convincing medical reason against reducing the age of consent for male homosexuals to 16 and that to do so may yield positive health benefits. The Health Education Authority believes that fixing the age of consent at 16 is crucial for the health of the nation. Lindsay Neil, the HEA's AIDs and HIV sex education director, says that the current law restricts health promotion among young homosexuals. Teachers and youth workers are inhibited from passing on information:
"crucial to health promotion and the prevention of HIV infection among young gay men".
Therefore, on health grounds there is little doubt that the opinion of those who are best informed on this matter is in favour of reduction of the age of consent to 16.
What are the arguments against this? It appears to be argued sometimes that young men between the ages of 16 and 18 will be seduced into homosexual behaviour. It is argued that at the age of 16 or so they become confused about their sexuality and that to make homosexual acts legitimate would turn them into homosexuals when they would not otherwise be so. Again, all of the evidence is directly to the contrary. The Royal College of Psychiatrists says that there are no developmental reasons for not reducing the age for homosexual consent to 16. The Royal College of Psychiatrists means by that that young people do not grow up with a confused idea of their sexuality and would not be seduced into homosexuality by the fact that it is made legal.
Research carried out by the SIGMA Foundation shows that 74 per cent. of young men know what their sexual direction is before they engage in any sexual activity. Therefore they cannot be seduced into that activity and are not confused. In addition, in a very high

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proportion of cases, at the time of the first sexual act the difference in age between the two partners is a year or less. Therefore, there is not a pattern of older men seducing younger men into homosexual behaviour.
I did not go to a boarding school, so I do not know what goes on in boarding schools. But it has been rumoured that some people who go to boarding schools engage in homosexual acts and grow out of homosexuality later. If that is the case they are a relatively small minority of the population. For the population as a whole, by the age of 16 nearly all young men are aware of their sexuality and will not be diverted from it by seduction by older men.
I mentioned AIDs and HIV. I also want to talk about the wider issue of health education and what the organisations which try to help young people can do and what they think about the matter. Barnardos says:
"The present law prevents us from giving practical support and information. We find ourselves in the ludicrous situation of handing out condoms to girls who are 16 and to heterosexual boys who are 16 but not to gay 16 year olds".
Save the Children—which used to be the Save the Children Fund—says:
"The discriminatory age of consent encourages intolerance and prejudice which can seriously affect the lives of young homosexual people. There is considerable evidence pointing to high levels of attempted suicide, family rejection, bullying and intimidation of this group of young people … The protection of young people is best maintained by the consistent and fair application of the law rather than legislation which is both hard to justify and damaging in its application".
It has been suggested by a number of people who support the view that I am putting forward that this is an issue of what they call gay and lesbian rights. I suggest that that is not the case. I think that what we have before us today is an issue of human rights. It affects all of us, whether we are heterosexual or homosexual in our inclinations. We should not allow the law to outlaw the behaviour of people who are not doing any harm to themselves or to anybody else, who have no desire to do harm to themselves or anybody else and whose sexuality is determined not by themselves but by outside forces whether by nature or nurture, who is to know? We do not need to go into that question.
Those are very clear issues. I suggest that if we wish to preserve the role of the law as being the protection of society rather than the enshrining of different kinds of private moralities which do not affect social behaviour, we should oppose any state of law which encourages a different age of consent. It is not merely a matter of sexuality. This is a question of the way in which we treat each other as human beings and respect the differences between each other as human beings. If we cannot get this right what can we get right? I beg to move.
3.15 p.m.
Lord Simon of Glaisdale: I cannot see across the Chamber, I hope that no one else has risen to speak at this stage.
The Committee has before it three ages. These are not ages of consent but minimum ages at which homosexual intercourse can lawfully take place. It is somewhat misleading to speak of that as an age of consent because it leads to the argument which has just been put forward so forcefully that what is the true age of consent—

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namely, that for heterosexual intercourse—should be the guide as to what should be the minimum age of legal homosexual intercourse.
The Committee has before it three ages: 16, 18 and in effect 21. There is no proposal that the age should be higher than 21, although a number of scriptural arguments suggest that that should be so. Nor is there before the Committee any suggestion that the age of homosexual legality should be lower than 16. The Committee is therefore approaching the matter in the way in which the Wolfenden Committee approached it —namely, weighing two considerations.
First, the law should not interfere more than is required with the private activities of adult citizens. Secondly, although it should not interfere more than necessarily, the law should nevertheless, intervene to protect those who are vulnerable and immature. I assume that on the whole noble Lords favour the approach of the Wolfenden Committee which, when facing the problem for the first time because there had not previously been a minimum age, recommended the age of 21. It considered the arguments put forward so persuasively by the noble Lord, Lord McIntosh, in favour of 16, and it unanimously rejected them. It considered the arguments in favour of 18, and the minority was in favour of that age. The majority also considered that there was much to be said for a minimum age of 18. However, in the end minority and majority aligned in favour of 21. The Committee therefore may think that it would be useful to proceed on the basis of the considerations of the Wolfenden Committee. It considered the matter for three years, took abundant evidence and came to that conclusion.
What has happened since? It seems to me that there have been two significant developments: first, the menace of HIV and AIDS; and, secondly, the increasing propaganda on behalf of homosexualism. The Committee will probably consider that both those matters reinforce the argument in favour of 21 years. Nevertheless, I would favour 18; and I hope to give the Committee reasons why noble Lords should accept that figure.
First, perhaps I may deal with the argument that the minimum age of consent should be the same: that there is in some sense an anomaly if the minimum legal heterosexual age of consent is not aligned with the minimum legal homosexual age. Although, as the noble Lord justly and movingly said, there is a duty on any civilised society to show toleration; nevertheless, society cannot view impartially homosexual activity and heterosexual activity for this reason. Without heterosexual activity, society does not subsist and continue. There is another social matter. Wherever homosexual ethos has been to some extent dominant or even acceptable, the status of women has been debased. That was noticeable in ancient Greece. It is also noticeable in many places in the Middle East today.
I add one other factor to the argument on equality. The issue will run into great trouble with regard to Northern Ireland, where the age of heterosexual consent is 17, as it is in the Irish Republic. Therefore a reduction to 16 will either lead to an anomaly between Northern

15
Ireland and the remainder of the United Kingdom or to an anomaly in equality between the legal minimum age of homosexual activity and heterosexual consent.
Perhaps I may turn to arguments which, despite the developments since the Wolfenden Committee, might cause the Committee still to prefer the age of 18. First, Wolfenden was taking a revolutionary step in a controversial atmosphere. Secondly, it considered favourably 18 as the minimum age for homosexual activity. It did so while firmly rejecting 16 as the age. Thirdly—I say this somewhat diffidently because it depends on a lay evaluation of medical opinion—I do not consider that general psychiatric opinion is as categorical as the noble Lord, Lord McIntosh, suggests. On the contrary, there is a widespread psychiatric opinion that, say between the ages of 14 and 18, there is some confusion, some sexual ambivalence. One has only to think of hero worship of the captain of cricket, or of a "pash" for the games mistress, both undoubtedly sexual proclivities although neither physically consum-mated. If it is right that there is a period of ambivalence from which the bulk of the population evolves naturally into heterosexualism, that can be hindered by the intrusion of extraneous influences. Although that consideration militates against 16 as the age, it also inclines slightly in favour of 18.
The fourth and last reason is an argument to which the noble Lord referred. The House of Commons by a large majority has favoured 18. I have frequently urged your Lordships to accept confidently your independent constitutional role. However, this seems to be one of the very worst issues on which noble Lords might come into conflict with another place. The cliché of asking the other place to think again is particularly out of place in this context. As I say, the other place voted by a large majority for a minimum age of 18 and by a substantial minority for 16. It would seem to me to be a mistake not to accept what the other place decided, in particular when the decision is justifiable on other grounds, as I have suggested. So I shall vote for the Bill as it stands.
Perhaps I may say a few words on Amendment No. 164A. I was very hesitant about putting it forward. It is a probing amendment. However, I had thought originally that it would be preferable to wait to see how the debate develops. The amendment frames the counterpart of the defence to illegal sexual intercourse with a girl between the ages of 13 and 16. That defence provides that, if the man is under 21 and has not previously been charged with a like offence and he believes on reasonable grounds that the girl is over 16, he is excused from illegality.
I have tried to translate that into homosexual terms, but I am doubtful whether that was the right way to proceed. I think that the heterosexual provision has worked well and obviously what lies behind it is the sense that there is all the difference between, on the one hand, sexual activity by young people in the fire of youth and, on the other, the predatory stalking of a young girl by an older man for purposes of sexual satisfaction.
Having seen amendments which were put down later, particularly those by the noble Lord, Lord Ponsonby,

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which would narrow my age of 24 to 18 with two years' difference, I prefer his. However, I prefer even more to leave the matter to the discretion of the prosecuting authorities. On the whole, those authorities do not now prosecute when the ages are very close and where the younger one is over 18. That is another argument in favour of 18. As the Committee knows well, since the directorship of public prosecutions was instituted, the prosecuting authorities have from the beginning been given a discretion whether or not to prosecute. They have to consider the public interest as well as the evidential validity.
In March, in the debate on the subject in the other place, the Solicitor-General drew attention to that point and enunciated some of the considerations which the prosecuting authorities have in mind. Leading them were the ages of each of the parties and their relative ages. However, there were also other considerations as to whether there was an element of seduction, breach of trust or how far a crime was endemic in the area and how much it affronted public opinion. Thus I do not propose to move my amendment. I have left it on the Marshalled List, but I prefer to leave the issue which it raises to the discretion of the prosecuting authorities.
There is only one point I wish to add. I have seen it suggested that, since the prosecuting authorities now hesitate generally to prosecute where the parties are young but over 18, that necessarily means that if we accept the age of 18, it is effectually lowering the age to 16.I do not believe that that follows at all, nor that the prosecuting authorities will take that line. Although the noble Earl's department is not responsible for the prosecuting authorities, perhaps he would give some guidance on the matter. In sum, it seems to me that the argument points in favour of 18 as the minimum age for legal homosexual activities.
3.30 p.m.
The Archbishop of York: I wish to associate myself with the first part of the speech of the noble and learned Lord and with his conclusions. As Members of the Committee will realise, the whole subject has been agonising for the Churches and virtually all Churches have considered it at great length. They have found themselves in a measure divided because one is trying to do two things: first, to meet an obvious human need among people who have for too long been denigrated by society. One is trying to meet the growing aspirations of young people to discover more fully who they are and so on. Secondly, one is also aware of the social context in which that is done and the long religious tradition for which we carry responsibility and which has rightly been cautious within the area.
Some years ago, the House of Bishops produced a comprehensive report called "Issues in Human Sexuality". We did not discuss this issue, but last year, when considering the motion that was to come before another place, by a large majority the Bishops were of the opinion that 18 was about the right age, recognising that that is a compromise. There must be some movement from where we are now but they were unwilling to go the whole way towards 16.

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I wish to centre my reasoning about the matter around three related questions. First, there is the general question of how far the law should intervene in matters which are claimed to be private. We need to recognise that every society sets some limits on sexual activity, if only in order to create a set of expectations. It seems to me that when one is talking about the law one is not simply talking about what the police will do or the punishments that might be administered; one is also talking about the kind of society which one is endeavouring to embody and the expectations which people should have of one another.
One of the deeply disturbing things which has happened in our society in recent years is that so many of the normal conventions about sexual relations and when those might begin have been eroded. We are moving much nearer to what one might call the law of the jungle in sexual matters. That puts enormous pressures on individuals. Where within society there is a firm set of expectations, individuals do not find themselves under the pressure that they do in today's society where everything is saying to them: "Unless you have sexual experience early, unless you completely express yourself in whatever way you wish, unless you go along with all the exciting things which are set out in much of the sexual literature which is even now penetrating into schools, then somehow you are not a fully formed, mature human being". It seems to me that any change in the law changes expectations on those levels.
Thus, it is not simply a private matter. Indeed, one person's sexual activity is of concern to others. We have seen that again in our recent social and political life where concern about the sexual behaviour of others is not merely a matter of prurience but often much more about the kind of society which we are creating for ourselves. The law cannot easily control those matters and one must recognise that fact, but it can define expectations and it can protect.
The second question I wish to ask is: are homosexuality and heterosexuality simply alternative and equivalent forms of sexuality or is there is a difference between them which should somehow be represented in the law? We have inherited a long-standing belief that there is a difference. Much of this is rooted in Christian tradition. I do not want to stand by all that has been said and done on this subject within the history of the Christian Churches. As I said earlier, some appalling things have been done to homosexuals in the name of God. I would not in any way wish to endorse the hatred and contempt in which many of them have been held.
Nevertheless, there is something fundamental about our human nature which is safeguarded within the Christian tradition. It is a tradition which talks about the purpose of sex, which is procreational as well as relational. It is a tradition about the way in which we are made. It is a long-standing tradition about how human beings should relate to one another and where the limits should be drawn.
I hope that by moving in the direction that the other place has taken us, we can, as a society, rectify some of the mistakes that have been made in the past. That is part

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of the case for change. But I do not think that as a society we can simply say that homosexuality and heterosexuality are in all respects equivalent. Plainly they are not. Therefore, in our legislation we need in some way to define a norm. It seems to me that to have the small age difference which is represented by the figure 18 says something about society's acceptance of heterosexuality as the norm.
My third question is: how valid are the arguments that 16 year-old boys need protection? Or how valid is the argument that is put by the other side that 16 year-old boys are at risk of being criminalised if the law is not changed to suit them? We have heard quite a bit already about the medical evidence. But the fact from which we start is that nobody knows what causes homosexuality. Therefore, any interpretations of how it develops must inevitably be speculative.
In the very comprehensive Wellcome Report: on sexuality in Britain the point was made that many of those questioned regretted that they had had sexual experience too early. I believe that young people need time to discover who they are and that in the case of those who may be fairly clear about their sexual identity by the age of 16 it is not necessary that they should have actual genital experience in order to prove it. I believe, above all, that young people need to know where the boundaries lie. That is why we have to have laws in this area.
I do not take too seriously the point that young people will not be willing to go for medical or contraceptive advice or consultation about AIDS for fear of being criminalised. It seems to me that the way in which the law is applied says much more about the desire of society to help those who have got themselves into trouble rather than its desire to criminalise them unnecessarily. The evidence is that with a minimum age of 21 (or whatever) people will engage in this kind of sexual activity well below that age. I think that it is highly likely that if the legal age were 16 then in fact sexual activity of this kind would begin around 14 or so. There is bound to be, just as there is with speed limits on the road, a grey area in which those who might prosecute recognise the ambiguities and recognise particular human need. I hope that any law would be applied in that spirit. Lowering the legal age to below 16 would in practice, I believe, lower the expectations of sexual activity to an age much earlier than that.
It is manifestly true, if one compares boys and girls, that girls mature sexually earlier than boys. The psychiatrists may not know it, but every parent knows it. Again, homosexuality between men and homosexuality between women is, for very obvious reasons, different, simply because men and women are physically different. I do not profess to know very much about these matters from personal experience, but it would seem to me that homosexual relations of a certain kind between young boys must entail a good deal more physical commitment than homosexual relationships between young girls. I hope that this Committee will obey the good advice that has been given to it by the noble and learned Lord, Lord Simon, and that it will stick to the line that the other place took in voting for the age of 18.
3.45 p.m.
The Duke of Norfolk: I am a practising Roman Catholic, and I think that it is common knowledge that the Christian religion believes homosexual acts to be morally wrong. That is clearly taught in the Bible. They are considered to be unnatural, which is confirmed by the construction of the parts of the body that are involved. It is well known that some boys, when they reach adolescence, often pass through a transient homosexual phase, but that in most cases heterosexual urges have taken over by about the age of 21.
The Kinsey Reports of 1948 and 1953 concluded that 10 per cent. of the male population was homosexual. That is now thought to be widely inaccurate. In the USA, Professor Tom Smith concludes that 0.7 per cent. are homosexual. A recent estimate in the UK is that only 0.9 per cent. are homosexual.
There is a most dangerous likelihood of AIDS being caught. The Washington Family Research Institute has revealed that a homosexual lifestyle reduces life expectancy from 75 years to 42 years.
I advocate that Clause 139 should not stand part of the Bill, which would mean keeping the age of consent at 21, and not reducing it to 18, so that there would be a longer opportunity for young men to work out their psycho-sexual orientation as they grow up.
Lord Kilmarnock: I want to start from the proposition that an area of the criminal law should be no wider than it need be or usefully can be, as the noble Lord, Lord McIntosh, indicated. That applies especially to areas where it is not enforced and is unenforceable, other than at an unacceptable opportunity cost to other police activities. We have too many coercive and violent acts within society which keep the law and its agents fully occupied without pursuing consensual sexual behaviour. There are, of course, certain safeguards that are required here, to which I shall come shortly, but the point that I want to stress is that we should not criminalise people or inflict on them the fear of criminality unless there is a very strong case for doing so.
I accept that, on the other side of the coin, it is the job of the law to forbid and, if possible, to prevent people doing things to others which they do not want done to them and which, if strong enough, they would resist. It is the Government's job, in so far as it is within their power, to protect citizens against coercion or assault, whether sexual or otherwise. No government can legislate for morals but governments can and should pass legislation to protect citizens against rape, abuse and so forth.
There are other considerations to which different people will give different weight. Some will give emphasis to equality and the need to remove discrimination between the sexes as regards the age of consent to homosexual acts. I understand that there is a case before the European Court of Human Rights alleging contravention by Britain of certain articles by some young men. Incidentally, that court is not an institution of the sinister empire of the European Union, as some see it, but an institution of the Council of Europe, of which we were a founder member and whose

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Convention on Human Rights many people want to incorporate into our domestic law. It is not unlikely that we shall be obliged by that court in due course to move to equality between the sexes. But that is not my main point, which remains the futility of criminalising consensual acts and then turning a blind eye to them.
The current state of affairs is rather extraordinary. According to an Answer in another place on 17th January, there were in 1990,1991 and 1992 respectively 10, 19 and 14 prosecutions in England and Wales for consensual acts of buggery or attempted buggery with consent by males of 21 or over with males under 21, leading respectively to nine, 10 and 12 convictions. On one interpretation that is not a very impressive record of snooping; on another it is a tribute to the authorities concerned for turning their backs on a fruitless pursuit. In Scotland there is a tacit policy of disregard of such offences other than those in which exploitation, corruption or breach of trust is suspected. Details of the Scottish position are given in House of Commons Library Research Paper 94/12 on page 5.
So there is a widespread reluctance by those responsible to enforce the law. According to research commissioned by the Department of Health under the heading Project SIGMA, 88 per cent. of first consensual homosexual acts take place before the age of 21 and 61 per cent. take place before the age of 16. On whatever estimate of the homosexual population that one chooses to take, the law is obviously being disregarded daily on a very large scale with only minimal intervention by the authorities.
In another place an extraordinary argument to my mind was advanced, to the effect that the law is simply there as a framework, a set of precepts, guidelines or signals which may or not be invoked. Is that what the law means or what it ought to mean? Is it just an assemblage of indicators, flags, hints or nudges which one can take or leave alone? How would it work in relation to motoring or other offences, if the law were simply discretionary? To advocate that the law should be there as a kind of vague, admonitory instrument seems to me to be quite wrong and simply sows confusion, cynicism and ultimately a total lack of respect for it.
I turn to matters of public health. It is curious that the two most draconian Motions for debate were put down by noble Lords who profess themselves (as I am sure they are) concerned to prevent the spread of the HIV/AIDS epidemic. The noble Duke and his friends want to reverse the decision taken in the other place and to restore the age of consent from 18 to 21. The noble Lord, Lord Mayhew, and the noble Earl, Lord Clanwilliam—if I understood them rightly, as they have substantially redrafted their amendments—appear to want consensual buggery to remain a criminal offence until the age of 21. I shall now try to deal with each of those propositions.
The Earl of Clanwilliam: Could the noble Lord possibly speak into the microphone? I heard my name mentioned but I did not hear what else the noble Lord said.
Lord Hailsham of Saint Marylebone: I did not want to interrupt the noble Lord. But I am much closer to him than is the noble Earl and I have not heard a word that he has said so far.
Noble Lords: Speak more slowly.
Lord Kilmarnock: I believe it is something to do with the microphones. I was endeavouring not to delay the Committee unduly. I shall pay attention to the views of the Chamber. In reply to the noble Earl, Lord Clanwilliam, I simply said that, if I rightly understood his amendment and the amendment of the noble Lord, Lord Mayhew, they appeared to want consensual buggery to remain a criminal offence until the age of 21, even if other offences were decriminalised until the age of 18. I shall now deal with each of those propositions.
The assumption that sticking to 21 will help to reduce cases of HIV among young homosexuals not only fails to take account of the widespread non-enforcement to which I referred but also is at variance with the opinion of virtually every voluntary organisation working with young people in this field—organisations such as Barnardo's, the citizens advice bureaux, the National Children's Bureau and so on (I have a list as long as my arm); likewise, professional bodies, including not only the Royal College of Psychiatrists, which has been mentioned, but also the proverbially conservative (with a small "c") BMA. They all argue that the current law inhibits effective health promotion and safer sex education among those who most need it. The young people fear to seek professional advice because that might be tantamount to admitting a crime; and professionals and teachers are reluctant to give advice for fear of being in breach of the law themselves. Furthermore, those views are in tune with government policy. According to the Department of Health, that is founded on the proposition that prevention remains the cornerstone of the strategy to curb the spread of HIV by education and publicity campaigns.
Incidentally, I have checked with Dr. Lawrence, the senior genito-urinary physician at St. Stephen's, who has allowed me to quote his opinion that:
"the current age of consent poses a considerable deterrent to young men coming forward to be tested".
That is confirmed by Dr. Nichol Thin, who is the chairman of the Association of Genito-Urinary Medicine. It is a very serious criticism of the present law that it may lead to unwitting transmission of a terrible disease.
I understand that the amendments of the noble Lord, Lord Mayhew, and the noble Earl, Lord Clanwilliam, will be debated later. I shall not therefore pursue them any further at present. But returning to the age of 21 is not sensible, practical or even particularly moral in relation to a disease which has especially horrible consequences. We should rather be thinking of how to prevent non-consensual homosexual acts and for that there are other options. For example, the amendment which is to be moved by the noble Lord, Lord Ponsonby of Shulbrede, and which has already been mentioned by the noble and learned Lord, Lord Simon of Glaisdale, to create an offence of male rape and put it on an equal footing with the rape of a female by a male, seems to me

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to be very well worth consideration. I shall listen to the noble Lord with great care when he moves the amendment.
There are other possibilities, such as the practice in several European countries, some of which have the basic age of consent as low as 12, of running a dual-track policy, whereby a higher age applies (typically 18) when the older person is in a position of authority, influence or trust vis-à-vis the younger. That is an obvious deterrent to the abuse of power.
All the bodies that I have mentioned and some others as well want the age of 16, as I do. That is not to say that they and I do not consider 18 to be an improvement on the present law. It was recommended as long ago as 1981 by the Home Office Advisory Committee and, as we know, it was the preferred option, by a very large majority, of the other place.
We do not of course on a matter of conscience have to follow another place. But it is important to note that, taking the pro-18s and the pro-16s together, there is a very large body of opinion against maintaining the law as it stands. If the noble Lord, Lord McIntosh, presses his amendments, as I hope he will, I shall support him. If we are unsuccessful, I strongly urge the Committee to support the Motion that Clause 139 stand part of the Bill and to defeat the misplaced zeal of those who want to overturn it.
Baroness Turner of Camden: I rise to support the amendment of my noble friend that the age of consent should be 16. I should declare that I am a member of the parliamentary Stonewall group, which is a group established to campaign for homosexual equality. Moreover, it is a group which has done a great deal to oppose the kind of discrimination to which I believe we would all object. I am also a member of the council of Save the Children, which has already declare publicly its support for the age of consent as 16.
I do not want to take up much time because I believe that my noble friend has already set out the arguments for his amendment with a great deal of force and clarity. However, I support the amendment, first, because I believe in the principle of equality. I can see absolutely no case at all for treating homosexuals differently from heterosexuals. It is quite well established that young people are well aware of the way that their sexual preferences will lie some time before the age of 16. That is true for both young men and young women. It was certainly true in my own case and I am sure also for many noble Lords should they care to think back that far.
It is sometimes argued that a higher age is required for male homosexuals because of the risk that otherwise they might be corrupted by older men. I have always found it striking that no one seems to be that bothered about the corruption of young women by older men, which one would have thought to be a much commoner phenomenon.
Secondly, I am opposed to a law which treats young gay men as criminals. Between 1988 and 1991 there were over 2,000 arrests for offences involving consensual sex with men under 21 years of age. The criminalisation of such acts has quite disastrous

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consequences. As the noble Lord, Lord Kilmarnock, said, there is currently the problem of HIV infection and AIDS. It is vital therefore that young people should receive proper counselling. They must be given information that will enable them to protect their health. As it now stands the criminal law prevents such counselling being made available to young homosexual men.
It is for that reason, among others, that Save the Children supports equalisation at age 16, otherwise advice and help could be denied to young people at a time when they are most in need of it. I strongly believe that only prejudice is responsible for a differential age. In relation to the reference to the Wolfenden Report made by the noble and learned Lord, Lord Simon of Glaisdale, I would remind the Committee that the Wolfenden Report was published as long ago as 1957 and there is no logical reason to continue a differential on the lines now suggested. I sincerely hope that the Committee will support my noble friend Lord McIntosh when he calls for a vote.
4 p.m.
Lord Skidelsky: My reason for putting my name to the amendment tabled by the noble Lord, Lord McIntosh of Haringey, is simple: I want an age of consent law which is enforceable and enforced. The present age of consent law for heterosexual acts is an example of an enforceable law. The age of consent law as it relates to male homosexual acts is neither enforceable nor enforced. The most reverend Primate referred to the role of the law in setting expectations. I agree with that. But it seems to me that his argument would have been more secure had he proposed raising the age of consent for heterosexual acts to 18. The present expectations of the law are that sexual acts will be allowed at 16. Why should not homosexuals have the same expectations as the majority of the population?
I take the central purpose of the criminal law to be to deter conduct which is defined as criminal. Deterrence depends on three things: the chance of being caught; the chance of being prosecuted if caught; and the chance of being punished if prosecuted. In all those respects the present age of consent law for male homosexual acts is virtually a dead letter and the most general reason is that the existing law does not command sufficient assent to be enforced in specific cases. That is the important point.
What are the facts? Members of the Committee referred to some of the statistics. One can set them out in different ways but they all come to the same thing. At present the Crown Prosecution Service operates what is called a flexible prosecution policy in respect of male homosexual offences. The data for 1992—the last year available—show no charge brought or even caution given for consensual sexual relations between young men aged 17 to 20. In the case of consensual sexual relations between males over 21 and young males aged 17 to 20 in 1992 there were 136 cautions, 216 prosecutions, with 165 found guilty, and 12 custodial sentences. To a certain extent that may show that the law is being enforced. In fact, almost all the arrests occur in

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public places where the committing of sexual acts is an offence whatever the age of those concerned. Such arrests have nothing at all to do with enforcing the age of consent law; they are directed against public indecency.
Apart from acceptability of the law there is a good reason for the non-enforceability of the present law. It is almost impossible to get caught unless the offence occurs in a public place. On the other hand, that is not likely if the age of consent is lowered to 16. Where offences involve men over 21 with young men under 16, detection is much easier—though usually takes the form of parental complaint—simply because in nearly all cases the younger partner will still be living at home.
I hope the Committee will agree with me that it is a mark of an enforceable law that it should not be constantly exposed to the charge of being unfair and unjust whenever an attempt is made to apply it in a specific case. What is the point of having such laws? We do not expect the law on burglary to be flexibly applied. If the police apprehended burglars who had just removed the contents of my house I would find it extremely alarming to be told that the Director of Public Prosecutions operates a flexible policy and will only prosecute if he thinks it in the public interest to do so and having regard to the specific circumstances of the case. Similarly, most parents of under-age girls would find it alarming to be told that charges of unlawful sex would only be brought at the discretion of the police. Yet that is how matters stand with unlawful sex as currently applied to homosexual acts.
It is of the essence of an enforceable law that it should be enforced in every case that it is broken. I know that that is an ideal; yet if I am caught speeding I expect charges to be brought and would consider myself extremely lucky to be let off with a caution. Where it comes to the age of consent my argument is that the only enforceable law is one which equalises the age of consent at 16. There is no significant demand to legalise sexual acts below that age. We all expect the law to protect minors. We also have evidence at present that the law is enforced with respect to under-age girls, as the public expect. The same would be the case with boys who were under 16.
We tread an extremely dangerous path if we pass laws which are intended to be largely declaratory. We run the risk of so discrediting that kind of law that it becomes impossible to apply, even in cases where it ought to be applied. Nothing is more likely to undermine the effective protection of those who need protecting than to have laws governing sexual behaviour which cannot be rationally defended and in consequence cannot be enforced in specific cases.
Those in favour of retaining the present law argue that consent at 21 means consent at 18 in practice. They say that consent at 18 would mean consent at 16 in practice. If that is the case, why not go straight there in the first place? They then go on to argue that consent at 16 would mean consent at 14 or 15 in practice. But that last step in the argument is a complete non sequitur. The reason that laws which apply to 21 year-olds are not enforced is that public consent for enforcing them is not available in the specific cases, irrespective of what the

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public in general want. Where laws are enforceable we only pay attention to whether justice is seen to be done in the specific case; we do not question the justice of the law itself. That is why the law can be enforced for an age of consent of 16—because the justice of that law will not be questioned—and why it cannot be enforced for an age of consent of 21 or 18.
It is argued further that the homosexual age of consent ought to stay at 21 because under 21s are most sexually active and most likely to engage in practices which lead to AIDS. As far as we can ascertain, that is not so. The facts on buggery, for example, do not support it. The average age at which the practice starts seems to be between 20 and 21. But even if it started earlier, the argument is a complete non sequitur. It presupposes that the existing law is a deterrent. But the existing law is not a deterrent; an unenforced law does not deter. What it may deter is young homosexuals seeking advice on safer sex. It does not prevent homosexual behaviour; it simply turns homosexuals under 21 into criminals.
There is another equally unsatisfactory aspect about the present position. Young men between 17 and 20 are subject to criminal prosecution for giving consent to sexual relations whereas girls under 16 cannot give consent. They cannot be criminally liable. If the homosexual age of consent were lowered to 18, young men of 16 and 17 would still be liable to prosecution. It is completely illogical that a law which ostensibly exists to protect young people should also treat them as criminals. That is why I support the amendment which I understand will be moved later in Committee by the noble Lord, Lord Ponsonby.
Perhaps I may say a few words to the Conservative Family Campaign which has been urging us, very ably, to support the existing law of consent. Last year I supported an amendment in this House to allow parents to withdraw their children from sex education classes in schools on conscientious grounds. I agreed with the arguments then of my noble friend the Duke of Norfolk. Like him, I was against using the law to impose a particular view of sexual behaviour. But it seems to me, with respect, that he has not followed the logic of his own position on this issue. I am equally against using the law to enforce moral disapproval. The reason the present law is a bad law is that it is discriminatory. It discriminates against a particular section of the population. Catholics in this country should appreciate the force of that argument.
Tristan Garel-Jones summed up the matter admirably in another place: by voting for 18 we shall end up with the worst of both possible worlds—a newly enacted law that is not properly and rigorously upheld but … in which young people will still be in fear of criminality. If noble Lords are persuaded by the arguments for this amendment they should not be dissuaded from expressing that support in the Lobby by the fact that another place has voted for 18. In allowing a free vote the Government invited MPs to decide the matter in their personal, not their representative capacity. This sound Burkean argument should have particular appeal in this House where we are answerable only to our consciences.
The Earl of Longford: I realise that everyone hen: has their own experience of this terrible subject and that we all have our qualifications and disqualifications My main qualification may endear me for the moment—but only for the moment—to some of those who support the homosexual cause in that I was the only person who was bold enough in 1957 to espouse the Wolfenden Report by opening a debate in this House in that year when no one in the House of Commons would touch it. So no one must come and tell me that I am a queer basher or something of that kind. I moved that Motion and the attitude of the Government was not helpful. It took another 10 years and, if I may say so without bringing party into it, a great Labour Lord Chancellor, Lord Gardiner, and the Labour Party to introduce the Bill which then carried the Wolfenden Report into law. I hope we shall not be told by the Government that they have always stood for the introduction of more liberality for homosexuals. That was not so in 1957 by any means.
However, my disqualification is that my dear old friend, Professor A. L. Rowse, said of me to one of ray daughters that my trouble is that I lack homosexual experience. I do not know how many other noble Lords; lack homosexual experience.
Lord Stoddart of Swindon: Hands up!
The Earl of Longford: There are no hands going up in a contrary sense. At any rate, I suffer from that: disadvantage. It may be that other speakers have an advantage of me there.
I am standing firmly on the issue of 21. If it is said that I approach this from a Christian point of view, yes, that is perfectly true, but I realise that there are Christians—perhaps better Christians—who do not agree with me on that. I can only say that I regard all human beings as equal in the sight of God. But I cannot say that I am sorry that none of my children or grandchildren—or, so far as one can judge, my great-grandchildren—is homosexual. I doubt whether anyone here wants to bring into this world homosexual young people. I believe it is a terrible handicap in life. We have to do all that we can to help them, but certainly we must not pander to them. That would be the greatest mistake possible. In that sense, I am on the side of trying to protect homosexuals.
I was asked this morning on the radio to sum up my case in 15 seconds. I tried to and I shall try again now. I submit that if the age is reduced below 21 the amount of corruption by middle-aged and elderly gentlemen of young adolescent boys will much increase. That is 15 seconds and that is clearly where I stand. My noble friend Lady Turner said, "What about women? Why shouldn't they be treated the same way?" I am afraid that I do not think anyone here feels that women and men in this matter are exactly the same. I shall, again in 15 seconds, try to show what I mean. It is perfectly possible, as I know from experience, for young women to be prostitutes and to recover and become mothers and maybe grandmothers. But it must be rare indeed—I have studied this question in a number of different connections, including the criminal world and also the Streetwise centre for homosexual prostitutes, which has closed down—for anyone who is corrupted as an

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adolescent boy to lead a normal life thereafter. So, without more ado and taking a little more than 15 seconds, but not much more, I support the age of 21.
4.15 p.m.
Baroness Young: I unquestionably support retaining the age of 21. I agree very much with all that the noble Earl, Lord Longford, has just said. Nothing I have heard in this afternoon's debate has altered my view on this matter.
I am not standing up to apportion blame to anyone but I do think that we need to consider this matter very carefully and to answer the very clever arguments, if I may say so, that are put by all those in favour of lowering the age to 16 or 18. The first argument came from the noble and learned Lord, Lord Simon of Glaisdale, who more or less told us that we should not vote for anything else but 18 because another place has voted for 18. If one took that point seriously we might just as well pack up and go home now and not debate anything at all. It is a free vote. We are one of the Houses of Parliament and we are perfectly entitled to express our view. We have often, as a matter of historical fact, been a more accurate judge of public opinion than another place.
Secondly, I think the argument put by the noble Earl, Lord Longford, is a very powerful one. All of us know perfectly well that if the age comes down from 21 to 18 it will come down very quickly to 16; it will come down after that to 14, because the pressures will be on; and, who knows, it will be simply accepted that homosexuality is as normal as ordinary heterosexuality. It is a very dangerous path that we are going down. That is the first reason why I support retaining the age of 21.
I have spoken in your Lordships' House in the debate on the International Year of the Family and I think that one of the great dangers confronting society today is the break-up of the fabric of society. Whatever we may think of it, to have more divorces, more single-parent families and more children born out of wedlock is not really a desirable state of affairs. Every year the statistics increase and we have this army of unhappy children. This debate today seems to be one more nail in the coffin of the fabric of society because we shall simply go down a path making matters worse. All the clever arguments in the world advanced by the police, by, I am shocked to hear, Save the Children and Barnardo's, by psychiatrists, and by others, fly in the face of what the public know to be true and what experience over hundreds of years has shown us to be the best form for society, which is the family in what has always been accepted as its proper form.
I say to the most reverend Primate the Archbishop of York that I was very upset by his speech. I shall of course read it again very carefully. I am a member of the Church of England and in the church which I attend regularly I do not believe that his view is held either by the clergy, by the parishioners or, indeed, by very many members of the Church of England. We are worried. We want a definite lead on some of the moral issues of today. We should not be afraid to say that the normal is better than the abnormal. That is a relevant statement.

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I now turn to the argument about the age of 16. That seems to be the most dangerous of all. What are we going to say to schoolchildren? Will it be all right for the master to abuse the school child or for the headmaster to do so because that is all going to be perfectly all right in future? Even at 18 there are plenty of boys at school who could be subjected to that abuse. It is certainly completely counter to the Children Act, which we all agreed to a few years ago. It is setting an extremely bad example. If we consider the matter from the point of view of school teachers it will simply create a great deal of difficulty and confusion.
The noble Lord, Lord Skidelsky, made a very powerful argument about the enforceability of law. It is the argument that I read in the debate in another place. Why we should imagine that because the law is difficult to enforce at the age of 21 it will somehow become miraculously easy at the age of 18 or 16, am not at all clear. If his argument is that it is unenforceable at 21 because a lot of people consider it to be unjust, I can tell him right now that if the age were at 16 or 18 a lot of people would think that unjust, too. It is no use the noble Lord shaking his head. I am quite certain that there are a great many people—we have not taken a vote on it so we do not know—who are not in favour of the age of 16. The idea that the whole of the population of this country is in favour of the age of 16 is quite wrong and the law would become equally unenforceable.
Lord Skidelsky: Does my noble friend think that the present law as regards the age of consent for heterosexuals is considered unjust?
Baroness Young: The present age for heterosexuals has been in existence for a very long time. If I was deciding this de novo I am not sure that I would say that the age of 16 was right, but that is what we have got. But there is a very great difference which has been partly brought out. In the first place girls mature earlier than boys. On average the 16 year-old girl is more mature than the 16 year-old boy. But if a 16 year-old girl has heterosexual relations, the worst than can happen to her is to have a baby. She could lose her heart to an unsuitable man and she may be very unhappy. But there is nothing to stop her going on to have a happy marriage, children, and to live a normal life. What is so tragic for the 16 year-old boy is that if he becomes entangled with homosexuality he denies himself forever the opportun-ity for marriage, children and a normal life.
The noble Lord, Lord McIntosh, said one thing with which I agree completely. He said that the law should be there for the protection of society. I believe that the age of 16 is very young, because both boys and girls are effectively not grown up at that age. It is the job of the law and of adult society to protect them and to try to prevent this sort of thing happening; either homosexual or heterosexual sex, for that matter. That is my own personal view. I believe that we would have a much better society if adults truly fulfilled their responsibili-ties to the young without being ashamed to say what they believe to be right.
I have two points to make in conclusion. I speak not only as a Member of your Lordships' House, but as a mother. I have three daughters. I look at my four young

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grandsons and ask myself frequently what kind of a world are they growing up in and would I really like for them to have sex or homosexual sex at 16 or 18. The short answer is that I would not. I believe that most mothers want their children to grow up as normal adults. They want them to marry and have children and grandchildren. That is a very normal fact of life which we should remember.
My last point is a political one. I make it to some of my colleagues who seem absolutely convinced that 18 is the right age. I do not believe that there is any public support for lowering the age for homosexuals. There is, of course, a homosexual lobby which has been very strong in arguing its case. Like a lot of people who put up rather doubtful cases, at times they can argue it very well. But the idea that the mass of the people of this country believe that this is a most urgent matter is not true. For the Conservative Party to be supporting these arguments seems to me to be quite contrary to all our general beliefs. I believe very strongly that we should keep to the age of 21 for the reasons I have advanced. I hope very much that the House will support my noble friend the Duke of Norfolk in his proposition that Clause 139 shall not stand part of the Bill.
4.30 p.m.
Lord Annan: It is nearly 29 years ago since I made my maiden speech in your Lordships' House. It was on the Third Reading of the second Bill of Lord Arran, who introduced the Bill—I remind the noble Earl, Lord Longford, that it was he—to make homosexual acts between consenting adults legal. I spoke in support of that Bill. I am glad that at any rate today nobody is trying to overturn the provisions of that Bill.
Before we go any further about the ages of 14, 16, 18 or 21, I wonder whether we should not distinguish what young men are like. Twenty nine years ago I had much more confidence in my judgment than I have today about what young men are like because I was in daily contact with them and with young women at university. I remind the Committee that we are an elderly House. We need to take into account whether we really know what young men are like today.
There is one thing which is perfectly clear: there are always going to be some who are going to be congenitally homosexual; psychologically and physio-logically, they are predestined to that end and no amount of psychiatric or hormone treatment will alter that. When Lord Arran's Bill was being debated there was certain things that could not be mentioned. One could not mention that this country's most prestigious painter; our most famous choreographer at the Royal Ballet; our most renowned composer of classical music whose operas had been performed all over the world; and the best known and finest English-born poet, were all homosexual and could never have been anything else. Two of them were devout Anglicans.
There is one further matter. Unless anyone should think that I am merely citing a lot of eccentric artists, perhaps I may remind the Committee of one tragic case. During the war one person, perhaps more than any other, prevented us from losing the war (of course, not winning it, but he prevented us from losing it) and that

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was a scientist, a fellow of my college at Cambridge —Alan Turing. He broke the Enigma code and enabled the Royal Navy and Coastal Command to defeat the U-boat offensive. He saved us from starvation in this country. When later he was a professor at Manchester he was apprehended. A young man whom he had befriended stole some of his goods. In his naivety he went to the police. The police said: "What were you doing with that young man?" He was arrested,, tried and convicted. He was sentenced to undergo hormone treatment. He grew women's breasts and in his disgust he committed suicide.
We should not forget cases of that kind and we should realise that in their lives some people will be forced to be and will continue to be homosexuals. It is absurd to say, when such people have passed the age of majority: "You must wait until you are 21 before you give vent to your natural feelings. If you do not wait, we will prosecute you". Do we really want to put such people in the dock? Let us not forget the line of that remarkable classical scholar and poet, A.E. Housman, which he wrote after the trial of Oscar Wilde, though of course he did not publish it during his own lifetime because he could not:
"They are sending him to prison for the colour of his hair".
Of course we all know that the vast majority of our fellow men are stoutly heterosexual but there are young people who want to experiment when they are young. They experiment mostly with ideas, and some of the ideas which we hold when we are 18 or 16 we may look back on in later life with some amusement. But of course some of them want to experiment with other things: with drugs, gambling or sex. They may well have homosexual affairs. But in my experience, for example, at boarding school, highly-sexed boys of 16, 17 and 18 may well have had homosexual relations with other boys, but that did not mean that they would be homosexual for the rest of their lives. I must say that to the noble Baroness, Lady Young. In my experience, and particularly at university, many of those who are homosexual happily marry within a few years of going down.
So I imagine that those who oppose this amendment have in mind another kind of young man: that is, the kind of young man whom we describe as "immature". Our Victorian ancestors would have said that such a young man was a weak character, infinitely seducible by ideas, by groups or by whatever is fashionable or faintly unorthodox. I suspect it is these young men whom the movers of amendments to keep the age of consent at 21 or even 18 have in mind. They have before their eyes the picture of some inexperienced youth being taken up by a homosexual clique and being seduced to that way of life for the rest of his days.
That is not absurd, and I do not agree with the noble Lord, Lord McIntosh, when he rather pooh-poohed the possibility that anybody could be seduced to a homosexual way of life. I think it is very possible. Today the gay culture beckons openly, in a way that 30 years ago it could only do clandestinely—though it was not as clandestine as all that. At some time in their lives

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susceptible young men are going to meet this culture and they may be attracted to it. However, their character will determine whether or not they go over to it.
Is that a reason for differentiating between the age at which men and women may have sexual relations? I would have thought that the case was overwhelming for revising the age for consenting homosexual acts from 21 to 18. The age of 18 has been for some 30 years now the age of majority and if a young man is eligible to vote, it seems to me that he is eligible to go to bed with a consenting partner of his choice. If he is old enough to be called up and fight for his country in time of war, he is surely able to make up his mind about other things. He can marry a woman without anyone's consent but hers at the age of 18. And who set this age of majority?— Parliament. It really does not make sense if we now say, "Yes, 18 is the age of majority but not in this particular instance". Either someone is fully adult or he is not.
Of course it is true that there is an anomaly. It is legal to have sexual intercourse with a girl of 16. I suspect that that age was fixed a very long time ago, because by then a woman is fully mature and can have children. If the age were to be any higher the courts would be filled with cases of rape and indecent assault. In fact today, with better nutrition and health, women mature much earlier. One can see lively young women of 14 playing at Wimbledon. But here there is a distinct difference between women and men. Boys at 14 are spindly and you will not find any of them playing at Wimbledon. That is a major difference between the sexes. There is no question about it: women do mature earlier than men. At the age of 16 there is still a difference between them. I also maintain that women at the age of 16 are far more sensible than boys at 16. Your Lordships may say that that is a lot of subjective rubbish, but I do not think it is more subjective than some of the psychiatric evidence which has been cited to us this afternoon.
So why should the age be different for a young man? A case could be made—and I would rather enjoy making it—that women are a great deal more mature at the age of 16 than men. But while psychologists might agree and declare that adolescent males at 16 are apt to be assured and keen to prove that they are older than they are, I doubt whether that is evidence enough for distinguishing between the two sexes when it comes to a question of sexual choice and having sexual relations.
I was actually much moved by what the most reverend Primate said on this. He said that there is a case to be made for the difference between 16 and 18, if only to distinguish between the kind of sexual conduct which is necessary for the welfare of the race and that which is deviant. I hope that all members of our society, whatever their views on homosexuals might be, would agree with that. The fact that there are large numbers of deviants is not a reason for denying that difference and therefore I find myself torn between wishing to have, as the noble Lord, Lord Skidelsky, pointed out, one age which is the same for men and women—16—and, as my noble and learned kinsman Lord Simon so eloquently spoke for, the age of 18 as being the sensible and right age. I will in fact listen further to arguments put forward

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before I make up my mind and I shall speak further on the amendment which the noble Lord, Lord Mayhew, and the noble Earl, Lord Clanwilliam, are moving.
Earl Russell: It gives me great pleasure to hear the noble Baroness, Lady Young, arguing for our right to stand up to another place. I shall remember that. But it does not follow that on this occasion we need to exercise that right. I would also like to say—and this may be necessary to prevent misunderstandings—that I entirely agree with the noble Baroness about expectations for our children: mine are as hers. But if I had had any occasion for doubt in this matter, I could have thought of nothing more disastrously self-defeating, either for their sake or for mine, than to call in the assistance of the criminal law for determining their sexuality.
I am here to speak in favour of the age 16. It seems to me to be the only just and equitable conclusion and also—and this may at this stage of the debate be more important—it is the only one which will prevent this debate from recurring over and over again. However, I am also here to oppose the amendment that the clause should not stand part, to oppose any reversion to 21. I quite understand, and indeed sympathise with, the fact that a large proportion of the Committee feels a distaste for homosexuality. I also understand that a proportion of the Committee regards it as a sin. I will ask them to pause before they translate their own distaste or their own conscience into the criminal law of the land. There is wisdom in the words of St. Thomas Aquinas that human law can neither punish nor even prohibit all that is evilly done.
We in this Chamber are in a position of power, although sometimes it does not feel like it! If we want to prohibit something, we have a chance to do so. The urge to say, "It's bad. There should be a law against it", is very instinctive and deep. It tends to lead to the overloading of the statute book. That argument was made familiar in the debates on the deregulation Bill but it also applies in moral matters and in many others. Perhaps my favourite example is the farmer who in 1640 wrote to his MP to urge him to make a law to stop the sparrows eating his grain. A more topical example is the Act of Parliament of 1531 with the most catch-all Long Title I have ever heard. It is:
"An Act against buggery, Welshmen, vagabonds and other misdemeanours".
It is for that kind of reason that we should pause before we overload the statute book.
I want to consider some conditions which stretch way beyond this debate. Before attempting to incorporate our own dislikes in the criminal law, we should try to check those conditions to see whether they are satisfied. The first is that the Act must command general assent. I do not mean that everybody should agree; I mean that it should be acceptable and tolerable so that we can submit to it being enforced. Perhaps I may take an extreme example. I lived for five years in the state of Connecticut in the former colony of Newhaven where there is still in force a 17th century law which makes it a crime to kiss your wife on a Sunday. I will freely admit that while I lived in the state of Connecticut I was a criminal. I do not usually lightly break the law but on that matter I did so with a clear conscience.

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If the law does not meet the test of public opinion, either it will not be enforced—as the noble Lord, Lord Skidelsky, argued—or, if it is enforced, it will not achieve its objective. In 1637 the Earl of Strafford wisely remarked that a prince who loseth the force and example of his punishments loseth withal the greatest part of his dominion. If the punishment is not shaming because, by a large proportion of the population, it is not thought to be being inflicted for something wrong, it does not achieve the desired effect.
We are in an area in which there has been a rapid change in public opinion. I have followed it since I first spoke as an under-graduate in the debate on the Wolfenden Report. Change has taken place slowly since then but during the past year it has become very rapid indeed. Therefore, the movement is away from those who want to keep the law as it is. It is away from them in particular among the young. Among those I teach, the case for the imprisonment of homosexuals is as totally incomprehensible as the case for the burning of heretics. In that situation, invocation of the criminal law is risky. In a divided society, which we must all admit we are, where we consider the criminal law the burden of proof must be on the prohibitor.
The second test is that a law must be enforceable. I listened with care to what was said by the most reverend Primate about setting a norm. We heard that argument in this House on the debate on war crimes. I believed —and when it came to the vote the House believed too —that it was not good to put on the statute book an Act of Parliament which we considered could not be enforced. Since then the history of the issue of war crimes has on the whole persuaded me that that stance was correct.
Apart from the difficulty of public opinion, there is the difficulty of enforcement; most of the offences take place in private. The same difficulty was faced by another place when, in 1650, it decided to make adultery a capital offence. At the last moment, one experienced Member—I will not say in what sense I use that term —inserted an amendment to make conviction require two witnesses. I believe that there is one lone conviction under that Act.
One cannot change sexual orientation by law. It is not an act of will, so it is not something which we can suppose is in any way a matter of expectation. I do not believe that what the law says is likely to influence that. As regards either sex, at no time has it been possible to impose chastity by law. Therefore, I remain to be convinced that if the law retains the age of 21, one fewer homosexual act will take place than if it is changed.
So if the law achieves nothing one must move on to apply the Benthamite test; does it prevent more pain than it causes? As Bentham put it, all punishment, being in itself pain, ought to be admitted if only to avoid a greater pain. I do not believe that the provision will reduce homosexual acts, nor do I believe that people will be abusing their pupils. We must remember and welcome the fact that it has become more unacceptable than previously to abuse heterosexual pupils as well as homosexual pupils. It is the abuse which is the offence in that case, and that we must hang on to.

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I will take one example among many of the pain caused by the present law. It comes from my own brief. Members of the Committee may not be surprised to hear that it is the case of 16 and 17 year-olds who encounter the social security system. Of those who make severe hardship claims, 65 per cent. do so because they were thrown out by their parents. Many of them were thrown out by their parents because they were discovered to be homosexual. While what those people do is criminal, they have great difficulty when thrown out on their own in a big city in asking for any help for fear that they may be prosecuted. Instead, some of them become rent boys because they must eat, and because the pay is higher they tend to do it without contraception. I would have thought that the risks of that were obvious. Therefore, the law does not pass the Benthamite test that it. prevents more pain than it causes.
Finally, I turn to the issue of another place. I agree with the noble Baroness that we can reject what another place does. When I argue for that, I am usually arguing for challenging the power of a government who need checking somehow. But again I would propose some conditions for the circumstances in which we may usefully challenge another place. I would do it if any one of those conditions were satisfied. The first is that we should have strong support in public opinion.
This Chamber should be wary of raising the cry that was raised in 1832 and 1911 of Peers versus people. When in the case of the eyes and teeth tests 87 per cent. of public opinion was on our side, that was a reason for asking another place to think again. Where all informed opinion is on our side, as in the case on the debate on the cab rank rule in the Courts and Legal Services Bill, there is good reason to ask another place to think again. Where we are arguing a major constitutional principle, as we were in the case of the police committees on the Police and Magistrates' Courts Bill, there is good reason to ask Members of another place to think again—
Lord McIntosh of Haringey: They did.
Earl Russell: As the noble Lord, Lord McIntosh, says, they did, and we owe much gratitude to him for his efforts in helping to persuade them to do so. In any of those cases, we were within our power to ask another place to think again. But in this case, if we send the Bill back to another place, we are taking on a very large majority there with the tide of public opinion moving against us; and it is moving against us fastest among the age group to which the law will apply most. Finally, if we send the Bill back, we should take care because the other place may change its mind and vote in favour of the age of 16.
Lord Ashbourne: I shall be extremely brief. As noble Lords have had some difficulty this afternoon in hearing speakers, if anyone finds it difficult to hear me, if they will raise one hand, I shall do my best to increase the volume or improve the direction, as may seem appropriate. Homosexuality is unnatural. It is a perversion. We are told in the Book of Leviticus that it is an abomination to the Lord.
I was extremely pleased to hear the most reverend Primate the Archbishop of York explain and argue so

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cogently this afternoon that homosexuality is not just an alternative to heterosexuality. I agree entirely with him about that. Homosexuality is unnatural; heterosexuality is entirely natural. Therefore, there is a fundamental difference between the two.
Therefore, I urge Members of the Committee to vote Not-Content to Amendments Nos. 160A, 161A, 163A and 164A, and I agree with my noble friend the Duke of Norfolk that the Committee should oppose the Question that Clause 139 shall stand part of the Bill.
Lord Stoddart of Swindon: We are having a very good and civilised debate this afternoon. It is taking place on the basis of an amendment inserted by another place into the Criminal Justice and Public Order Bill. The noble Lord, Lord Skidelsky, said that the people in the House of Commons who had moved the amendment and voted upon it did so in a personal capacity. Of course that is true. But he should not forget that they are also representatives. Therefore, they have a duty to those whom they represent. I believe that the duty which Members of the House of Commons have to those whom they represent means that they should at least discuss the matters with their electorate before they, willy-nilly, without any notice, insert into a Bill—a Bill that has little to do with the issue—an amendment of very great note and anxiety to many people up and down this country.
I wonder whether the mover of the amendment—I believe it was Mrs. Currie—to reduce the age of consent to 16 had discussed that matter with her constituents at the general election which took place not so long ago. I wonder whether any of those Members who voted in another place—because they are still representatives, unlike us—discussed with their constituents the issue of reducing the age of consent for homosexuality to 18. My guess is that they had not. Therefore, as is so often the case now, the general public is excluded from the debate. I believe that that is altogether reprehensible. It would have been far better to have had a much longer debate in which the general public could have taken part and we should then have been able to know better its opinion.
Having said that, I wish to say why I oppose my noble friend's amendment to reduce the age of consent to 16 and to say also why I shall also oppose the amendment in favour of keeping the age of consent at 21.
In the first place, I believe that there is a difference between young men and young women. I have a daughter and I have two sons. I know that the rate of maturity was different for my daughter compared with my sons. Therefore, I believe that that is a relevant argument which draws me to the conclusion that I should vote against my noble friend's amendment.
But as the noble Lord, Lord Annan, pointed out, there is a relevance in relation to the question of 21 or 18. When the Sexual Offences Act 1967 was passed, the age of majority was 21. Of course it was logical that the age of consent for homosexual acts should be put at the age of majority. For my part, that is the sticking point. Parliament in its wisdom reduced the age of consent

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from 21 to 18. Therefore, it really would be odd if we saw just one simple act as being outside the age of majority.
After all, at 18 people can now buy houses. At the age of 18, they can go to war, and have been able to do so for a hell of a long time. They can do virtually anything at the age of 18. That is the age of majority. That is why I shall certainly vote against the retention of 21, and I shall vote to keep the amendment which was passed in the House of Commons as it is. I do not do that because that is what the House of Commons did but because I believe that is the sensible option.
Finally, I wish to deal with one other issue. We have heard a great deal about equalising the age of consent at 16. But of course, we are not doing that. The acts are different. This amendment does not provide that acts of buggery should be permitted with females. We are saying that they should be permitted only with males. Therefore, there is no equality. It will remain an offence to commit an act of buggery with a female aged 16 or any other age. Therefore, when people are voting and thinking of reducing the age to 16 on the basis of equality, they should understand that there is no equality in what we are now trying to do. I repeat that it will remain an offence to undertake an act of buggery with a female of any age.
Therefore, for all those reasons, I cannot support my noble friend's amendment, although I shall not go so far as to support amendments which would alter the age of consent from 18 to 21.
Lord Renfrew of Kaimsthorn: In speaking in favour of the amendment in the name of the noble Lord, Lord McIntosh of Haringey, and those grouped with it, at the same time I should like to make clear why, at this stage in the passage of the Bill, I believe that the noble Lord, Lord McIntosh of Haringey, might do well not to put his amendment to the vote, although if he does, I shall feel obliged to vote with him.
Since the passage of the Sexual Offences Act 1967, it has been the principle of our law that consensual sexual acts taking place between two adults in private are not unlawful. There may be various such acts which can be considered sinful, according to widely held moral and ethical codes—and adultery would be one such— but that does not make them unlawful. We also have the principle that it is unlawful for adults to have sexual relations with minors. That principle would find agreement with most Members of the Committee.
What is most deeply offensive about the present situation, as it applies before the passage of the Bill, is that it criminalises a significant and very vulnerable minority within our society; that is to say, young homosexual men between the ages of 16 and 21. If the Bill as it has come to us from another place is passed in its present form, it will still criminalise those young men between the ages of 16 and 18 who give physical expression to their feelings.
The manifest injustice and inappropriateness of the situation—in effect, to criminalise a significant minority of young men between the ages of 16 and 18—is such as to cause deep unease to what I judge to be the great majority of young people today, including the great

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majority of those young men and women who would personally find homosexual relationships so far as they are concerned unattractive or distasteful.
The point has been made that Members of the Committee are in general rather older than the individuals on whom we are focusing this afternoon. However, I have the opportunity and the privilege of talking about many matters with people in those age ranges. I can assure Members of the Committee that those with whom I have spoken in general—although not all of them—feel that criminalisation process to be inappropriate and distasteful. Perhaps I may stress that that is the view of women students, with many of whom I come into contact, as much as men students.
Moreover, many women students—and, no doubt, many young women in the present world—also find themselves to be vulnerable. I believe that the suggestion was made earlier in the debate that many women would be distressed or would disapprove if the age of consent were lowered from 21. However, I can assure Members of the Committee that there is a feeling abroad among young women as much as among young men that one has to be more sensitive about personal relationships. One does not have to be a woman feminist to feel that quite acutely. That feeling of awareness extends to young homosexual men as much as to other sectors of society.
As we have heard, the practical consequences of the present situation are that, in criminalising this vulnerable segment of the population, society is making it more difficult for them to seek the advice and guidance that some of them need or wish to have, including guidance about health. Indeed, some Members of the Committee have spoken about their concern regarding the risks to that section of the population of incurring AIDS or, more accurately, of being infected with the human immuno-deficiency virus which causes AIDS. As we know, most of those public bodies which are concerned with health care see the criminalisation of those young people—and the bar that that sets up to their receiving proper advice and guidance—as a health risk and not a safeguard. That is certainly true of the all-parliamentary group on AIDS and other specialist groups about which we have already heard.
The argument is not confined to the practicality of applying the law and to justice and the avoidance of inequality together with the avoidance of harassment and discrimination which are prevalent in our society; it is also, as many members of the Church of England have recognised, concerned with morality. If we are speaking of family values, I submit that it is no longer acceptable to cast out of the nuclear family, or the Christian family, those young men who are homosexual. I should remind Members of the Committee that the law wisely takes no account of women who fall within that category. I was encouraged by the remarks of the most reverend Primate whose views coincided to a significant extent.
I have received with unease a flow of lobbying literature, some from a group calling itself the "Conservative Family Campaign", and other materials which contain a tide of something which many would consider to be assertive dogmatism. In view of the

38
appropriate tone of the Committee's debate, I shall avoid the word "bigotry" although it did flash through my mind. Some of the material manifests that particularly British ability to marry puritanism with prurience and displays what might be considered an unhealthy preoccupation with matters sexual. I hope: that many Members of the Committee will agree that family values today include moral support and constructive help for all our young people whatever their sexual inclinations, into which it is not necessarily our business to inquire.
As for the Conservative family, perhaps I may say that I believe it to have been an important symbolic act: when my right honourable friend the Prime Minister invited Sir Ian McKellen to meet him at No. 10 Downing Street. In reading Hansard, I have been impressed by the quality of debate on the subject in another place as well as by details of the voting. So let: me go so far as to say from this side of the Committee that I, for one, resent those lobbyists and campaigners who, purporting to speak in the name of Conservatism, in some cases equate that outlook with what can only be described as homophobia. However, I would certainly not apply the latter to any of the observations made in Committee today.
For those reasons, I favour the amendment moved by the noble Lord, Lord McIntosh of Haringey. However, as other speakers have indicated, I feel that it may not be our place to seek to overturn what was decided by a free vote in another place. It is true that the voting there was close on the 16–18 issue with, I believe, some 280 votes in favour of the amendment and 307 against. However, I do not believe that we should seek to reverse that decision. I make that argument with greater force as it can be applied consistently—as, indeed, was done by the noble Lord, Lord Stoddart of Swindon—in opposing the Motion standing in the name of the right reverend Prelate the Lord Bishop of Chester, and others, that Clause 139 should not stand part of the Bill.
5 p.m.
Lord Jakobovits: As a member of the faith community that started the whole argument that we are debating today by ruling in its legislation that homosexual conduct was not only immoral but also illegal, I feel heartened by the valuable contributions made at the outset of our deliberations, most notably by the most distinguished spokesmen of the two Christian denominations who greatly enriched our discussions. I fully endorse not only their general trend but also that of many other speakers who followed them and who support the amendment.
For my part, if I have some hesitation in giving my support to the upper age of 21 it is because I do not believe that even at 21 things that previously were an offence and immoral can suddenly become moral simply because someone has passed the age of 21. Can it be argued that two consenting individuals contemplat-ing or committing an act regarded as immoral under certain circumstances should be exempt from culpability once they reach a certain age? Also, why do we brand as illegal bigamy, which is a moral offence, and adultery, which is still a moral offence, as well as

39
incest? They are all moral offences; nevertheless, they are still branded as illegal and actionable. In other words, there is a discrepancy between regarding certain moral spheres as being outside the reach of the law after a certain age and other equally immoral acts as still being within the law; that is, within our accepted legislation.
Moreover, speaking now on a broader scale, I am likewise puzzled as to why we often have the attitude that it is minors or younger people who must be protected against abuse and, above all, against corruption. It is as if people who are over 21, or over 30, or over 40 are not equally prone to be corrupted by literature that is corrupting or that is indecent, or by films that are indecent. As a matter of fact, I think they are more prone because they are more mature and therefore are likely to be more influenced by what they read and by what they see. The whole notion that morality, as it were, is only to be enforced and applied to the young, and that those who have reached maturity are no longer to be governed by some form of self-restraint or self-discipline that keeps our lives within certain well defined limits, is one that I cannot accept as being basic to the kind of society for which we are looking.
This leads me to what is, I believe, the major point here. As has been pointed out, the law must not only be something that enforces obedience to a certain code of life but also something which sets the standard. Our society has paid enough for allowing the doctrine "as long as it makes you happy" to be the gauge to what may be done and what should not be done. We live in a society where the pursuit of happiness is the summum bonum, the ultimate aim of life, and as a result we pay for that today with higher divorce rates and higher crime rates because we indoctrinate our youth to feel that whatever makes them happy is legitimate. I cannot see how we, whose role is not merely to reflect public opinion but to help in forging it, can endorse that view especially at a time when already we have departed so devastatingly from the norms that would make for a decent, self-controlled and upright society.
For my part, I must say finally that I believe we are bound, as the most reverend Primate mentioned, to set the kind of standards that will influence society at large and the country at large as an example and as an expectation, even if we cannot in all cases enforce them. The illegitimacy of an act is independent of the power always to enforce standards, and therefore I hope that we shall give a signal to our society and to the world at large that we still want our children to be raised in an environment in which the difference between right and wrong is inculcated by teachers, by parents and certainly by ourselves.
Lord Renton: Although age has been mentioned several times in this debate, the fundamental facts with regard to it have not yet been put before the Committee, and I take the liberty of doing so. In answer to a Written Question that I tabled earlier this year, we were told that in 1993 over 1,000 people in the United Kingdom died of AIDS, and 732 of them were homosexual men. Some

40
of those homosexual men were bisexual, but I would have thought they were a minority. If we lower the age for homosexual consent, taking it either below 21 or below 18, it cannot be denied that more homosexuality will be practised. I would have thought that it is likely that more young men will be infected with AIDS.
The experts say, "Oh that is inevitable whatever we do about the permitted age, so let us legalise it so that people will turn up for medical treatment". The experts think they are more likely to do so. That is the view expressed by my noble friend Lord Renfrew of Kaimsthorn, and I respectfully disagree. I think that is a fallacious argument for two reasons. First, those who become infected can get medical treatment anyway, and it is such a fatal disease that they are crazy if they do not apply for medical treatment. The second argument is this—if we make it lawful for people under 21 to be homosexuals, many more will be exposed to the risk of AIDS and many more may die of it. God forbid that we should do so!
5.15 p.m.
Baroness Jay of Paddington: I rise to support my noble friend's amendment and to disagree respectfully with the contribution of the noble Lord, Lord Renton. I declare my interest in this matter as the founder director of the National Aids Trust and as someone who is at present a member of the governing body of a number of the voluntary and educational organisations which have been referred to by the noble Lords, Lord McIntosh of Haringey and Lord Kilmarnock, in proposing the amendment, and which have rightly identified their total support for more health education in this country.
I would respectfully say to the noble Lord, Lord Renton, that the point is not that people will be cured of HIV by coming forward for medical treatment as there is no cure. The argument is that more people will be prevented from catching this virus if there is better education that is more widely available at a younger age. That is a simple fact which is well known, as I say, to all these bodies which have completely identified themselves with the amendment of my noble friend because they understand that homosexuality will not be spread by lowering the age of consent but rather that appropriate education will be spread and that will prevent the spread of HIV.
Lord Craig of Radley: We have been discussing inevitably very much the impact of this measure on the homosexual community and on the individual homosexual. I believe it is also right to consider the feelings of the vast heterosexual majority in reaching our decision on the matter of age. I personally do not wish to be aware of what may go on in private between consenting adults, but I find it obtrusive when those of homosexual tendencies choose to parade their feelings vociferously, and sometimes objectionably, in public. I nevertheless believe we must accept this public manifestation now between male adults; but I ask myself whether we should accept it also between adults and those who are still legally minors. I would find that

41
particularly objectionable. I believe that in reaching a decision on age in relation to this matter, we should not overlook that point.
Viscount Mountgarret: I should like to lend my support to my noble friend Lord Renton in his argument about AIDS. I would go further and suggest that if we were to consider lowering the age of consent even further to 16, there is a real danger that in many schools where pupils have not yet finished their education, we may well open the flood gates to all sorts of unacceptable carryings on. I feel that it is correct to leave the age of consent as it stands at present. If the argument of my noble friend Lord Renton is carried through to its conclusion, it could almost be argued that the age of consent ought to be raised to protect people from themselves.
The noble Lord, Lord Stoddart of Swindon, produced an argument which I believe is fallacious. He said that just because the general age of consent had been reduced some time ago from 21 to 18, it would seem odd to leave the age of consent in this matter at 21, and therefore it follows naturally that it should be reduced to 18. But that surely is a case of the tail wagging the dog. Am I not right in thinking that there was a time when the coming of age was 21 but one could obtain a full driving licence at 17? If one followed the argument of the noble Lord, Lord Stoddart of Swindon, to its conclusion young people could not have had a driving licence at the younger age. Reference has been made to whether this Chamber has the right to overturn what has been considered in the lower House.
Lord Stoddart of Swindon: I am most obliged to the noble Viscount for giving way. I did not say that the age of consent had been reduced from 21 to 18. I said that the age of majority had been reduced from 21 to 18. That is quite different. The point that I sought to make is that if, at the age of 18, people are able to make major decisions about their lives in financial and economic terms they should be able to make decisions about their personal lives as well.
Viscount Mountgarret: I apologise to the noble Lord. I must have expressed myself extremely badly. I meant precisely that. The tail is wagging the dog. In my view the age of majority has nothing to do with the age of consent in this matter.
As to the constitutional position, I do not believe that that should form part of our deliberations in making up our minds which way to vote if this matter is pressed to a Division. This Chamber exists in order to assist the other place in coming to decisions. The fact that the other place reaches a particular decision on one matter does not necessarily mean that it is always right. It would be incorrect for this Chamber not to exercise its power in order to give the other place an opportunity to reconsider the matter.
This matter is non-political. It will be a free vote. Therefore questions of manifesto undertakings or the Salisbury convention do not come into play. I hope that if the matter comes to a vote we shall express our views, even if that means overturning the decision of another place.
Lord Ponsonby of Shulbrede: At Second Reading I made it clear that I should have preferred to have concentrated our consideration on Clause 139. Nevertheless, I warmly welcome the opportunity to debate lowering the age of consent to 16. I am grateful to my noble friend for providing that opportunity.
The arguments have been fully explored in relation to possible ages of consent. However, in my view the central issue is that homosexuals are people in their own right. They are not corrupted heterosexuals; they are not recruited to be homosexuals.
I remind the Committee that a case is pending before the European Court of Human Rights concerning the homosexual age of consent. I do not know what the outcome of the case will be, but that court has already forced a number of European countries, including the Irish Republic, to reform their laws in this area, with no noticeable harmful effects on the wider society in those countries.
I find it shameful that our fellow citizens should have to go to the court on this matter. We took on the treaty obligations embodied in the European Convention on Human Rights because of the horrors which occurred in Europe 60 years ago. It is often said that the convention is a minimum standard. I believe that we should be in advance of it if we are true to the best traditions of that standard.
I do not believe that anyone ever sets out to infringe human rights. That happens because of a blindness or lack of imagination. For some apparently plausible reason one pretends that someone unlike oneself does not deserve or should not be given the fair treatment one would wish to receive oneself. That is to pretend that our society need not be built on the ideal of loving one's neighbour as oneself. That is the principle on which I base my belief on equality for homosexuals.
If there were any evidence that homosexuals damaged the fabric of society I might hold another view. If there were any evidence that a differential in the age of consent did anything to limit the incidence of homosexuality I might have another view. I should not like the discrimination any better, but there would at least be some reason to believe that the law would achieve the end that was sought.
What are we left with? Some believe that society has the right to legislate simply to express its disapproval of certain activities. We have heard much about the morality of homosexual behaviour this afternoon. I find the idea of society having rights which override the rights of human beings to equality very dubious. But perhaps I am just an old-fashioned socialist.
I believe that this Chamber is united in believing that people need to be protected from those who would take advantage of them. We all need protection from sexual assault. The amendments in my name—which we shall come to in due course—have that as their common theme. But young people need respect from the law in order to learn respect for the law. They will not respect us if we use the law to enforce our prejudice against their natures. I do not believe that their homosexual contemporaries will respect us either. Homosexuality is widely accepted outside this Chamber as part of a rich

43
diversity of life, particularly among the young. We are not considering this matter in a vacuum; we are legislating for the real world.
Earl Ferrers: This subject is one on which people of all types, whether inside or outside this Chamber, feel very strongly and on which they hold strong and sensitive views. Whatever one's own opinion, those are views which we must respect. The debate this afternoon has respected the views of others.
We must be clear that the effect of Clause 139 is to reduce from 21 to 18 the age at which two men may engage in homosexual acts in private anywhere in the United Kingdom. Amendments Nos. 160A, 161A and 163A would reduce the age of consent to 16. This is an issue of conscience, which the Government consider falls properly to be decided by a free vote. The Government will respect the will of Parliament when the Bill completes its passage.
Perhaps I may turn first to Amendment No. 164A in the name of the noble and learned Lord, Lord Simon of Glaisdale, to which the noble and learned Lord spoke in connection with the other amendments in the grouping. The noble and learned Lord's amendment seeks to make allowance for the "mistake" as regards age. The noble and learned Lord said that it was a probing amendment. It is fairly complicated, and I shall do my best to explain the difficulties.
The amendment reflects a similar provision in the law that if a man under 24 has sexual intercourse with a girl who is under 16 but whom he believes to be over 16 he does not commit an offence. However, there is one significant difference between the two situations. A girl who is under 16 does not commit a crime if she has sex with an older man. However, a young man who is under 21—or 18 if the Bill becomes law in its present form —is liable to prosecution if he commits a homosexual act, whatever the age of the other party to the act.
The noble and learned Lord's amendment would have the curious effect of leaving the younger man free from prosecution if the older man thought he was over 18, but the younger man would be liable to prosecution if the older man thought he was under 18. In other words, under the noble and learned Lord's amendment, if a 23 year-old man thought that a 17 year-old was actually 18, both the 23 year-old man and the 17 year-old boy would escape conviction. But if the 17 year-old boy looked his age and the older man knew that he was only 17, then both parties to the act would be guilty. In this case, whether or not the younger man is guilty depends not on what he did but on how old the older person thought he was.
Lord Simon of Glaisdale: I am most grateful to the noble Earl for his explanation. What he says would apply equally to the counterpart in relation to heterosexual offences. However, I indicated that I shall not move the amendment. I merely express my gratitude to the noble Earl.
5.30 p.m.
Earl Ferrers: I deeply appreciate the noble and learned Lord saying that he will not move the amendment. I am rather less appreciative of the fact that he put it down in the first place because it took me hours to understand the exact permutations.
Perhaps I may refer to one other point made by the noble and learned Lord. He said that he was concerned about the policy on prosecution of 16 to 18 year-olds. Any prosecution requires, first, a reasonable prospect of conviction and, secondly, a public interest in prosecution. My right honourable friend the Solicitor-General has set out in another place how the Crown Prosecution Service approaches those matters. I can tell the noble and learned Lord that every case will be dealt with on its merits against those strict criteria.
Perhaps I may return to the central issue of the debate: that is, the age of consent for homosexuals. The Committee will be aware that the matter was debated at considerable length in another place. The subject matter did not form part of the original Bill, as the Bill is a criminal justice Bill; it is not a sexual offences Bill. As noble Lords will have observed with regard to some of the other amendments in this part of the Bill, once we start on this subject we get into some pretty murky waters. However, at the conclusion of the debate in another place, a substantial majority supported the amendments which now appear as Clause 139 of the Bill. But, of course, it is quite proper for noble Lords to discuss the matter and to reach their own conclusions. Noble Lords have every right to ask another place to reconsider its decision if that is what the Committee wishes to do. The noble Lord, Lord McIntosh, said of his party that there is a free vote. I can tell the Committee that the same applies on this side of the Chamber too.
Perhaps I may make a personal observation, it is only a personal observation. I share the unease which many noble Lords have about the decision of another place. I find it difficult to equate homosexual behaviour with heterosexual behaviour, and to accept the arguments which flow from that. In my view equality is not an issue. My noble friend Lord Skidelsky said that if the age does not drop to 16, the law is discriminatory. My personal view is: quite right too. I remember the late Archbishop Fisher once making the remarkable observation that there is no unreasonable argument that cannot be proved reasonable by reason. I would be concerned about the effect which the amendment for dropping the age to 16 would have on the attitude towards homosexuality.
In a debate in another place, my right honourable friend the Home Secretary said:
"It is also still unquestionably the case that most parents hope and expect their sons to follow a heterosexual lifestyle and hope that in due course they will build a family life of their own". —[Official Report, Commons, 21/2/94; col. 93.]
I believe that my right honourable friend was absolutely right. I was impressed by the robust speech of my noble friend Lady Young. Whatever one's views may be on the age of consent, I admired her robust defence of family life and the trenchant defence of the family as a whole. In my view homosexuality sets a young man

45
apart from the majority and he has to be given time to make up his mind. I personally think that even 18 is too soon. After all, the habits, characteristics and personalities of people are not just caused, as some claim, by heredity, and what is planted in people at birth, important though those are. People are also affected, and considerably affected, by teaching, opinion, example, experience and life in general. I agreed with the noble Lord, Lord Jakobovits. We are all vulnerable at any stage in our lives to many different pressures. One inevitably changes one's mind by one of three things: by what one sees, hears or reads. In so far as we all see, read and hear, we are all vulnerable. I would worry that a decision to reduce the age of consent either to 18 or to 16 will not be in the interests of the social fabric of the young and of our society. However, that is my personal view and it carries no more weight than that.
On the Government's behalf, I must tell the Committee that the Government's view is—I say it without an excess of enthusiasm—that any of the alternatives for the age of homosexual behaviour which have been canvassed (16, 18 or 21) can be justified in terms of the purpose and the extent of the criminal law. That is precisely why there was a free vote in another place. The Committee may also consider it worth bearing in mind that when the matter was considered in another place, the real argument—the noble Earl, Lord Russell, referred to it—lay not so much between 18 and 21 as between 18 and 16. If another place is to think again, which noble Lords are perfectly permitted to ask it to do, there is no certainty that the result would be as straightforward as some people might expect. That is a matter which the Committee might consider worthy of consideration. I put it no higher than that. The whole matter is entirely for individual conscience and individual opinion. That is why I would not wish to persuade the Committee on the Government's behalf in any particular direction.
However, the Committee might find it helpful if I were to advise noble Lords, as I did on the Sunday Trading Bill, on what to do when we vote. I remember endeavouring to do so on that occasion, with I thought a relative degree of clarity over a complicated issue, and my noble and learned friend Lord Hailsham rose to say that I had got it wrong.
Lord Hailsham of Saint Marylebone: I had got it wrong.
Earl Ferrers: It was a disconcerting moment. I hope that my noble and learned friend will refrain from jumping to the same erroneous conclusion this time. Those noble Lords who wish to vote for the age of 16 should vote for Amendment No. 160A and for Clause 139 stand part, as amended, if the amendment is made.
If the amendment is not made, voting for Clause 139 will be the equivalent of voting for the age of 18.
Those noble Lords who wish to vote for the age of 18 should vote against Amendment No. 160A and for Clause 139 to stand part, as it stands. If Clause 139 is changed to make the age 16, voting against the Question that Clause 139 stand part will mean voting for the age of 21.
46
Those noble Lords who wish a return to the age of 21 should vote against Amendment No. 160A and against the Question that Clause 139 stand part.
I hope that noble Lords have been able to retain that. I have done my best to explain.
Lord Mayhew: I may well have misunderstood the noble Earl, but does he propose to take the Question that Clause 139 stand part before discussing the amendments standing in my name?
Earl Ferrers: Certainly not. The noble Lord, Lord Mayhew, need not become unduly agitated. I simply sought to explain what noble Lords should do with regard to the ages of 16, 18 and 21 when we consider the Question that the clause stand part. Before that issue is considered, of course the noble Lord's amendments will be taken.
Lord McIntosh of Haringey: I start by echoing the Minister's words when he gave his advice as to what the effects of the different votes will be. He described the position entirely accurately and in response to a question from the noble Lord, Lord Mayhew, he confirmed that although we shall vote roughly in the same way as we did on the Sunday Trading Bill, the two votes will not succeed each other immediately. The amendments of the noble Lord, Lord Mayhew, and the noble Earl, Lord Clanwilliam, will have to be taken after the first vote.
It has been a rich and varied debate and I do not think it is any the worse for the fact that so many Members of the Committee have spoken out of instinctive feeling rather than rational argument. I confess that there is an element of instinctive feeling in my own position. I say genuinely that there must be a mixture of the way we feel about these matters, as well as how we reason our way towards a conclusion.
However, I have to say that in the course of the debate I have heard no effective or authoritative answer to the three major points which I made at. the beginning. They led me to the conclusion that the law should not discriminate against homosexual acts in the way that it does and in the way that it would if my amendment were defeated. I have not heard anyone say effectively that the criminalisation of or the retention of criminalisation of homosexual behaviour of those over 18 can be enforced. It is not enforced now and no one has, suggested a way in which it can be enforced in the future.
I have not heard anyone argue effectively against the views of the British Medical Association and the Royal College of Psychiatrists in particular that all the research evidence is that young men are not seduced into homosexual behaviour but their sexuality is largely determined before their first sexual act. Therefore, the arguments about seduction, particularly by older men —and that is certainly not the case—have not really been effectively countered.
Finally, I have not heard any effective answer to the opinion of all those who are concerned with health education, in particular, with HIV and AIDS, that the fight against AIDS and HIV infection is harmed by the criminalisation of homosexual activity for those aged 16

47
and over. Those who are in need of advice and comfort are unable to come to the agencies and the adults who would be able to give counsel and advice are deterred from doing so because of the fear of being involved in a criminal act.
In all this there must, of course, be an element of what we feel. I have sensed a great deal of disapproval and distaste for homosexual behaviour, whether it is in the form of Gay Pride marches or in the form of activities between consenting adults in private. I plead with the Committee not to allow that disapproval or distaste, which Members may well feel, to affect their views on what the law should say about the actions of adults in private.
The most reverend Primate the Archbishop of York made, as always, a most thoughtful speech. He described heterosexual activity as "normal" and I think that for most of us it is. But that does not mean that homosexual activity is abnormal, it is simply different. It certainly does not mean that it should be condemned in the way that some Members of the Committee—not the most reverend Primate—appear to wish to condemn it.
We have had a debate on the issue of whether the ages should be 16, 18 or 21. I appreciate the views of those who wish to give primacy to the views on a free vote expressed in another place. But having had the debate and having taken into account all the speeches that have been made, I believe that Members of the Committee would wish to vote on all the options. I now propose to ask the opinion of the Committee on Amendment No. 160A.
5.45 p.m.
On Question, Whether the said amendment (No. 160A) shall be agreed to?
Their Lordships divided: Contents, 71; Not-Contents, 245.

Division No.1

CONTENTS

Addington, L.

Harris of Greenwich, L.

Annan, L.

Hilton of Eggardon, B.

Ashley of Stoke, L.

Hollis of Heigham, B.

Avebury, L.

Holme of Cheltenham, L.

Barnett, L.

Hughes, L.

Beaumont of Whitley, L.

Irvine of Lairg, L.

Bonham-Carter, L.

Jay of Paddington, B.

Boston of Faversham, L.

Jeger, B.

Byron, L.

Jenkins of Putney, L.

Carmichael of Kelvingrove, L.

Kennet, L.

Castle of Blackburn, B.

Kilmarnock, L.

Clinton-Davis, L.

Lane of Horsell, L.

Craigavon, V.

Leigh, L.

Darcy (de Knayth), B.

Listowel, E.

David, B.

Llewelyn-Davies of Hastoe, B.

Davies, L.

Lockwood, B.

Desai, L.

Lovell-Davis, L.

Donaldson of Kingsbridge, L.

McIntosh of Haringey, L.

Eatwell, L.

[Teller]

Elis-Thomas, L.

Mallalieu, B.

Ennals, L.

Marsh, L.

Ewing of Kirkford, L.

Molloy, L.

Falkland, V.

Monkswell, L.

Foot, L.

Montagu of Beaulieu, L.

Gilmour of Craigmillar, L.

Morris of Castle Morris, L.

Gould of Potternewton, B.

Morris, L.

Graham of Edmonton, L.

Moyne, L.

Gregson, L.

Peston, L.

48

Ponsonby of Shulbrede, L.

Skidelsky, L. [Teller.]

Quinton, L.

Slynn of Hadley, L.

Rea, L.

St. John of Fawsley, L.

Renfrew of Kaimsthorn, L.

Tordoff, L.

Richard, L.

Turner of Camden, B.

Rodgers of Quarry Bank, L.

Williams of Elvel, L.

Russell, E.

Williams of Mostyn, L.

Seear, B.

Young of Dartington, L.

NOT-CONTENTS

Aberdare, L.

Dudley, E.

Ackner, L.

Eden of Winton, L.

Addison, V.

Ellenborough, L.

Aldington, L.

Elliott of Morpeth, L.

Alexander of Tunis, E.

Elton, L.

Alexander of Weedon, L.

Ezra, L.

Allenby of Megiddo, V.

Faithfull, B.

Annaly, L.

Fanshawe of Richmond, L.

Archer of Weston-Super-Mare, L.

Ferrers, E.

Arran, E.

Finsberg, L.

Ashbourne, L.

Fitt, L.

Astor of Hever, L.

Flather, B.

Attlee, E.

Foley, L.

Balfour, E.

Forbes, L.

Barber of Tewkesbury, L.

Fraser of Carmyllie, L.

Belhaven and Stenton, L.

Fraser of Kilmorack, L.

Beloff, L.

Gibson, L.

Blatch, B.

Gisborough, L.

Blyth, L.

Gladwyn, L.

Boardman, L.

Glenarthur, L.

Boyd-Carpenter, L.

Goschen, V.

Brabazon of Tara, L.

Grantchester, L.

Bramall, L.

Gray of Contin, L.

Brentford, V.

Gray, L.

Bridgeman, V.

Greenhill of Harrow, L.

Brightman, L.

Greenway, L.

Brigstocke, B.

Grey, E.

Broadbridge, L.

Griffiths of Fforestfach, L.

Brookeborough, V.

Hailsham of Saint Marylebone, L.

Brooks of Tremorfa, L.

Hamilton of Dalzell, L.

Brougham and Vaux, L.

Hanworth, V.

Burnham, L.

Harding of Petherton, L.

Butterworth, L.

Hardinge of Penshurst, L.

Cadman, L.

Harlech, L.

Caldecote, V.

Harmar-Nicholls, L.

Campbell of Alloway, L.

Harmsworth, L.

Campbell of Croy, L.

Harrowby, E.

Carnock, L.

Hayhoe, L.

Chalker of Wallasey, B.

Hayter, L.

Charteris of Amisfield, L.

Henley, L.

Chelmsford, V.

Hesketh, L.

Chesham, L.

Holderness, L.

Clanwilliam, E.

HolmPatrick, L.

Clark of Kempston, L.

Hood, V.

Clifford of Chudleigh, L.

Hooper, B.

Clitheroe, L.

Hothfield, L.

Cockfield, L.

Howe of Aberavon, L.

Coleridge, L.

Howe, E.

Colnbrook, L.

Howell, L.

Courtown, E.

Huntingdon, E.

Craig of Radley, L.

Hylton-Foster, B.

Craigmyle, L.

Inchyra, L.

Cranborne, V.

Ironside, L.

Crawshaw, L.

Jakobovits, L.

Cross, V.

Jeffreys, L.

Cullen of Ashbourne, L.

Johnston of Rockport, L.

Cumberlege, B.

Kimball, L.

Dainton, L.

Kinloss, Ly.

Davidson, V.

Kinnoull, E.

De Freyne, L.

Lauderdale, E.

Dean of Beswick, L.

Lindsey and Abingdon, E.

Dean of Harptree, L.

Liverpool, E.

Derwent, L.

Long, V.

Diamond, L.

Longford, E.

Digby, L.

Lothian, M.

Dixon-Smith, L.

Lucas of Chilworth, L.

Donegall, M.

Lyell, L.

Donoughue, L.

Mackay of Ardbrecknish, L

Dormand of Easington, L.

Mackay of Clashfern, L. [Lord

Downshire, M.

Chancellor]

49

Macleod of Borve, B.

Saint Oswald, L.

Malmesbury, E.

Salisbury, M.

Mar, C.

Saltoun of Abernethy, Ly.

Marlesford, L.

Savile, L.

Masham of Ilton, B.

Seccombe, B.

Mason of Barnsley, L.

Selborne, E.

Massereene and Ferrard, V.

Shannon, E.

Mayhew, L.

Shaughnessy, L.

McAlpine of West Green, L.

Shepherd, L.

Melville, V.

Sherfield, L.

Merrivale, L.

Simon of Glaisdale, L.

Mersey, V.

Slim, V.

Milverton, L.

Sondes, E.

Monckton of Brenchley, V.

St. Davids, V.

Monson, L.

St. John of Bletso, L.

Moran, L.

Stallard, L.

Mottistone, L.

Stanley of Alderley, L.

Mountevans, L.

Stedman, B.

Mountgarret, V.

Stevens of Ludgate, L.

Mowbray and Stourton, L.

Stewartby, L.

Mulley, L.

Stoddart of Swindon, L.

Munster, E.

Strange, B.

Mutton of Lindisfarne, L.

Strathclyde, L.

Nelson, E.

Strathcona and Mount Royal, L.

Newall, L.

Strathmore and Kinghorne, E.

Nicol, B.

Sudeley, L.

Nolan, L.

Suffolk and Berkshire, E.

Norfolk, D.

Swansea, L.

Northbourne, L.

Swinfen, L.

Northbrook, L.

Tenby, V.

Northesk, E.

Teviot, L.

O'Cathain, B.

Thomas of Gwydir, L.

Oppenheim-Barnes, B.

Torphichen, L.

Orr-Ewing, L. [Teller.]

Trumpington, B.

Oxfuird, V.

Tugendhat, L.

Palmer, L.

Ullswater, V.

Park of Monmouth, B.

Vaux of Harrowden, L.

Pearson of Rannoch, L.

Vivian, L.

Peel, E.

Wakeham, L. [Lord Privy Seal.]

Pender, L.

Waverley, V.

Perry of Southwark, B.

Weatherill, L.

Perth, E.

Westbury, L.

Peyton of Yeovil, L.

Whaddon, L.

Pitt of Hampstead, L.

Wharton, B.

Plummer of St. Marylebone, L.

Wigoder, L.

Porter of Luddenham, L.

Wilberforce, L.

Rankeillour, L.

Windlesham, L.

Renton, L.

Wise, L.

Renwick, L.

Wolfson, L.

Robertson of Oakridge, L.

Wyatt of Weeford, L.

Rodger of Earlsferry, L.

Wynford, L.

Romney, E.

York, Abp.

Sainsbury of Preston Candover, L.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

5.55 p.m.
Lord Mayhew Lord Mayhew moved Amendment No. 161:
Page 113, line 13, at end insert:
("() In subsection (1) of that section, after the word "act" there shall be inserted the words "(other than buggery)".").
The noble Lord said: In moving Amendment No. 161, I shall speak to Amendments Nos. 161ZB, 162, 163 and 164ZA. Clause 139 lowers the age of consent for all homosexual practices. The effect of these amendments is to lower the age for all homosexual practices except buggery.
I was a little confused by the statement of the noble Lord, Lord McIntosh, that the medical profession agreed that there was no health risk in homosexual practices. I think that the noble Lord fails to distinguish one homosexual practice from another. There is in fact a complete consensus among medical professionals and among gay organisations that even with professional
50
advice and the use of condoms, buggery still presents a health risk. In its current literature, the Terrence Higgins Trust, which is a leading pro-gay organisation, states:
"The main risk of transmitting HIV is through anal intercourse. You can really cut down the risk by using condoms".
It does not say "eliminate" the risk, but "cut down" the risk. The trust then lays down a number of provisos. It lists seven precautions that still need to be taken relating to the nature of the condoms and their method of use. At the same time, the trust recommends nine homosexual practices other than anal intercourse that it declares to be completely safe. To the best of my knowledge, those risk assessments by that expert body are not challenged by anyone —certainly not by any medical authority or gay organisation. It follows, I hold, that everything needs to be done to discourage the practice of anal intercourse.
The Wolfenden Committee, whose recommendations I warmly supported at the time in the other place, considered at length whether the law should discriminate, as these amendments do, between buggery and other homosexual practices. The committee asked itself, for example, whether this particular practice was unnatural, or more unnatural than other homosexual practices. It asked itself—I think more pertinently— whether this particular practice did not play a disproportionate part in increasing prejudice against the gay community. However, as we all know, the Wolfenden Committee did not agree that any discrimination should be made between anal intercourse and any other homosexual practices. But of course, like everybody else, including myself, the Committee knew nothing about AIDS. Had it done so, and had it known that this particular practice could condemn a person to a fatal infectious disease, it must surely have come to a different conclusion.
Sadly, we have to register, though it is hard to believe, that the legalisation of buggery which followed its recommendation made no contribution whatever to the rapid rise in HIV and AIDS which followed it. It is common sense to assume that legalising an action and making it permissible also makes it more acceptable and more readily practised. That is why we sensibly declined to repeal some laws which are quite unenforceable. The law against drug taking in private is not only in practice unenforceable but in fact encourages criminal activities. Yet there is reluctance to repeal that law because we know that it would make drug taking more readily acceptable and practised.
I particularly appreciated the words of the most reverend Primate on that matter. He pointed out that the law is concerned not only with what the police will do and with the fear of detection and punishment. He said that the law:
"defines a set of expectations … [and] changing the law changes the expectations".
The noble Lord, Lord Jakobovits, said the same. He said that the law was not just about detection and punishment but that the law set standards of value. I am sure that that is an important point.
Therefore, so far as concerns the particular law that we are discussing, even though it may be unenforceable, it acts as an additional warning and discouragement. It

51
is a benchmark: thus far and no further. It is a benchmark for young gay men and also for their teachers, for parents and for ourselves as legislators.
If it is unamended, Clause 139 will remove that benchmark. It lumps together all homosexual practices. It legitimises unsafe sex. I cannot believe that that is the message that this Chamber means to give: legitimise unsafe sex for 18 to 21 year-olds.
Anal intercourse is by no means the most common homosexual practice. Our best studies suggest that fewer than half of gay men practise it regularly and 8 per cent. never practise it at all. Since they can see that it is dangerous, gay organisations themselves ought openly and frankly to campaign against it. However, as it is, we should resist their campaign to legalise it. I invite the Committee to do that by supporting these amendments.
6 p.m.
Lord Annan: When I saw this amendment I was reminded of the immortal remark of Ernest Bevin:
"When you open that Pandora box, you will find it full of Trojan horses".
This is a very difficult amendment to support. It seems to me that it would set an extraordinary precedent. If acts which lead to disease and death are made criminal, then the first and most obvious result is to make smoking a criminal offence. Far more people die from coronary thrombosis and lung cancer which has been brought on by smoking than from AIDS.
The proposers of the amendment say that their motive is to protect the community from AIDS. But is it not a fact that the HIV virus can be transmitted by what is called an exchange of bodily fluids? If buggery is to be made criminal on medical grounds, then so also must fellatio and cunnilingus. And why stop there? Should not kissing be made a criminal offence?
But the main reason for rejecting the amendment is that it is unenforceable. If anyone of whatever age commits buggery in public, he is guilty of an offence. So the amendment must be aimed at those under 21 who commit the act in private. How is that to be enforced? The only people who can enforce it are the police. Have the proposers of the amendment considered to what that could lead?
Let us suppose that the police know that two young men share a flat and that they are supposed to be homosexual. The police would have the right to force entry to the flat on the suspicion that the two men were engaged in anal intercourse. Those two men could then be forced to get up in the middle of the night and dress and be taken to the police station. There they could be forced to submit to an examination by a police surgeon to see whether either or both of them had semen or smegma in the rectum. No one should suppose that that is beyond the bounds of possibility.
Some years ago a young and most promising Member of another place visited a club. In that club were a man and a woman who were police officers out of uniform. The Member of the other place was accused by the male police officer of making an indecent proposal and gesture to him and the woman police officer corroborated the offence. I am glad to say that,
52
having heard the evidence, the jury threw out the case. But, it may be asked: what were those two police officers doing on private premises? The political career of the person concerned has been blighted to this day.
I do not want to suggest that that is typical of police behaviour. But there will always be cases of an officer who is overzealous or violently prejudiced and who oversteps the bounds of sensible policing. If we make this act a crime, it will positively encourage some inexperienced or obsessed officer to take such a step.
I do not want to invade the territory of the noble Baroness, Lady Mallalieu, except to say that the spirit of her amendment pleases me mightily. She speaks with vast experience of what actually goes on in court and of the proceedings before a case is heard.
What goes on in the bedroom between consenting adults should be a private matter into which the law does not peer. When urged by the Puritans to make adherence to the Act of Uniformity stiffer, Queen Elizabeth I said that she did not want to make windows into men's souls. We in our turn should not pry into the private lives of those who have reached the age of majority.
I recollect that, at the time of the late Lord Arran's Bill, Lord Dilhorne taunted the Archbishop of Canterbury by asking him whether, since he had supported Lord Arran's Bill and was in favour of legalising homosexual conduct between consulting adults, he approved of the act of buggery. The Archbishop of Canterbury did not deign to reply. But Lady Wootton of Abinger did. She turned to Lord Dilhorne and said:
"I ask myself: what are the opponents of this Bill afraid of? They cannot be afraid that these disgusting practices will be thrown upon their attention, because these acts are legalised only if they are performed in private … I can only suppose that the opponents of this Bill will be afraid that their imagination will be tormented by visions of what will be going on elsewhere. Surely, if that is so, that is their own private misfortune, and no reason for imposing their personal standards of taste and morality on the minority of their fellow citizens who can find sexual satisfaction only in relations with their own sex".—[Official Report, 13/7/67; cols. 1316-1317.]
Earl Russell: I intended to ask my noble friend Lord Mayhew how he supposed his amendment should be enforced. He stole my thunder and I am glad to let it go. He said that if the amendment became law it could not be enforced. He is telling us therefore that he is proposing to put on the statute book a law which could be broken with impunity. I call that bringing the law into disrepute.
Lord McIntosh of Haringey: The amendment is much worse than that. It is not just that the law cannot be enforced; it is that the enactment of a law such as that proposed by the amendment would deny young people who need help—people aged 18 to 21—the advice and counselling which they could obtain from organisations available to give it. Unenforceability is the least of the defects of the amendment.
6.15 p.m.
The Earl of Clanwilliam: As no one else is rising to speak perhaps I can take my turn to support the noble Lord, Lord Mayhew, in his amendment. I shall come to the question of unenforceability in a moment. It is

53
obvious that at the moment there is no enforceable law. I support the amendment in the manner of reform of the opinion of the other place. It is not a measure of rejection of what the Members of the other place proposed; it is a measure to protect our young from disease. That is the only way in which the amendment should be judged.
The noble Lord, Lord McIntosh of Haringey, pointed out that the subject of homosexuality had been known through the ages. Indeed it has. Different sexuality has been known throughout civilisations but it is a fact that rampant homosexuality was the forerunner of the decline of all civilisations which endorsed it.
My object in speaking is simply to make illegal the act of anal penetration and to allow both sexes to use their sexuality freely in any other way within the terms of Clause 139. The time was, even when the 1967 Act was passed—10 years after the Wolfenden Report—and the gay sub-culture began to develop in the 1970s, when the problem of AIDS was unknown. It did not arise until 1982; so the problem is only 12 years old. It was at that time of no major importance to the health of the nation and, because AIDS was not a danger, the age of consent could have been reduced.
That is no longer so. It is now established beyond doubt—as the noble Lord, Lord Renton, stated in an earlier debate —that 75 per cent, of deaths from AIDS result from homosexual activities. Indeed, the Eurostat estimate in respect of deaths by HIV infection is that 54 per cent. of Europeans were homosexual while the figure for the UK was 81 per cent. That figure comes from the SIGMA report. I should mention that the SIGMA organisation is funded by the Medical Research Council as an independent statutory body. It published a report in 1992 which examined in great detail and with great sympathy the. problem of homosexuals and how they could be helped and consulted. After quoting the report I received an extremely angry letter from the director who asked me, among other things, to point out that SIGMA objects most strongly to its money being used in this, "despicable, demeaning and utterly deplorable" way. Members of SIGMA are scientists and doctors. They are there to propose ideas; it is Parliament which decides the law. I readily accede to their request to be mentioned.
An awful lot of codswallop has been talked about discrimination with misleading theorising about young men's rights compared to the rights of young women. It is a modern fallacy of the politically correct world that men and boys or women and girls are comparable. Momentary reflection will explode that ridiculous theory. At Second Reading I pointed to the disparity in that a girl of 12 or legally 16 can conceive and bear a child and nurse it; but a father of the same age is incapable of performing the duties of parenthood. On the other hand, if we are simply discussing equal rights to promiscuity, we can hardly suggest that we are setting any sort of example or performing our duty as a reforming House.
Boys and young men will be experimenting and no doubt practising their sexuality in their formative years. It is then that they need guidance and advice from parents, teachers, and indeed the Church. I am glad that
54
the most reverend Primate the Archbishop of York pointed out that need. It is especially important in today's open society where the flood of information and the welter of semi-professional theories from all sides compound confusion in the minds of young men.
I commend the amendment to the Committee. It will provide parents and children alike with a benchmark which simply says, "Whatever you do, don't get involved in buggery. It is dangerous, unhealthy and illegal". That is a simple, comprehensible and urgent instruction which is easily expressed and needs only the sanction of law to support it. It may be that the law is unenforceable, as my noble friend Lord Skidelsky and the noble Lord, Lord Annan, stated. But I suggest that we have an opportunity here where the family can make the law. The family can make the statement and pre-empt the law.
This simple, comprehensive and urgent instruction has the additional advantage that it will save those children from the scourge of AIDS. It is true that there may be a suggestion of the "nanny state" entering the argument. However, the 1992 SIGMA report makes illuminating reading. It is not often that I quote the Medical Research Council. When I do I am usually wearing my alternative medicine hat —we do not appear to be at one in our views on those matters either. However, its statements are relevant to the cause. The report states that the average age for first experience of anal intercourse is 20.9 years. The age of consent is already 21 years and all we are proposing is that that should be true in law. It is the promiscuous predatory male who is the greatest danger to our young. Again I quote the SIGMA report on the danger of AIDS-related infections in relation to anal intercourse It states:
"All the men who tested antibody positive had engaged in anal intercourse previously and no one who had not done so tested positive".
That is clear proof. Incidentally, the statement perhaps belies what I consider to be the most potent argument against the amendment; that is, that the disease can be spread equally easily through oral sex. The noble Lord, Lord Annan, asked about all those other methods whereby HIV can be spread via body fluids. That is the answer to his question. It is a clear statement from the SIGMA report that no other form of sexual intercourse is responsible for HIV infection. I find the SIGMA report conclusive, contrary to the suggestion of the noble Lord, Lord Annan, and I look for the agreement of the Committee.
The amendment frees both sexes from discrimination in that they will be able to enjoy—or abuse, according to one's view—their sexuality in any manner except buggery, which has been shown by many Members of the Committee, as well as SIGMA, to be a danger to the health of the nation as well as to our youth.
As regards freedom, this amendment will in some sense at least increase that precious sense of freedom in one's daily life. It may be that the press will find greater difficulty, as no doubt the police will, in finding people in their bedrooms, as the noble Lord suggested. Our forebears in their wisdom were right. Clause 63 of the 1861 Act states that,

55
"to prove carnal Knowledge, it shall not be necessary to prove the actual Emission of Seed … but… shall be deemed complete upon Proof of Penetration only".
The original idea was to prevent anal penetration and that is the object of this amendment. Greater freedom will ensue if only because the proof that is required is extremely difficult to obtain, as has been said. And if that is an argument against this amendment, then it is equally difficult to prove an offence under the present circumstances. Certainly unenforceable rules make bad law but there will be less law to enforce than with the existing law and perhaps an opportunity for greater self-expression, if I may put it like that.
Finally, I have not referred to the Church's position but the right reverend Prelate has clearly made that clear. Perhaps he will be able to support the amendment.
I cannot end without some personal statement. I have many friends with a different sexual orientation. Among them are men of great taste and talent who have great achievements—and, as has already been said, many such people served with great valour in the last war—of which they are justly proud and who lead impeccable private lives. I hope that if they read this speech they will continue to regard me as a friend, for as much as I have valued it in the past I shall continue to value their friendship in the future.
The Earl of Dudley: If this amendment were incorporated into the law the only beneficiaries would be those who could command the price of silence. I am sure that no noble Lord in his right mind would wish for that.
Lord Mottistone: I greatly admire my noble friend Lord Clanwilliam and the noble Lord, Lord Mayhew, for putting forward the amendment because it seems to me that not enough noble Lords realise the great threat to health of AIDS. That is important and very relevant to what we are talking about. I am not saying that this is necessarily the right place to have this discussion but there is an important point to be made.
I was talking to a young man from the United States who is dealing with the problem of trying to control AIDS in the United States. He said that a thousand people a month in New York alone are getting AIDS and in due course are dying. It is too dangerous to allow this ailment to spread wider in this country. One of the reasons why we have to try to restrain these unnatural practices—and they are unnatural practices—is that we do not want our country to have a whole lot of people dying from AIDS at the rate they die in the United States. Whatever noble Lords may think about this amendment, they should go away from this debate saying to themselves, "AIDS must be stopped".
Lord Eatwell: I wish to oppose this amendment and to second the words with which the noble Lord, Lord Mottistone, finished his contribution. I am the chairman of Crusade, which is a charity devoted both to the education and care of people suffering from HIV and AIDS. One of the things we should notice in considering this amendment is the fact that everyone who is involved in looking after people with HIV and AIDS is opposed to the amendment. The people who are
56
involved in caring for sufferers oppose the amendment. We have been told by the proposers that the amendment is designed to protect people against the spread of HIV infection. Yet we are also told by the proposers that they recognise that the provision would be unenforceable. How is something which is unenforceable supposed to protect anyone?
Secondly, we have been told that outlawing anal intercourse would be a way of directly fighting AIDS, as if that were the only way AIDS could be transmitted. If that is so, how do the proposers of the amendment account for the fact that in this country AIDS infection is growing the fastest among women and children?
The Earl of Clanwilliam: I can tell the noble Lord exactly how it happens among women. A bisexual man becomes infected through a homosexual activity. He then has intercourse with a woman. He gives her AIDS and she bears a child who is born with AIDS.
Lord Eatwell: I am glad that the noble Earl has confirmed that he does not believe that anal intercourse is the sole means of transmitting AIDS.
Thirdly, and most importantly, all the organisations involved in fighting AIDS are opposed to the amendment because it would damage the educational work which is absolutely central to the fight against AIDS. The Government are to be congratulated on the educational campaign which they ran in the mid-1980s to attack AIDS. As a result, undoubtedly, of that successful campaign the rates of infection in this country are dramatically less than the rates of infection in France, Spain and Italy, where the same kind of effort was not put into education. It is vital that we do not create a situation in which educational activity could be seen as aiding and abetting a crime. This amendment would, I can assure the Committee as someone actively involved in the fight against AIDS, do great damage to that fight.
Earl Attlee: The noble Lord, Lord Mottistone, referred to the situation in the United States. Can he tell the Committee what is the law in the United States?
Lord Mottistone: No, because I did not ask my friend what the law is.
Earl Ferrers: The noble Lord's amendment offers a significantly different approach in this difficult area and I have no doubt that many noble Lords are in great sympathy with a great deal of what is proposed. However, these amendments are not quite as simple as they appear. The Government's principal concern is that there does not appear to be any good enough reason to differentiate between buggery and other homosexual acts so far as concerns the age of consent.
We are all horrified and alarmed by the spread of AIDS and we should do everything we can to prevent that. But in the Government's view the age of consent for homosexuals is difficult to justify on AIDS grounds. We do not think that criminalising consensual sexual activity between adults can be defended simply because it may reduce the risks which people choose to run when they engage in that kind of activity. There would be little dispute about the fact that buggery carries a

57
considerably higher risk of infection than do some other forms of sexual activity, but that fact alone is not a good enough reason to warrant what is inescapably an intrusion into a person's privacy and freedom. If it were, that would be an argument for criminalising buggery at any age. Much as though many of your Lordships might consider that desirable, I do not think it is a practical proposition.
We do not forbid people from travelling to parts of the world where AIDS is common throughout the heterosexual population and where they can contract the disease by heterosexual activity with some prostitute or other infected person and then, of course, risk infecting someone else back in this country. The fact is that people take risks with their own health and with that of others. Undesirable though that may be, it is a simple fact of life with which we have to deal in a practical way. It would be hard to see what a distinction between buggery and other kinds of sexual activity would achieve. A number of people have said that it would be a difficult law to enforce and that that would be a sound reason for not incorporating it into the law of the land.
If we are interested in deterring young men from homosexuality, we cannot seriously contemplate a three-year period when a young man who can legally engage in homosexual sex of a variety of different kinds, will nevertheless be expected to stop short of buggery, but that in three years' time it will be all right. I do not believe that is a realistic proposition. The law on homosexuality infringes the privacy of the individual. There is nothing inherently wrong in that; but we allow the law to impose this restriction because of society's disapproval of homosexuality in general and all which that implies for family life and the development of young men. The age at which young men should be free to pursue whatever homosexual preference they have should be a single age regardless of what the act in question actually is.
The age of consent for homosexual acts has been a matter for a free vote both in another place and in your Lordships' Chamber today. I am bound to tell the Committee that the Government consider that these amendments are flawed in principle. While we would not seek to impose our views on your Lordships, the Government as a whole would find it difficult to accept them.
6.30 p.m.
Lord Mayhew: I am grateful to those who have contributed to the debate. I correct my noble friend Lord Russell and the noble Lord, Lord Annan, who accused us of putting a provision on the statute book criminalising something. The purpose of this amend-ment and its effect would not be to increase the intervention of the law, and it would not lead to criminalising anything. It is to draw a line at not decriminalising buggery. That is the point.
I am very surprised by the reaction of the Committee. I am very surprised that it should be thought right to make buggery more acceptable. That is what Clause 139 does. To that extent, it makes buggery more readily practised. I can say without exaggeration that in the battle against AIDS this clause is on the wrong side. As
58
I say, I am surprised at the reaction of the Chamber. I correct my noble friend and the noble Lord, Lord Annan. We are not criminalising, but refusing to decriminalise buggery. At the same time: we are decriminalising safe sex. That is the effect of the amendment. It is to decriminalise safe sex but to keep the criminalisation of unsafe sex.
I agree that this is a new idea. I am hopeful that some day that view will prevail. I am disappointed at the response of the Government. I, and I believe a number of noble Lords will continue to argue that this clause needs amending. But for the moment, and without prejudicing our rights on any future occasion, I do not propose to call a Division.
Amendment, by leave, withdrawn.
[Amendments Nos. 161ZA, 161ZB, 161A, 162, 162A, 163B, 163 and 163A not moved.]
[Amendment No. 164 had been withdrawn from the Marshalled List.]
[Amendments Nos. 164ZA and 164A not moved.]
On Question, Whether Clause 139 shall stand part of the Bill?
Earl Ferrers: I do not want to discuss the merits of this case because we have done so already. However, it might be helpful to the Committee if I offer some brief guidance. The fact is that as Amendment No. 160A, which was going to drop the age of consent from 18 to 16, was not agreed to, those Peers who wish the age to remain at 18 should vote that Clause 139 stands part of the Bill, and that those who wish it to go back to 21 as it was before, should vote that Clause 139 does not stand part of the Bill.
6.36 p.m.
On Question, Whether Clause 139 shall stand part of the Bill?
Their Lordships divided: Contents, 176; Not-Contents, 113.

Division No.2

CONTENTS

Ackner, L.

Clark of Kempston, L.

Addington, L.

Clinton-Davis, L

Addison, V.

Colwyn, L.

Alexander of Tunis, E.

Cranborne, V.

Alexander of Weedon, L.

Cumberlege, B.

Annan, L.

Darcy (de Knayth), B

Archer of Weston-Super-Mare, L.

David, B.

Arran, E,

Davies, L.

Ashley of Stoke, L.

Demon of Wakefield, B.

Astor of Hever, L.

Desai, L.

Astor, V.

Digby, L.

Attlee, E.

Dixon-Smith, L.

Balfour, E.

Donoughue, L.

Barnett, L.

Dormand of Easington, L.

Beaumont of Whitley, L.

Downshire, M.

Blackstone, B.

Dudley, E.

Blyth, L.

Eatwell, L.

Bonham-Carter, L.

Eden of Winton, L.

Bridgeman, V.

Elis-Thomas, L.

Brigstocke, B.

Ennals, L.

Broadbridge, L.

Ewing of Kirkford, L.

Byron, L.

Ezra, L.

Cadman, L.

Faithfull, B.

Carlisle of Bucklow, L.

Falkland, V. [Teller]

Carmichael of Kelvingrove, L.

Finsberg, L.

Carter, L.

Flather, B.

Castle of Blackburn, B.

Fraser of Carmyllie, L.

Chesham, L.

Goschen, V.

59

Gould of Potternewton, B.

Montagu of Beaulieu, L.

Graham of Edmonton, L.

Morris of Castle Morris, L.

Gray of Contin, L.

Moyne, L.

Greene of Harrow Weald, L.

Nelson, E.

Gregson, L.

Nicol, B.

Grey, E.

Orkney, E.

Hailsham of Saint Marylebone, L.

Palmer, L.

Harding of Petherton, L.

Park of Monmouth, B.

Hardinge, V.

Peel, E.

Harlech, L.

Pender, L.

Harmar-Nicholls, L.

Perry of Southwark, B.

Harris of Greenwich, L.

Peston, L.

Harrowby, B.

Ponsonby of Shulbrede, L.

Haskel, L.

Portsmouth, Bp.

Hayhoe, L.

Rea, L.

Henley, L.

Redesdale, L.

Hesketh, L.

Rees, L.

Hilton of Eggardon, B.

Renfrew of Kaimsthorn, L.

Holderness, L.

Renwick, L.

Hollick, L.

Richard, L.

Hollis of Heigham, B.

Rodger of Earlsferry, L.

Holme of Cheltenham, L.

Rodgers of Quarry Bank, L.

HolmPatrick, L.

Rodney, L.

Hood, V.

Russell, E.

Hothfield, L.

Seear, B.

Howe, E.

Selborne, E.

Hughes, L.

Selsdon, L.

Huntingdon, E.

Serota, B.

Inchyra, L.

Shepherd, L.

Jay of Paddington, B. [Teller.]

Sherfield, L.

Jeger, B.

Simon of Glaisdale, L.

Jenkins of Putney, L.

Skidelsky, L.

Kilmarnock, L.

Slynn of Hadley, L.

Lane of Horsell, L.

St. Davids, V.

Leigh, L.

St. John of Fawsley, L.

Lindsey and Abingdon, E.

Stedman, B.

Listowel, E.

Stoddart of Swindon, L.

Llewelyn-Davies of Hastoe, B.

Strathclyde, L.

Lockwood, B.

Strathmore and Kinghorne, E.

Long, V.

Swansea, L.

Lovell-Davis, L.

Teviot, L.

Lucas of Chilworth, L.

Thomas of Gwydir, L.

Lucas, L.

Thurlow, L.

Lyell, L.

Tordoff, L.

Mackay of Clashfern, L.[Lord

Tugendhat, L.

Chancellor.]

Turner of Camden, B.

Mackie of Benshie, L.

Ullswater, V.

Macleod of Borve, B.

Wade of Chorlton, L.

Mallalieu, B.

Wakeham, L. [Lord Privy Seal.]

Mancroft, L.

Weatherill, L.

Marsh, L.

Wharton, B.

Masham of Ilton, B.

White, B.

Mason of Barnsley, L.

Wigoder, L.

McIntosh of Haringey, L.

Wilberforce, L.

Melville, V.

Williams of Elvel, L.

Merlyn-Rees, L.

Williams of Mostyn, L.

Merrivale, L.

Windlesham, L.

Molloy, L.

Wynford, L.

Monckton of Brenchley, V.

York, Abp.

Monkswell, L.

Young of Dartington, L.

Monson, L.

NOT-CONTENTS

Aberdare, L.

Caldecote, V.

Aldington, L.

Carnock, L.

Allenby of Megiddo, V.

Clifford of Chudleigh, L.

Annaly, L.

Clitheroe, L.

Ashbourne, L.

Cockfield, L.

Barber of Tewkesbury, L.

Coleridge, L.

Belhaven and Stenton, L.

Courtown, E.

Beloff, L.

Craig of Radley, L.

Blatch, B.

Craigmyle, L.

Boardman, L.

Crawshaw, L.

Boyd-Carpenter, L.

Cross, V.

Brabazon of Tara, L.

Dean of Harptree, L.

Brentford, V.

Diamond, L.

Brooks of Tremorfa, L.

Donegall, M.

Brougham and Vaux, L.

Eccles of Moulton, B.

Burnham, L.

Ellenborough, L.

Butterworth, L.

Fanshawe of Richmond, L.

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Ferrers, E.

Nolan, L.

Forbes, L.

Norfolk, D.

Gilmour of Craigmillar, L.

Northesk, E.

Gisborough, L.

O'Cathain, B.

Gladwyn, L.

Oppenheim-Barnes, B.

Glenarthur, L.

Orr-Ewing, L. [Teller.]

Grantchester, L.

Pearson of Rannoch, L.

Gray, L.

Perth, E.

Greenway, L.

Peyton of Yeovil, L.

Griffiths of Fforestfach, L.

Plummer of St. Marylebone, L.

Hamilton of Dalzell, L.

Reading, M.

Hardinge of Penshurst, L.

Renton, L.

Hylton-Foster, B.

Robertson of Oakridge, L.

Ironside, L.

Romney, E.

Jakobovits, L.

Saint Oswald, L.

Jeffreys, L.

Salisbury, M.

Johnston of Rockport, L.

Saltoun of Abernethy, Ly.

Kimball, L.

Savile, L.

Kinloss, Ly.

Seccombe, B.

Lauderdale, E.

Shannon, E.

Liverpool, E.

Sondes, E.

Longford, E.

Stanley of Alderley, L.

Lothian, M.

Stevens of Ludgate, L.

Mackay of Ardbrecknish, L.

Stewartby, L.

Malmesbury, E.

Strange, B.

Marlesford, L.

Swinfen, L.

Massereene and Ferrard, V.

Tebbit, L.

Mayhew, L.

Tenby, V.

McAlpine of West Green, L.

Torphichen, L.

Mersey, V.

Trumpington, B.

Milverton, L.

Vaux of Harrowden, L.

Mishcon, L.

Vivian, L.

Moran, L.

Waverley, V.

Mottistone, L.

Westbury, L.

Mountevans, L.

Whaddon, L.

Mountgarret, V.

Wise, L.

Mowbray and Stourton, L.

Wolfson, L.

Munster, E.

Wyatt of Weeford, L.

Murton of Lindisfarne, L.

Young, B. [Teller]

Newall, L.

Clause 139 agreed to.
6.48 p.m.
Lord Ponsonby Lord Ponsonby of Shulbrede moved Amendment No. 164B:
After Clause 139, insert the following new clause:
("Revised punishment for gross indecency
.—(1) Section 3(2) of the Sexual Offences Act 1967 (revised punishment for gross indecency) is omitted.
(2) This section shall come into force on the date this Act is passed.").
The noble Lord said: In speaking to Amendment No. 164B, I should like to speak to several other amendments which are grouped with it. These are: 164C, 164CD, 175DA to 175DB, 178ZZA, 178ZA and 178ZCC to 178ZE—
Lord Renton: Would the noble Lord allow me to intervene? We have not heard one single word that he has said so far.
Lord Ponsonby of Shulbrede: I am quite happy to repeat the grouping as briefly as possible. Shall I just proceed? In rising to move the first of the amendments standing in my name, I should like to assure your Lordships that I do not mean to detain you long tonight. I have three matters to raise, of which Amendment No. 164B is the briefest. I put them forward for your consideration, looking for agreement from all sides and particularly from the Government.
Given the adjustments to the law relating to homosexuality embodied in Clause 139, these problems and something like these solutions merit a place in the Bill. I am also mindful of the Home Secretary's warning

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in another place—that this Bill should not become a general sexual offences Bill. The three matters that I wish to raise are broadly consequential on Clause 139. They provide a coherent package designed to deal with the offences which, in the real world, are likely to be committed under the law as it will stand when the Bill is enacted.
Amendment No. 164B is quite straightforward. The consequential amendment is No. 178ZD. It amends from five years' imprisonment to two years' imprisonment the penalty for gross indecency where the offence is committed with someone under the age of consent. It does so simply by repealing the revised penalty embodied in Section 3(2) of the Sexual Offences Act 1967, which covers offences committed between those over and under the age of 21. Under this amendment, there will not be a special category but the penalty originally set by the Sexual Offences Act 1956 will be restored. I suggest that the amendment is not merely broadly consequential on Clause 139 but that it is strictly so. Since the penalty embodied in the 1967 Act was based on an age of consent of 21, Section 3(2) is no longer appropriate. It covers an age group of 18 to 21 year-olds who are no longer criminalised. Yet if a man over 21 was held to have committed a consensual offence with one under 21 but over 18, for instance, because they breached the privacy provisions of Section 1(1) of the 1967 Act the older man would technically be liable to a higher sentence than the younger. That cannot be right.
To retain a maximum penalty of five years for offences relating to those just under the age of consent is, in any case, unjustifiably harsh. However, some Members of the Committee may, at first blush, wish to retain the higher penalty in relation to offences committed with 16 and 17 year-olds in order to signal the serious view that the law takes of those who have sex under the age of consent. I too take a serious view of that, but a two-year custodial sentence cannot be held to be a negligible penalty. I believe that an appropriate parallel is the penalty for unlawful sexual intercourse with a girl between the ages of 13 and 16.
Moreover, I remind the Committee that gross indecency is a consensual offence and that a 16 or 17 year-old can be held by the courts to have consented even though he is below the age of consent. If he has not consented, I suggest that the much more serious charge of indecent assault can be brought and on conviction that carries a maximum sentence of 10 years. Equally, in the case of an offence committed with a boy under the age of 16, a charge of indecent assault can be brought. In such an instance, Section 15(2) of the Sexual Offences Act 1956 provides that the boy cannot in law consent and so there can be no argument about that case. In short, the amendment is not soft on homosexuals; it merely seeks to tidy up the law in this instance.
Amendment No. 164C is designed to protect those just under the age of consent, as girls under the age of consent are protected in the event that they have sex with anyone. As the law stands, if two men have sex and one is under the age prescribed in the Sexual Offences Act 1967 both parties are guilty of an offence under the Sexual Offences Act 1956. That includes the younger
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under-age party. Under that same 1956 Act, if a. man and a girl under the age of consent have sex, only the man is guilty of an offence. The girl is treated, in my view, correctly as an innocent party; as a victim. My amendment would make that the position in relation to homosexual sex.
In the debate in another place, great stress was rightly laid on the need to protect the young. Indeed, that was the theme of our debate earlier today. The Home Secretary himself stated that we need to protect the vulnerable young men from activities which their lack of maturity might cause them to regret. Yet we do so by criminalising them. We plead their lack of maturity but if they make a mistake, their lack of maturity does not save them from criminality.
What effect does that have? I suggest that one effect is this: if there is an instance where a young man has been influenced by an older man to consent to have a sexual relationship with him, because that young man has thereby committed an offence he will be unwilling to seek the protection of the law as that will leave him open to prosecution.
It may be helpful if I briefly go through the amendment to explain its effect. It must be read in the context of Section 1(1) of the Sexual Offences Act 1967. It provides that,
"a homosexual act in private shall not be an offence provided that the parties consent thereto and have attained the age of twenty-one years".
It is that provision which lays down what we have come to call "the homosexual age of consent". That provision is amended by Clause 139 to make 18 the relevant age.
In the amendment standing in my name, the provisions on the age of consent are, in effect, codified and refined as follows: paragraph (a) re-enacts the basic principle that 18 should be the age of consent; paragraph (b) provides in the alternative that a homosexual act shall not be an offence if both parties are over the age of 16 and close contemporaries; paragraph (c) provides that, in any event, anyone under the age of 18 but over the age of 16 does not commit an offence if he has consenting sex with an older man.
I freely admit that this amendment does not. cover all hard cases. Its scope is narrow. It acts only on the age group of those over the age of 16 and under the age of consent. It may surprise Members of the Committee to know that under the 1967 Act boys under the age of 16 who may have homosexual sex are technically criminals. The amendment will leave them so. This is not an artificial question; it is certainly a most disturbing question.
Periodically we are told that hard cases make bad law. That is why I have excluded from the amendment boys under the age of 16.I am acting on the generality of cases. It is agreed that research—research funded by the Department of Health-—shows that the average age of young homosexual men at the time of their first sexual experience is about 16, even granted the present age of consent. Therefore, 16 appears to be a watershed, as of course it is for heterosexuals.
I do not propose a free-for-all for those under age. For instance, a 19 year-old who had a sexual relationship with a 16 year-old will still be committing an offence

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that a 16 year-old will not. In short, the amendment seeks to structure the law in what I believe to be a sensible fashion. I commend it to the Committee.
The third amendment standing in my name relates to male rape. It is Amendment No. 164CD and the consequential amendments are Nos. 175DAA and 178ZZA. The purpose of these amendments is to assimilate the offence of buggery without consent, which is usually referred to as male rape, with the offence of rape. It is to provide for the increased penalty of life imprisonment and to make the operation of the law in relation to the victim and to the accused the same as in the case of heterosexual rape. As part of this, and since under the existing law the offence of rape applies only to vaginal intercourse with a woman without her consent, the new clause will extend the definition of rape to include non-consensual buggery with a woman as well as with a man. All forms of non-consensual intercourse will therefore be treated in the same way and be subject to the same defences and penalties, which is a maximum penalty of life imprisonment.
It may be helpful if I go through the clause in some detail. Subsection (1) (a) amends Section 1(1) of the Sexual Offences Act 1956, which creates the offence of rape, to make its language appropriate for both men and women. Paragraph (b) amends the penalties for buggery and attempted buggery contained in the 1956 Act since under this amendment most cases of non-consensual buggery, whether with a woman or a man, will be charged with rape. A charge of buggery would be appropriate only in less serious cases; for instance, where there was consent. It is therefore also appropriate that its penalty be reduced to reflect this.
Subsection (2) amends the Sexual Offences (Amendment) Act 1976. That Act defines rape and provides certain defences as well as providing for the anonymity of complainants in rape cases and certain procedural matters. Paragraph (a) changes the definition of rape to include anal intercourse without consent with a woman or a man. Paragraphs (b) to (d) make consequential changes to the 1976 Act to reflect the revised definition of rape. Those changes do not alter the substance of the provision as amended but ensure only that they apply also to the new definition of rape.
Subsection (3) provides that the new clause and associated repeal in Schedule 11 should come into force on the date on which the Bill receives Royal Assent. The repeal referred to is of Section 3(1) of the Sexual Offences Act 1967 which introduced new penalties for buggery between men. That section would be superseded by the amendments made by Section 1(3) of the new clause.
The idea of male rape may well be unthinkable to many of your Lordships, as it is to me. But it has become clear from newspapers that it does happen. Indeed, the Criminal Law Revision Committee recommended as long ago as 1984 that the problem should be dealt with by increasing the penalty for buggery without consent to life imprisonment. That recommendation was never implemented.
The difference between that recommendation and the reform which I now propose is that the amendment
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would achieve the same objective by changing the definition of rape rather than increasing the penalty for buggery. In my view that has the advantage that the privacy provisions designed to protect the identity of rape victims would extend to the victims of this offence, both men and women. At present the provisions apply only in rape cases and that is almost certainly a factor in the under-reporting of that offence.
I must point out to the Committee that male rape should not be regarded as a homosexual offence. There are several extremely eminent reports which conclude that many of the men who commit that type of rape are heterosexuals. It is a disturbing fact that many of those who abuse boys are also heterosexuals. That offence can be seen as part of a larger pattern of violent attacks on members of the homosexual population.
Members of the Committee may be aware that a similar amendment was debated in another place during the passage of the Bill. At that time, it attracted all-party support. On that occasion the Government's attitude was that it was too important a problem to be embarked upon at that stage of the Bill. I hope that the Committee will feel that, to the contrary, this is such an important problem that we should use this occasion to embark upon and deal with the issue in this Bill.
I should point out that there is a certain overlap between the intention of this amendment and Amendment No. 164CA, which will be debated later, but I do not believe that there is any conflict. I beg to move.
7 p.m.
Earl Ferrers: The noble Lord, Lord Ponsonby, referred to a number of different issues while dealing with the group of amendments and I shall try to take them in the same order.
First, Amendment No. 164B, which is the first amendment to which the noble Lord referred, might appear to be a logical consequence of a reduction in the age of consent for homosexuals. Certainly, Section 3(2) of the Sexual Offences Act 1967 has a narrower application if the age of consent does fall to 18. But I would argue that it is not wholly redundant. Where the younger man is aged between 16 and 18, and the older man is over 21, if may be appropriate still to contemplate the higher penalty, even though there has been consent.
In any event, consent is not the only issue at stake. Consensual acts, which are performed in public, will continue to be illegal if they are grossly indecent, regardless of the age of the participants. The higher penalty reflects an anxiety about the particular risk that younger men may be unduly influenced by older men, and the greater expectation on older men that they should act responsibly. I do not think—and I say this with regard to all the noble Lord's amendments—that this is the time to consider embarking piecemeal on those very complicated matters.
I turn now to Amendment No. 164C, and to Amendment No. 178ZE, which is associated with it. The amendment goes a good deal of the way to providing an age of consent for homosexuals of 16. The Government have not sought either to support or to

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oppose such a proposal. Nevertheless, I should point out that, in the Government's view, this amendment comes a good deal closer to the 16 option than it does to the 18 one. In effect, it would mean that no one aged between 16 and 18 could ever be liable to prosecution for a consensual homosexual act unless it were performed in public. What signals that sends to a 17 year-old is something which your Lordships may wish to consider and to judge. I merely point out that this amendment protects the younger party only by discouraging the older party.
I understand that the noble Lord seeks to address the fear of corruption by older men. He feels uneasy too about the prosecution of younger men when perhaps it is the older party who is really the more culpable. I can understand that. But at present, those anxieties are addressed through the way in which individual cases are dealt with by the prosecuting authorities. That is the best way in which to deal with them.
I turn now to Amendment No. 164CD and its associated amendments. The noble Lord has made a powerful case on behalf of victims of a dreadful crime. The victims of non-consensual buggery—whether they are male or female—suffer a terrible, and often life-lasting, experience.
The central question is whether it is right to call those crimes "rape". The Government have long taken the view that rape is well understand as a particular crime —one that can be committed only by a man who has intercourse with a woman without her consent. Both the Heilbron Committee in 1975 and the Criminal Law Revision Committee in 1984 took that view.
It may be that public opinion is changing on this but, if that is so, there is still a difficult question as to what the new definition would be. The noble Lord, Lord Ponsonby, suggests one definition, but others press for something wider still. Others will argue that we are right to leave the offence as it is, but that we should look, instead, at the offence of indecent assault and the sentence which is available for that offence.
The Government are not unsympathetic to the argument that the maximum penalty for the non-consensual buggery of a man is anomalous in being set at a lower level than that for rape. But simply increasing that penalty would create further anomalies, and it is not a solution which the noble Lord proposes. But what he proposes raises a profound question about the public understanding of the crime of rape.
His amendments would also reduce the penalty for all consensual buggery of men—when one or both are under 21 or when it is done in private—to two years. That would remove the law's current provision for a severer penalty where the older man in a homosexual relationship is over 21. As I have already explained in relation to the offence of gross indecency, that is not a proposal which the Government support, although it is a matter on which I am willing to reflect, as indeed I shall reflect upon all that has been said.
However, I do not think that the noble Lord has demonstrated that the law is generally inadequate in a practical sense, even if it is not in a form which could be considered ideal. I do not think that his proposals, well-intentioned though they are, are as straightforward
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as they may seem, and this Bill would not be the Government's choice of vehicle for them. This is a criminal justice Bill. It is not a sexual offences Bill. The law dealing with sexual offences is chillingly complicated, and I really think that we shall have a tiger by the tail if we start trying to alter different facets of the law on sexual offences without considering the problem as a whole. But I shall certainly reflect carefully on what the noble Lord said about those very complicated matters.
Lord Monson: In my view it is a great pity that Amendments Nos. 164B and 164C have been grouped with Amendment No. KS4CD, which deals with a separate matter. I do not suppose for a moment that that is the fault of the noble Lord, Lord Ponsonby. However, I think that he made a very good case, at any rate in principle, for Amendment No. 164CD and I believe that the Minister acknowledged that fact in his reply. I hope that the noble Earl will realise that there is support from other parts of the Committee for at least the principle behind the amendment relating to male rape, if one may so call it. I hope that he will think very seriously on the matter and return with an alternative on Report.
Lord Swinfen: I should also like to say a few words on Amendment No. 164CD as my name is attached to it. Like my noble friend Lord Ferrers, I am not sure that "male rape" or "rape" is the right description of the crime. Non-consensual buggery is perhaps more accurate. However, I believe that the penalty should he brought into line with that for the rape of a woman. Non-consensual buggery for a homosexual man would be an extremely traumatic experience. For a heterosexual man it would be an even greater trauma. However, if it happens to a woman it. could be more distressing still because not only is she being violated, but her total femininity is being destroyed at the same time as she would not be used in a natural manner that one might expect. I believe that we should look at the punishment for such a heinous crime.
Lord McIntosh of Haringey: I understand the Minister's reluctance to embark on full-scale sexual offences legislation in the context of what is supposed to be a criminal justice Bill. However, I was puzzled by the Minister's response to Amendment No. 164B. I believe that the issue raised by my noble friend's amendment is consequential on the changes made in Clause 139. Without some such amendment as that proposed by my noble friend, there will actually be an anomaly.
The present law makes a distinction as regards intercourse between a man over the permitted age and one under it and two men who are both under the permitted age. At present, the penalty for an over-21 year-old having intercourse with a man younger than 21 is five years. When the permitted age moves to 18, we will have the anomaly that that 21 year-old watershed will also move to 18. Therefore, a man of 18 having sex with a man of 17 crosses the new watershed. The penalty for that will, therefore, be five years; whereas, under existing legislation, where the watershed is not set at 18, the penalty is two years. So, paradoxically, the penalty for that particular offence is being increased.

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That is strictly consequential on the existence of Clause 139.I wonder whether the Minister has anything more helpful to say about that amendment, although I concede that his answers on the other amendments were as helpful as he felt able to make them.
Earl Ferrers: I do not believe that I have anything further to add, other than to point out that I did say that we did not consider the proposal to be wholly redundant. Where the younger man is aged between 16 and 18 years of age and the older man is over 21 it may still be appropriate to contemplate the higher penalty, even though there might have been consent. However, as I said at the conclusion of my remarks on the group of amendments, I shall certainly consider what has been said and take it into account.
Lord Ponsonby of Shulbrede: I am grateful to the noble Earl for his comments, especially on Amendment No. 164CD. Obviously we are not dealing with a sexual offences Bill, but it is the practice of both Houses of Parliament to legislate in a piecemeal manner if there is a strength of feeling within both places that the matters concerned can be slotted in, so to speak, into the appropriate piece of legislation. Indeed, at an earlier stage of the Bill this Chamber decided to accept an amendment moved by the noble Lord, Lord Lester, which stated that rape within marriage should become an offence. Therefore, there is no reason why the amendments which I have put forward cannot be accepted.
The broad approach of Amendments Nos. 164B and 164C is to equalise the penalties for under-age sex between heterosexuals and homosexuals even though the age of consent will be different. The Minister quite rightly pointed out some anomalies in the latter, but I believe that I accepted in my introductory remarks that there are indeed some anomalies. However, I am disappointed that the Minister did not go further and accept that there should be an equality of penalty.
As to the word "rape", I should like to point out as a matter of interest that The Shorter Oxford Dictionary dates the application of the word (regarding the act of buggering a man or boy against his will) back to the late 15th century. It is perhaps high time that the law caught up with the modern world. However, given the nature of the noble Earl's comments, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Annaly: I beg to move that the House do now resume. In moving the Motion, perhaps I may suggest that the Committee stage begin again not before 8.15 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Law of Property (Miscellaneous Provisions) Bill [H.L.]
7.15 p.m.
Report received.
Clause 1 [Covenants to be implied on a disposition of property]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 1:
Page 1, line 17, at end insert:
("(2A) Sections 2 to 4 have effect subject to section 6 (no liability under covenants in certain cases); and sections 2 to 5 have effect subject to section 8(1) (limitation or extension of covenants by instrument effecting the disposition).").
The noble and learned Lord said: My Lords, in moving the amendment I should like to say a few general words about the amendments before the House today. The amendments principally carry through or tighten up the wording of amendments accepted in the Public Bill Committee or, in two instances, give effect to the principle of amendments tabled in the Public Bill Committee but withdrawn to enable consideration to be given to the best way of putting the principle into effect. I think that I may say without fear of contradiction that the very detailed consideration which the Special Standing Committee was able to give to the Bill, with the assistance of some very full evidence, has enabled some very worthwhile improvement to be made to what was already, to borrow the Hansard Society's metaphor, a fully-baked legislative cake.
Amendment No. 1 is tabled in response to the suggestion of my noble friend Lord Coleraine that the Bill should specifically draw the reader's attention to the fact that the implied covenants in Clause 2(1) (a), Clause 3 and Clause 4 are subject to the exclusions in Clause 6. Clause 6 excludes liability under those covenants for matters to which the disposition is already made subject—matters of which the covenantee actually knows, or matters which are the necessary consequence of something he actually knows. I quite agree with my noble friend's suggestion, and, indeed, consider that the logic behind it also requires that the effect of Clause 8, which enables the parties to vary the effect of the implied covenants in appropriate cases, should be flagged up in the same way.
I am grateful for my noble friend's forbearance in withdrawing his own amendments so that I might take the advice of parliamentary counsel as to the best way of bringing about the desired effect and table an amendment accordingly. Parliamentary counsel's ad-vice, which I accept, is that the insertion of a single provision in Clause 1 is the best drafting solution. It has the benefit of economy, since to insert the words "of subjection" in respect of each covenant affected would require amendments in five separate places and would run contrary to the aim of making the drafting of the covenants as straightforward as possible.
In addition, it is considered that the single provision will be no less effective than the five separate ones in bringing the effect of the later clauses to the reader's attention. This is because, in order to ascertain the full effect of the implied covenants, the reader must start with Clause 1, which not only provides definitions of

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important terms which apply to all the covenants, but also sets out which covenants are to be implied according to the key words used in the disposition. This amendment inserts the necessary provision immediately after the existing provision in Clause 1 explaining which covenants are implied by the use of which key words, and that seems to be the ideal place for it. I beg to move.
Lord Coleraine: My Lords, I am grateful to my noble and learned friend for bringing forward this amendment which admirably meets the point which I made in Committee. As my noble and learned friend said, I had put the words "of subjection" at the beginning of the individual clauses but I agree with him that one cannot read the later clauses properly without having read the first clause and it is both economical and common sense to limit the words "of subjection" to their appearance, as now, in Clause 1.
On Question, amendment agreed to.
Clause 6 [No liability under covenants in certain cases]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 2:
Page 3, line 36, after ("any") insert ("particular")
The noble and learned Lord said: My Lords, this amendment tightens up the wording of an earlier amendment, which made it clear that there is to be no liability under certain of the implied covenants for anything to which the disposition is expressly made subject. There was some concern that vendors might attempt to water down these covenants by inserting blanket provisions in dispositions making them subject to all manner of undisclosed incumbrances.
As I mentioned in the Public Bill Committee, there is a well-established rule that the existing provision in the Law of Property Act whose wording that amendment followed does not permit such general exclusions. Parliamentary counsel has nevertheless re-examined the formulation, and the resulting insertion of this one word will, I hope, put the position beyond doubt. I beg to move.
On Question, amendment agreed to.
Clause 7 [Passing of benefit of implied covenant]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 3:
Leave out Clause 7 and insert the following new clause:
Annexation of benefit of covenants
(". The benefit of a covenant implied by virtue of this Part shall be annexed and incident to, and shall go with, the estate or interest of the person to whom the disposition is made, and shall be capable of being enforced by every person in whom that estate or interest is (in whole or in part) for the time being vested.").
The noble and learned Lord said: My Lords, in moving Amendment No. 3,I should like, with the leave of the House, also to speak to Amendments Nos. 6 and 9. Amendment No. 3 removes Clause 7, which limits the passing of the benefit of the implied covenants for title to express assignment and certain exceptional cases where title passes by operation of law. It substitutes a new Clause 7 designed to continue expressly the position under the existing law, whereby the benefit of the covenants is annexed to the estate or interest of the person taking the disposition and runs with it so as to be capable of enforcement, within the limitation period, by any successor in title. This is a change of some
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substance, but one overwhelmingly favoured by the Committee, which took the view that the provision recommended by the Law Commission, while having the advantage of simplicity of concept in line with the increasing prevalence of registered land, might have harsh results in some exceptional cases, and might also result in buyers routinely attempting to secure express assignment, which would thwart the very streamlining at which the provision was aimed.
This change was proposed by my noble friend Lord Coleraine, and I am once again grateful for his graceful withdrawal of his own amendment so that I might take advice on how best to give effect to the principle. The amendment quite simply preserves the existing principle, presently contained in Section 76(6) of the Law of Property Act 1925 but extending back to 1300 —therefore it is of respectable antiquity—that the benefit of the covenants for title is annexed to the estate or interest of the covenantee. It was considered appropriate to set out the provision on the face of the Bill rather than to incorporate it by reference to Section 76(6), in order to make the position as clear as possible to the reader. The new clause does the same as Section 76(6) has done since 1925 and its predecessors have done since the 14th century, but Parliamentary counsel has, in keeping with the spirit of the Bill, taken the opportunity to simplify and modernise the wording.
Amendments Nos. 6 and 9 are consequential on the deletion of the existing Clause 7. They remove from the transitional provisions in Clauses 10 and 11 subsections which apply the provisions of the existing Clause 7 in certain transitional cases. I beg to move.
Lord Mishcon: My Lords, I think it should be known generally to the House that this was one of the matters upon which the Special Standing Committee differed from the Law Commission, as the noble and learned Lord has said. However, it did not differ from the Law Commission in one moment of speech—there was in fact a considerable debate. I remember that our chairman drew up a memorandum on this which was carefully considered by the Special Standing Committee. In that memorandum he put the arguments for and against very concisely. It was indeed after quite a bit of deliberation that the Standing Committee decided in this one major respect to differ from the recommendations of the Law Commission. I think the public should know and the legal profession should know that this was, as I said, very carefully considered. It is a maxim that I suppose weighed with the Special Standing Committee—that if one has something that works perfectly well, why alter it?
The Lord Chancellor: My Lords, I think if would be right for me to endorse what the noble Lord, Lord Mishcon, has said about the care with which this matter was considered by the Committee. Certainly I would also wish very specially to say how much the Committee was indebted to the Chairman of the Special Standing Committee, my noble and learned friend Lord Brightman, for the care that he took in marshalling the arguments on both sides of this question, as well as the care he took in bringing to our attention all the other points raised on the Bill by a variety of commentators.

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I wish to mention one commentator in particular, Mr. Nugee, of senior counsel, who is extremely experienced in these matters, and who provided the Committee with very detailed memoranda. I think it would be fair to say that the main thrusts of these memoranda have been met by the two main changes that the Committee approved —as I hope your Lordships will, also—in the Law Commission's proposals; namely, to modify somewhat the terms of the full guarantee and also to go from the Law Commission's proposals of no running with the land for these covenants, to what is embodied in this amendment. I should like to acknowledge the help that we obtained from these memoranda as well as from all the other contributions by the Law Society and by a number of other distinguished commentators who have helped the Committee to see where the Law Commission was right, and also to see perhaps whether it would be wise to deviate to some extent—as we have done—from the detailed work of the Law Commission. I beg to move.
On Question, amendment agreed to.
Clause 8 [Supplementary provisions]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 4:
Page 4, line 31, after ("gwarant") insert ("teitl").
The noble and learned Lord said: My Lords, in moving Amendment No. 4, I should also like to speak to Amendments Nos. 5, 7 and 8 and Amendments Nos. 10 to 13, and 15 to 19 inclusive.
These amendments complete the job begun by my noble friend Lord Coleraine in a series of amendments tabled in response to a suggestion by the Law Society to which I referred just a little while ago. The effect is to change the key words which will be employed to imply the new statutory covenants for title into a disposition. Instead of dispositions being expressed to be made "with full guarantee" or "with limited guarantee" they will be expressed to be made "with full title guarantee" or "with limited title guarantee" as appropriate, to make the purpose of the implied covenants entirely clear and avoid the possibility that a layman might believe the guarantee to involve matters other than title.
Parliamentary counsel has identified a further 12 places in the Bill, in the transitional provisions of Clauses 11 and 12 and the consequential amendments in Schedule 1, where the word "title" needs to be inserted, and Amendments Nos. 7 and 8, 10 to 13 and 15 to 19, and indeed also Amendment No. 20, take care of this.
To leave the matter at that would be to leave out an important aspect of the amendments. Amendments Nos. 4 and 5 arise out of the fact that the Bill provides for key words not only in English but also in Welsh. They ensure that those who carry out conveyancing in Welsh will also have the benefit of this important change, by inserting the word "teitl" in the appropriate places. I have it on the best authority that the result conveys the correct meaning. I beg to move.
7.30 p.m.
Lord Prys-Davies: My Lords, I support Amendment No. 4, which has been fully explained to the House by the noble and learned Lord the Lord Chancellor. The Welsh translation of the key words is a complete, and I believe accurate, translation.
I wish to express my gratitude to the noble and learned Lord the Lord Chancellor for having alerted me to the changes to the original form of the key words. I am grateful for the amendments. I am sure that those who prepare documents in the Welsh language will be grateful that at long last we have the amendment, which we have been seeking for 20 or 30 years.
Lord Mishcon: My Lords, I know that my noble friend Lord Cledwyn of Penrhos, who always rises in this House in order to spread the glory of the Welsh tradition, as a distinguished Welsh solicitor would have wished to thank the noble and learned Lord for what he has done in regard to the Welsh insertion.
Lord Coleraine: My Lords, I am grateful to my noble and learned friend and parliamentary counsel for completing in ample measure the work which I started in Committee. I believe that these words will be read a million times a year by people up and down the country. It is very good that people should be reading the words "title guarantee" rather than just "guarantee" because the word "guarantee" was unhelpful.
The Lord Chancellor: My Lords, I am extremely glad that we have been able to improve the proposals of the Law Commission in this way. It illustrates that sometimes the practical aspects of these matters need further consideration, even after the cake has been fully baked with care by the Law Commission.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 5:
Page 4, line 33, after ("gwarant") insert ("teitl").
The noble and learned Lord said: My Lords, I have already spoken to the amendment. I beg to move. On Question, amendment agreed to.
Clause 10 [General saving for covenants in old form]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 6:
Page 5, line 12, leave out subsection (3).
The noble and learned Lord said: My Lords, I spoke to the amendment with Amendment No. 3. I beg to move.
On Question, amendment agreed to.
Clause 11 [Covenants in old form implied in certain cases]:
The Lord Chancellor The Lord Chancellor moved Amendments 7 to 9:
Page 5, line 25, after ("full") insert ("title").
Page 5, line 35, after ("full") insert ("title").
Page 5, line 39, leave out subsection (4).
The noble and learned Lord said: My Lords, the amendments were spoken to with Amendments Nos. 3 and 4. I beg to move.
On Question, amendments agreed to.
Clause 12 [Covenants in new form to be implied in other cases]:
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 10 to 13:
Page 6, line 9, after ("full") insert ("title").
Page 6, line 12, at end insert ("title").
Page 6, line 19, after ("limited") insert ("title").
Page 6, line 23, after ("full") insert ("title").
On Question, amendments agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 14:
Page 6, line 28, at end insert:
("(6) Similarly, where-—

(a) this section applies, and

(b) any of the covenants implied by virtue of this Part on the intervening disposition referred to in subsection (1) took effect in a modified form,

the contract shall be construed as requiring (so far as possible in the circumstances) a corresponding modification of the covenants so implied on the disposition referred to in subsection (2), (3) or (4).").
The noble and learned Lord said: My Lords, the amendment was intended to deal with a potential problem in the transitional provisions for certain exceptional cases in Clause 12. It arose out of a reconsideration of the Bill when the various amend-ments had been incorporated. The circumstances which were envisaged and which the amendment was intended to address would be very rare. However, it was considered worth dealing with the problem, however small, on the basis that the remedial provision had no undesirable side effects. In the event, however, I am indebted to the noble Lord, Lord Mishcon, for identifying, once he had seen the amendment, just such a possible side effect.
The amendment concerned the very rare transitional cases where a contract entered into before commence-ment of Part I has effect after commencement, and between commencement and the eventual disposition required by the contract there is an intervening disposition made with full title guarantee to the person making the eventual disposition. Clause 12 has the effect, in those circumstances, of requiring the final disposition to be made either with full title guarantee or limited title guarantee according to the key words referred to in the contract. The amendment would cater for the possibility that the full title guarantee in the intervening disposition might have been varied to reduce its strength and would have ensured that the person making the final disposition would be required to pass on only the guarantee as modified.
That seemed a reasonable solution, but unfortunately in solving one potential problem the amendment might give rise to another; namely, that the intervening disposition might be made, for example to a nominee, expressed to be with full title guarantee but modified to an extent that would make it worthless to the person taking the eventual disposition.
That point was kindly brought to my attention by the noble Lord, Lord Mishcon, and has led me to reconsider the need for the amendment. I am persuaded that the best way of handling the problem is for publicity to be given to the possibility at which the original amendment was aimed so that parties can make the necessary contractual arrangements to avoid any problems. In that event the amendment itself would not be necessary. It is
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certainly possible to deal with the matter, so long as one knows of the problem, by the terms of an individual contract.
I have already committed myself to providing the publicity necessary to ensure that the provisions of the Bill are known in advance of its commencement to those whom it will affect. That particular point will be highlighted.
Although I have indicated my ultimate view about the amendment, I believe that I ought to move it so that the matter is properly on the record and in order to give your Lordships an opportunity to comment on the matter. However, I certainly do not intend to press the amendment, for the reasons which I have given. I beg to move.
Lord Mishcon: My Lords, I should like to thank the noble and learned Lord for the notice that he took of the point which I put to his department. I believe that his solution to the problem is the correct one. I am grateful to him for the attention which he paid to the comments I made.
The Lord Chancellor: My Lords, in those circumstances I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 1 [Consequential amendments]:
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 15 to 20:
Page 11, line 33, after ("limited") insert ("title").
Page 11, line 44, after ("limited") insert ("title").
Page 12, line 40, after ("full") insert ("title").
Page 13, line 26, after ("limited") insert ("title").
Page 13, line 40, after ("limited") insert ("title").
Page 14, line 3, after ("limited") insert ("title").
The noble and learned Lord said: My Lords, I spoke to the amendments with Amendment No. 4. With your Lordships' leave, I should like to move the amendments en bloc. I beg to move.
On Question, amendments agreed to.
The Earl of Strathmore and Kinghorne: My Lords, I beg to move that the House do now adjourn during pleasure until 8.15 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.37 to 8.15 p.m.]

Criminal Justice and Public Order Bill
House again in Committee.
[Amendment No. 164C not moved.]
Baroness Mallalieu Baroness Mallalieu moved Amendment No. 164CA:
After Clause 139, insert the following new clause:
("Decriminalisation of heterosexual consensual buggery in private
.Notwithstanding any statutory or common law provision, it shall no longer be an offence for a man and a woman both over the age of 18 to commit buggery in private where both consent.").
The noble Baroness said: In moving Amendment No. 164CA, I speak also to Amendment No 164CB.
This criminal justice Bill has been much criticised for creating new criminal offences. This first modest amendment takes, I hope, a small step towards redressing that balance by seeking to decriminalise an

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activity which is far from uncommon, which many of the general public are astonished to learn is a criminal offence, and yet more are dumbfounded to learn still attracts a maximum penalty of life imprisonment.
Anal sexual intercourse between an adult man and an adult woman conducted in private where both consent carries the maximum penalty permitted by our criminal law. Among those who know those facts, there is a widespread and erroneous belief that notwithstanding the law as it stands on the statute book no one in fact goes to prison for having anal intercourse in those circumstances. That is wrong. Cases do come before the courts and people are going to prison today for just that. In my experience it tends to happen in the following ways.
Most cases involving this sort of activity, of course, never see the light of day because no one complains and the two people concerned are the only two people who ever know about it. However, after the breakdown of a marriage, or a sexual relationship, there are times when a woman will make allegations of violence, sometimes of rape, and occasionally of buggery against her former partner. A trial may then follow. If the defendant admits buggery but claims that the woman consented he has no defence. If he insists on contesting the allegation on that basis, the jury are told by the judge that they have no alternative but to convict him as consent is no defence. If he is found guilty, or pleads guilty, whether or not the woman consented is a question for the judge alone to decide, not the jury, because it becomes purely a question of mitigation.
Where the sentencer decides that the buggery was non-consensual, that the woman did not consent, a period of some years' imprisonment akin to the sentence in a rape case, possibly one with aggravating features, is imposed, and rightly so in my judgment. However, where the sentencer decides that the offence either was or may have been consensual, the current edition of the Encyclopaedia of Sentencing gives advice to judges who have to sentence in those circumstances. It indicates that the proper sentence for consensual buggery between a man and a woman in private is one of an immediate custodial sentence of three months.
Perhaps I may refer to just two of the cases which that encyclopaedia cites to judges as being an indication of the approach that they should take and the reasoning behind it which may seem incredible to many Members of the Committee. The first of the cases to which I refer is R. v. Dixon, a case decided by the Court of Appeal in 1982. I simply quote from Lord Justice Lawson's judgment in dealing with that appeal, which involved a sentence for consensual buggery between a man and a woman who was aged 19. He said in the course of his judgment:
"In 1967 the law was changed in relation to homosexuality, and buggery between consenting males in private, provided that both parties were over 21, was no longer a criminal offence. Exempted from the mitigating provisions of that law were those who were under 21. It follows that so far as this court is concerned, the policy of the law is what it was when Parliament passed the 1967 Act, namely, that it is a criminal offence to commit buggery with anyone under the age of 21. Parliament in 1967 did not, as it could have done, say that buggering females in private, if they were over 21, was no longer to be a criminal offence. It follows
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therefore that this court should approach buggery with females in the same way as Parliament did: namely, that it continues to be a criminal offence and a serious criminal offence".
He added:
"This is the kind of offence which should normally attract a custodial sentence".
A sentence of three months' immediate imprisonment was imposed in that case.
The second, more recent, example is the case of R. v. Bush in 1989. Perhaps I may indicate the circumstances of that offence because it may give the Committee some indication of the kind of cases which are still coming before the courts. The appellant pleaded guilty to buggery of a woman. She had been living with him for over a year before they separated. At the time the woman was pregnant and subsequently gave birth to a child; the appellant meanwhile married someone else. About three months after they had separated, the appellant visited the woman in her home and was admitted after he threatened to kick the door down. They spent the night together and sexual intercourse and buggery took place. The appellant was indicted for rape and buggery but was acquitted on the charge of rape. He was sentenced on the basis that the buggery took place with the consent of the woman who was 26, and he received an immediate sentence of nine months' imprisonment.
In giving judgment in the Court of Appeal, Mr. Justice Auld said:
"Counsel who appears on behalf of the appellant submits that in an appropriate case it is an offence which no longer requires a custodial sentence. We do not go that far. It would be difficult to do so in the light of Parliament having recently increased the maximum sentence for this offence from one of 14 years to one of life imprisonment".
He added:
"While we cannot accept counsel's submission that this offence should attract no custodial sentence, we feel it can be reduced from a figure of nine months".
Accordingly, the court substituted a sentence of three months' immediate imprisonment in its place.
A great deal has been said and written about the need for equality in law between the sexes. There have been many articulate pleas, not least in this Chamber in the four hours or so of the debate tonight, for sexual freedom for adult men over the age of 16, as in some cases Members of the Committee have argued, and in other cases, over the age of 18. The latter provision has found favour in another place and here tonight.
I ask the Committee: can it be right for a form of private sexual behaviour with consent, which is legitimate when it takes place between two men, to attract an immediate prison sentence when it involves a man and a woman? I suggest that it cannot. It may be said by the Minister that a change in the law of this nature would lead to the wrong message of approval for anal sexual intercourse being sent from Parliament at a time when we are all aware of the dangers in connection with AIDS. But I suggest that such an argument, if it were to be advanced, would be fanciful in the extreme.
The idea of anal sexual intercourse is, I suspect, repugnant to most people. Is it likely that those who feel that repugnance, as a result of any decision by the Committee of this House or indeed Parliament as a

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whole, will cast aside that repugnance, change their minds, consent and take part in an activity in which they would not otherwise wish to engage?
Equally, can it really be right that it is the law which prevents people engaging in this activity when, among other things, the health risks of anal intercourse are well known and would themselves, one would have thought, provide a deterrent to those likely to be deterred? On the other hand —and I go back to the point I made at the beginning—many members of the public are wholly unaware of the legal position in relation to this matter.
It may be said, I suppose, as was said in relation to the immediately preceding amendments, moved by the noble Lord, Lord Ponsonby, that the Bill is not a sexual offences Bill. However, another place, like the Committee tonight, has considered the Bill a suitable conveyance for the decriminalisation of offences of this very nature in relation to young adult men. Surely, the argument that criminalisation of this kind of behaviour inhibits the participants from seeking medical attention where it may be necessary is every bit as valid, if not more so, for women as for men.
Perhaps the reason that the nettle of this matter was not grasped back in 1967 or subsequently is that there was no vociferous pressure group to argue for it, or perhaps Parliament was simply too mealy-mouthed to grasp a subject which many people find distasteful.
It is a matter of urgency because people are being sent to prison for the offence today. If the Government do not choose to take this opportunity to rationalise an area of legislation which is almost wholly unenforce-able, which is anachronistic, inequitable and draconian in its penalties, if the long arm of the law is still to try to reach behind the bedroom door to wave its finger of disapproval at adult men and women in this way, then those who say that the law is an ass will be right. I hope that in his reply the Minister will feel that he can accept the amendment.
The second amendment in the grouping, Amendment No. 164CB, is a very modest measure indeed. I hope that it will find favour with the Minister. All it does, or seeks to do, is to put the male complainant in a sexual offence in exactly the same position as the woman who makes a complaint of that nature. People were, I suppose, increasingly sickened by the way in which, in trials involving sexual allegations, a woman's past history was paraded in cross-examination as a means of discrediting her testimony and sometimes, I am afraid, perhaps intimidating her also. As a result, restrictions were imposed by the law on the extent to which cross-examination of that nature could take place without the leave of the judge. In practice, what happens is that after the complainant—the female complainant at present —has given her evidence in chief and before cross-examination in the absence of a jury, the defence counsel who wishes to ask such questions must seek the judge's leave. That normally involves giving an outline of the reasons why he wishes to do so, the relevance of those questions to the defence, and the extent of their scope. Having heard from defence counsel and the counsel for the Crown, the judge gives a ruling. I personally have never known a judge refuse to allow relevant questions to be asked in those circumstances.
There was anxiety, before that change in the law was made, that it might interfere with the ability of the defence to conduct the case properly. But that has not happened. What I am sure has happened is that some people with valid complaints have been encouraged to come forward when previously they might well have feared prying questions, unrelated to the trial, about their past sexual history. Surely there can be no justification for leaving a male complainant exposed when the law has accepted that a female complainant is entitled to, and should have, protection. All that the amendment does is to extend the present provisions in that way. I beg to move.
8.30 p.m.
Lord Campbell of Alloway: Perhaps I may put the other side of this argument—not for the sake of argument, but because I personally believe that the other side of the argument is right. I shall be brief. The object of the first amendment, Amendment No. 164CA, is to decriminalise a maximum sentence of life imprisonment for consensual anal intercourse. In practice, the man goes to prison for three months and the woman does not. But why should the man not go to prison? It cannot happen unless the man takes a certain initiative. It is a serious offence. The Committee may think that this is carrying so-called equality before the law a little too far. I think that a man owes a certain duty to a woman. I will not go into the matter, but I dissociate myself from what has been said this afternoon; namely, that the law has no moral role in setting the standards.
As to the second amendment, years ago when I first took silk my first brief was to defend an alleged member of a paedophile gang who preyed on the young at railway stations —a sort of "Cathy Come Home" affair. He was duly and rightly convicted at the Old Bailey But the Court of Criminal Appeal quashed his conviction on certain counts on the ground that similar fact evidence ought not to have been admitted because it was so prejudicial. In that case, in those circumstances (which are not those in the amendment) the judge, in the absence of the jury ruled that it was right to admit such evidence. But this is another situation. Other members of the gang in that case conducted what we call a cut-throat defence in which they sought to place the responsibility for the blame on my client. There is no doubt, notwithstanding the most careful directions in the summing up, that that had an effect.
The question arises on this amendment: where there is a multi-count indictment, where there are several defendants and where some of them are jointly charged, is it not unfair to the co-accused merely to allow the discretion to operate if it is unfair to the accused? Ought not the balance to be, as presently held, as to what is unfair, full-stop. Therefore, with respect to my noble friend—I must not call her my noble friend, she is my learned friend who has great experience of the courts, greater perhaps than mine in criminal matters—I have my doubts as to whether this amendment might not operate unfairly in favour of the accused but against another accused. For those reasons I oppose it.
Lord Ackner: I always sympathise with the noble Earl, Lord Ferrers, when he groans at the sight of lawyers disagreeing and he has to thread his way through the disagreement. I am bound to say that I commend the initiative of the noble Baroness Lady Mallalieu in bringing this matter before the Committee.
The noble Lord, Lord Campbell, said that buggery with a women is a serious offence. That is as the law stands. But it is totally unjustified if buggery between consenting males aged 18 or above in private is not. I respectfully submit that it is totally insupportable, with the law changed in that direction, and changed in that direction to a less wide extent some years ago, to maintain that sex discrimination.
The noble Baroness referred to the consequences in criminal law, a matter in which she is an expert. Perhaps I may refer, from my experience many years ago, to its relevance in civil law. One of the evils that was identified by the Wolfenden Commission was the opportunity given to blackmailers to blackmail the homosexual so long as the homosexual offence was a criminal one. Exactly the same situation occurred in my experience in a brief that I had as a young QC. A husband and wife indulged in this sexual activity, to the wife's satisfaction—indeed it was the only method of satisfaction which the wife enjoyed. They fell out some years later. She presented a petition making a series, according to my instructions, of unfounded allegations, including anal intercourse without her consent — knowing, of course, that that was an allegation of a criminal offence. He could not in that situation— because consent was no defence—contest that petition. He had to throw his hand in, and, on the basis that she did not persist in the allegations of the anal intercourse, pay her very sizeable maintenance, which was wholly unjustified. That is a civil consequence of the anomaly of the law in this situation.
I quite understand that the Government do not wish to extend further legislation on the subject matter of sexual offences. The Government's reluctance is wholly understandable because they were not responsible for the introduction of Clause 139. But being landed with Clause 139, a clause relating to homosexuality on which they said there was to be a free vote, this is one of the consequences. You cannot just drop a curtain and say, "Very well, this has been introduced; it is within the purview of the Act, a free vote, and we will do whatever you say", and then say that it has no further consequences. That seems to me to be a myopic approach to legislation in the important criminal legislation field.
With regard to the second amendment, again, all that the noble Baroness seeks to do is to say that what is good for the goose is good for the gander. If there are to be prosecutions in regard to homosexual offences, just as in rape cases, then this particular limit to cross-examination, which is unjustified and requires the protection of the court, should exist.
Again, having been obliged to let in the subject matter of Clause 139, this is all part of the inevitable consequences. If this opportunity is not taken, then these wholly absurd anomalies in the law will continue, and continue until when? —until there is a new sexual
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offences Act? There have been so many references to sexual offences in this Bill in one form or another that one anticipates with a certain degree of relief the absence of sexual offences legislation for a little time to come. But to put off the day seems to me to be merely closing one's eyes to the inevitable, and continuing anomalies in the law which the legislation is intended to cure. Therefore I strongly support the amendment.
Lord Renfrew of Kaimsthorn: I should like to support Amendment No. 164CB in particular. To a layman—I hesitate to rise among those of legal eminence who disagree on these matters—it seems to be a straightforward matter of common sense, although I realise that in this field common sense is not always the best guide. But we are speaking of someone—for example, a man —who has been indecently assaulted or assaulted with intent to commit buggery and the person who has been assaulted is clearly the complainant. It seems altogether appropriate that the complainant should not be subjected to cross-examination about other aspects of his personal life or past relationships. In just the same way—as the noble Baroness so effectively argued—we accept that, when a woman complains of being raped, it is not appropriate in this day and age to cast all kinds of aspersions on her past life. What is relevant is whether or not she has been raped. What is relevant here is whether or not the offences have been committed. I feel that the amendment is entirely coherent and is a piece of tidying up which, as the noble and learned Lord said, must follow upon the various other matters that we have been discussing.
With regard to Amendment No. 164CA, I have sometimes felt during the debates this afternoon that in 20 or 30 years' time people reading some aspects of the debate—about buggery, sodomy, consensual acts between males and so on (and we have not even discussed the distinctions between buggery and sodomy but no doubt that is a matter that we can leave to another occasion) and the different provisions with their different terminologies in the amendments before us, which relate to adults and adult behaviour and indeed consensual behaviour behind closed doors—will feel that it beggars belief to have debated such matters in such a manner.
I entirely agree with the amendment proposed by the noble Baroness. As a result of the matters which have now been agreed in the other place and in this Chamber, this legislation must follow logically. To take up the words of the noble and learned Lord, what is good for the goose is good for the gander. I am sure that many Members on both sides of the Chamber would agree. It would be extraordinary to leave this provision as an offence on the statute book when consensual acts of a comparable nature between males are no longer criminal. I hope that my noble friend will feel able to respond constructively to the amendment.
One can understand that my noble friend does not wish to grab the tiger by the tail. But the tiger is prowling round him and very difficult for him to avoid. One has every sympathy with the Minister in these

81
circumstances. But surely this is one piece of tidying up that must follow the provisions that have now been agreed by both this Chamber and the other place.
Lord Monson: Unlike my noble and learned friend Lord Ackner, I am not a lawyer in the course of disagreeing with another lawyer. In fact, I am not a lawyer at all. If the noble Earl, Lord Ferrers, should groan, it will be for a different reason. Whatever may be said about Amendment No. 164CA, it cannot be denied that the noble Baroness, Lady Mallalieu, most certainly has logic and consistency on her side, especially if one takes the view—as I have always done and as the Government apparently do now—that adults have a perfect right to take risks with their own health and safety.
It will be very interesting to see how the Government react to the amendment. Presumably they will support it, since the noble Earl, Lord Ferrers, in replying to the amendment in the names of the noble Lord, Lord Mayhew, and the noble Earl, Lord Clanwilliam, made it clear that the Government have no particular objection to buggery as such but merely disapprove (I hope that I have copied correctly the noble Earl's words) of homosexuality in general. Those words should be noted: not homosexual activity but homosexuality. So even chaste expressions of homosexual inclinations are disapproved of by the Government.
I repeat that the noble Earl said that the Government have no particular objection to buggery as such amid all the other forms of activity of which we have been talking. So, in logic, they should support the first amendment of the noble Baroness.
8.45 p.m.
Lord Renton: I am opposed to Amendment No. 164CA. In the first place, I feel obliged to make a purely technical objection to it. The amendment states that:
"it shall no longer be an offence for a man and a woman both over the age of 18 to commit buggery".
In the nature of things a woman is incapable of committing buggery. She can be the passive agent in the act of buggery. She can aid and abet the offence. But she cannot commit it. Therefore, technically, it seems to me that the proposed new clause is wrong.
I want to go a little further. In the course of a long life my understanding has been that whatever men may feel about being the passive agents in buggery, women have the very strongest objection to it because of the pain it causes and because of its unnatural character. It would surprise me very much indeed to find that it is realistic to legislate in this way. Therefore, quite frankly, I hope that the noble Baroness will not press Amendment No. 164CA,
With regard to Amendment No. 164CB, I have nothing to add to what my noble friend Lord Campbell of Alloway said.
Lord Monson: Before the noble Lord, Lord Renton, sits down, is he aware that a month or so ago a women's magazine recommended buggery to its female readership on the grounds that it could be a very
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pleasurable activity? I must say that that astonished me but presumably the editorial staff had done their homework and knew what they were talking about.
Lord Renton: All I can say is that it is the first time that I have heard of that being so.
Lord Wigoder: The noble Lord, Lord Renton, makes two points about the first amendment. One is that by the nature of their being, although a man can commit an act of buggery, a woman cannot do so. She can only be a party to it. Surely two men who commit an act of buggery with each other both commit the act of buggery. In those circumstances, I can see no difference between two men who commit the act and a man and a woman who commit it.
The other point made by the noble Lord is that many women object to the practice. There are many men who object to the practice. So far as the women who object are concerned, the amendment will not apply. It is only where the woman consents—which means freely consents—that this amendment applies.
I do not want to repeat any of the arguments used by the noble Baroness, Lady Mallalieu, or the noble and learned Lord, Lord Ackner. I think it sufficient to say from these Benches that it seems to me that on grounds of logic and fairness the case that they make out for the two amendments is quite overwhelming.
Lord Clifford of Chudleigh: One point that seems to have been lost at the moment is that the plain fact of life that we are talking about is anal intercourse. One can call it buggery but it remains anal intercourse. Whether one is male or female, there is one passage for faeces. If we are to talk about this subject, we must understand that the Government, as we have already heard this evening, have spent a lot of money, taxpayers' money, warning people of the difficulties that will ensue should they practise anal intercourse and should they be bisexual and pass on the disease called AIDS.
There cannot be any discrimination at all when it comes to anal intercourse. Both the male and the female have an anus. I do not feel that we should forget that it is the taxpayers' money that we are discussing at the moment and we are trying very hard to stop such a disease as AIDS spreading in this country.
Earl Ferrers: I am always deeply touched by the words of the noble and learned Lord, Lord Ackner, who sympathises with me and who says that I groan at the sight of lawyers disagreeing. The noble Lord, Lord Monson, also said that I groan. I was not aware that groaned. I never groan at lawyers disagreeing with each other. I enjoy it enormously. It happens constantly because no two lawyers ever agree, not even when the noble and learned Lord, Lord Ackner, is one of them. I am amazed by their silver tongues and how they all manage to produce perfect arguments in total disagreement with each other. I only wish that I had that facility. However, I am a layman and do not.
I wish the sympathy which the noble and learned Lord extended to me this evening had been extended to me last week when he moved the amendment on

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criminal injuries compensation. There was not much sympathy then and perhaps he might like to extend a little of that to me later on.
Lord Ackner: The noble Earl overlooks that there was total agreement on that occasion and sympathy was therefore not called for.
Earl Ferrers: It seems to me that the noble and learned Lord is less than generous. If there was total agreement then that was the one occasion when sympathy was required.
I understand the position put forward by the noble Baroness, Lady Mallalieu. As usual she made a forceful case and when she does it is sometimes difficult to think that there may be a contrary case. She is saying that it is absurd—a point underlined by the noble and learned Lord, Lord Ackner —that buggery between consenting heterosexuals should be an offence when buggery between two homosexuals should, if not be acceptable, at least not be an offence. In that the noble Baroness has a forceful point.
The noble and learned Lord, Lord Ackner, said that he was amazed by the amount of sexual offence amendments which have cropped up in the Bill. So am I. He said that it would obviously result in it not being necessary to produce a sexual offences Bill later on. That is one view. However, the Government are often castigated for introducing legislation in a hurry and are told that not enough thought was given to it, that it is a knee-jerk reaction and so forth. Yet here we are producing some extensive amendments —we have had a range of them this evening—on a sensitive and deeply complicated subject at the end of the parliamentary process of the Bill. I suggest to the Committee that, important though these matters are—I would not for one moment diminish their importance—they need a little more thought given to them than the time available between now and when the Bill will require Royal Assent.
Amendment No. 164CA would make legal in England and Wales the buggery of a woman with her consent and that would be a significant change in the law. I do not believe it is an issue which has been the subject of wide debate outside this Chamber—no doubt it has been widely debated with vigour by the legal community who are the people who normally come up against these problems. There is clearly a great deal of force in the argument that as it stands the law can catch people who are not prosecuted and, it could be said, should not be prosecuted. But what form any reform should take is more difficult to decide.
The noble Baroness proposes an age of consent of 18. If your Lordships favoured an age of consent for homosexual acts of 21, that might have been the right age at which to allow the buggery of a woman with her consent. Others, including the Criminal Law Revision Committee in 1984, have argued for the age of 16 because that is the age at which a young woman can consent in law to other sexual acts. If a woman can consent to a normal sexual act at the age of 16, it may be said that she ought to be able to consent to an unusual form of sexual act also at 16.
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The problem is not as straightforward as it seems. As I explained on earlier occasions, the Government do not wish to see the Bill used as a vehicle for a change to a number of provisions in the sexual offences area. I should like to consider carefully the arguments put forward on both this amendment and the following one. The noble Baroness gave an eloquent exposition of the case for the male victim of a serious sexual assault. There is, of course, a good deal of force in her argument that cross-examination about a person's sexual history may be just as unpleasant for a man as it is for a woman. But the effect of her amendment would be to confer a protection on men which is considerably more extensive than that which the law allows for women, though the law applies only to victims in rape cases.
Some would argue that the protection of women is also too narrow. I certainly would not dismiss that argument. But any extension of the law in this way affects the defendant's right to make his defence in the way in which he chooses. The amendment would therefore restrict the evidence which can be placed before the jury.
I say again that it is a difficult and sensitive matter. These are substantial issues and require closer examination than they have so far received during the passage of the Bill and at such a late stage in its proceedings. I should like to consider what has been said. I cannot give the noble Baroness any undertakings at this stage, for the reasons I have given, to alter so many different facets of the law on sexual offences. However, I should like to give greater consideration to what has been said.
Lord Harris of Greenwich: I welcome the noble Earl's remarks. If he is prepared to look at the matter, that will give many of us a sense of gratification. But I am bound to say that I find it extremely difficult to see how an amendment on these lines can be resisted, given the presence in the Bill of Clause 139.
I understand the Government's difficulty. They would no doubt prefer to introduce a sexual offences Bill. Clause 139 is in the Bill because the Long Title was as broad as it was. The Table Office in the House of Commons accepted Mrs. Currie's amendments and other amendments to the Bill for their debate. The fact that we are discussing this issue therefore is due to the Government's Long Title. That being so, we should look at the question on its merits.
I find it immensely difficult to see how the principle behind the amendment can be resisted, given the clearly expressed decision of the House of Commons in the matter and the decision at which we arrived only an hour or so ago in relation to homosexual offences. I repeat that I welcome the fact that the noble Earl will look at the matter. No doubt many of us will wish to raise the matter again if he is unable to come forward with any proposal at Report stage.
Earl Ferrers: I can understand that. However, the noble Lord, Lord Harris, will recall that he and others —he is not alone in this—criticised the Government for taking decisions too quickly without enough thought and consideration. Yet here we are in June making major alterations to the law regarding sexual offences.

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With respect to the noble Lord, because another place decided to alter the age of homosexual consent from 21 to 18—which your Lordships confirmed this evening —does not necessarily affect what happens in regard to the consensual agreement to heterosexual buggery. The two do not necessarily go together.
I shall certainly consider what has been said. But I do not want the noble Lord, Lord Harris of Greenwich, to think that I shall therefore come up with a wonderful answer in a few weeks' time which will solve all the problems. They go much deeper than one simple amendment.
9 p.m.
Lord Harris of Greenwich: There is always a temptation to repeat one's own excellent arguments on this point and I shall do my best to avoid falling into that trap. However, the fact of the matter is that, given the decision the Committee has taken on Clause 139 and the decision taken by the House of Commons by a substantial majority in the same direction, it is an absolute absurdity to keep this offence on the statute book, particularly when it attracts a penalty of life imprisonment.
Lord Annan: I hope that the noble Earl will feel able to take this on a little further. It is an absurdity in the face of the very forceful arguments, as the noble Earl has been so good in saying, put forward by the noble Baroness. I took it that what he meant by that was that the argument is incapable of being controverted, but that he did not know whether he could swing it at the next stage of the Bill. We understand that there are difficulties which the Government might face; but I very much hope that he will be able to take it a little further.
Baroness Mallalieu: I am grateful for the support from noble Lords on all sides of the Committee and also for the limited encouragement which the noble Earl has given. I was troubled to hear him say that he thought that consideration of this proposal so far as concerns the first amendment might require more time than the passage of the Bill to the stage of Royal Assent would allow. When the noble Earl has had time to consider what has been said, I hope that that will not prove to be the case. For tonight I would propose to ask for the leave of the Committee to withdraw the amendment; but I make it clear that I shall return to it at the Report stage if the noble Earl does not have proposals of his own in relation to this and the subsequent amendment to bring before the House. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 164CB and 164CD not moved.]
[Amendment No. 164CE had been withdrawn From the Marshalled List.]
Clause 140 [Extension of Sexual Offences Act 1967 to the armed forces and merchant navy]:
Lord Boardman Lord Boardman moved Amendment No. 164CF:
Page 113, line 20, at beginning insert:
("( ) The provisions of this section are subject to subsection (5A) below.").
The noble Lord said: I am in a perhaps happy position of moving an amendment the principle of
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which I believe has the support of most of the Committee. In effect it says that homosexual conduct in the Armed Services and in the Merchant Navy—to condense my speech I shall not refer specifically to the Merchant Navy—will continue to be a ground for administrative discharge. Unfortunately, I have been unable to persuade the Government as to how this can best be done. To avoid misunderstanding, it is probably necessary and helpful if I briefly run through the procedure which exists at the present time.
Under the Sexual Offences Act 1967 homosexual conduct in private if someone is over 21 is not an offence. However, Section 1(5) says that subsection (1),
"shall not prevent an act from toeing an offence (other than a civil offence) under any provision of the Army Act 1955, the Air Force Act 1955 or the Naval Discipline Act 1957".
So the exemptions for homosexual conduct being an offence which were extended to private individuals in the 1967 Act were never extended to the Armed Services.
In 1992 the Select Committee on the Armed Forces made a recommendation that the criminal law for members of the Armed Forces and the Merchant Navy should be changed so as to be the same as for civilians. In accepting that, the Minister then responsible said:
"It is not intended to alter the present disciplinary climate of service life".
The result is that since 1992 this has not made any difference to the administrative discharge procedure which had previously been adopted; but nor have mere been any criminal prosecutions. It may be helpful if I quote from what the Minister of State in another place said on 12th April 1994:
"Since then"—
referring to the Select Committee report—
"we have not been prosecuting in such circumstances It remains our policy, however, that homosexual activity is not compatible with the special conditions under which service personnel live and work. Service personnel found to be homosexual or who engage in homosexual activity will continue to be discharged from the services".—[Official Report, Commons, 12/4/94; col. 170.]
I agree, and that is what I am intending, by this amendment, to put on the face of the Bill.
We should address three questions in looking at the amendment. The first is whether the Armed Forces should continue to be able to discharge service personnel who are homosexual and those who engage in homosexual activities. I do not think there is any doubt there, bearing in mind the. Minister's statement that I have just read out, and I do not believe that there will be any argument from the Front Bench that that should not remain so. Homosexual conduct in the Armed Services is completely incompatible with working in service conditions and service life. The question is: how do we do it? One way would be to provide that Clause 140 should not stand part and thus keep the law as it is today whereby homosexual practices in the armed services are an offence which could lead to prosecution but preserving the right to have administrative discharge. However, I think that the pass on that has already been sold. The Government have accepted decriminalisation.
So what can we do? What I suggest we do is precisely what I am seeking to do in the amendment —to make it clear on the face of the Bill that although

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this is no longer a criminal offence, it is conduct for which service personnel can be administratively discharged. Unless that is done and put clearly on the face of the Bill, then the first time that an administrative discharge is brought about after the criminal aspect has been repealed there will be a massive lobby saying in effect, "You cannot by Act of Parliament say such conduct is legal and then discharge a person for it. If you meant to do that you should have made it clear in the Act that such a change was not to affect the administrative powers to discharge." I am asking that it be made clear on the face of the Bill.
I accept that powers of administrative discharge relate to a great many causes, events and attitudes which are perfectly legal. A man can be administratively discharged for all sorts of things; I imagine that he can be discharged for having flat feet. But what is the difference here? We are repealing a section which says that this matter is a criminal offence. We are saying that it is no longer a criminal offence. We have never had a section of an Act saying that having flat feet is a criminal offence. We are repealing the provision with no reservation or qualification of the Bill itself.
It is reckoned that administrative powers of discharge can be exercised. That may or may not succeed when it is challenged, as I believe it will be, in the courts and perhaps in Europe. Somehow the matter will be challenged. I believe that the Government will have a difficult task to explain why—particularly if they reject this amendment—they were never prepared to put this provision on the face of the Bill. Did they really mean that they intended to go on with administrative discharges when they were not even prepared to say so on the face of the Bill?
I ask the Committee to recognise the problems that would exist. Why not say precisely what is intended; namely, that service personnel can be discharged for homosexual conduct but that they will not be prosecuted in the courts for such conduct? I believe that that is what my noble friend on the Front Bench wants to achieve. So why not be prepared to say so? If that is done, then everyone knows the position. It can be included in the terms of engagement for service personnel. It may well be said that that would create a precedent. I hope it would. It is time (is it not?) when we mean something to be put in an Act of Parliament that we say so. We should not leave it for people such as noble Lords or judges to try to interpret what is meant. We should say so clearly on the face of the Bill. We are not in any way adding to the obligations of the Government. The provision is saying specifically what I believe my noble friend wants to achieve.
There is one other point I wish to raise relating to the constitution. I have been irritated, as other noble Lords may have been, by the media challenging our right to make changes to the Bill. We in this House have a particular right to challenge parts of the Bill, nowhere more so than as regards the part now being debated. A very large proportion of Members of this House are of an age and maturity that means we served in the Armed Forces. In 1967, when the Bill was passed, the Armed
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Services were exempted from the freedom for homosexual conduct given to private individuals. That is a section which it is now sought to repeal.
At that time, being closer to the war years, a very large proportion of the Members of that House had experience of the Armed Forces. No doubt for that reason they welcomed the exclusion of the Armed Forces from the freedom given elsewhere. Through no fault of theirs, today in the other place there are very few honourable Members who have had the experience which many of us in this House have had or who can be aware of the difficulties of service life such as those of discipline which would arise if homosexual conduct was allowed to go unchallenged.
We should look particularly at what happened as regards Clause 140. That was introduced by an Opposition Back-Bencher at Third Reading at 12.45 a.m. It has never been debated in the other place.
A noble Lord: Good heavens!
Lord Boardman: That is how this clause came in. It was 12.45 a.m. at Third Reading and here we are expected not to challenge it. There was only one question asked. That was whether anyone who was dismissed because of the change proposed to the Bill would be entitled to receive large damages from the European Court. The question was no doubt asked being mindful of what had happened in the case of the pregnant mums. That was the one question asked and it was not answered. I am sure that my noble friend would have a happy answer to it. Even so, it shows the cursory examination which this matter was given. Not only do we have a right but a duty in this House to challenge and examine this clause. I hope that, based on the collective experience of your Lordships to make amendments, we shall support the amendment I have tabled on what I believe to be a matter of the greatest importance: discipline and good conduct in Her Majesty's forces. I beg to move.
Baroness David: In view of what the noble Lord has just said, may I ask whether he would agree that some people were quite right to challenge Clause 138, which was brought in at about the same time of night by Dame Jill Knight?
Lord Boardman: I am sorry. I did not follow the noble Baroness's question. Perhaps she could put it again and I shall try to answer it.
Baroness David: Dame Jill Knight brought in an amendment—about midnight, I think—which is now Clause 138 of the Bill. It was about the use of foetuses, ovaries and so on. I presume the noble Lord would have supported this Committee in opposing and questioning that.
Lord Boardman: I have not considered Clause 138, nor have I read the debate on that clause. I really cannot answer the noble Baroness's question.
9.15 p.m.
Lady Saltoun of Abernethy: I should like to support the Motion that Clause 140 should not stand part of the Bill. Some months ago I had a letter from a neighbour in Scotland, who said:
"As a practising Christian and father of teenage children, I am totally opposed to this. When I was a teenager I was a Merchant Navy cadet and was constantly exposed to sexual harassment by homosexuals on board ships, railway stations, etc. Every day we read in the media of sexual harassment and the seduction of young boys by homosexual teachers, clergymen, youth leaders, etc. Lowering the age of consent from 21 to 18 will only put our children further at risk".
When young people are in a closed community, as happens in the Navy or the merchant navy on board ship, or in an army barracks or camp, or on an RAF station, they are much more vulnerable to unwanted attentions of this kind, particularly from persons senior to them in rank, than they would probably be in civilian life, although one can envisage situations in civilian life where this would not be the case. I shall not go into details of why I think it is important that they should be afforded a degree of protection. The noble Baroness, Lady Young, did all that for me in her splendid speech on the last group of amendments, but I think that protection for young members of the Armed Forces is very important.
Lord Craig of Radley: I support the amendment of the noble Lord, Lord Boardman. Some may choose to argue that it is not in the best interests of the Armed Forces to set themselves apart from the social and moral values which become fashionable and by and large acceptable, and legally so, in contemporary society. Indeed, if the services are not in step on such issues it is incumbent upon them to be able to defend their stance with the force of logic and with a conviction based on far more than mere emotion or prejudice. On these sensitive and highly charged issues we must try to follow such guidelines.
The Armed Forces do not lend themselves to the concept of freedom from discrimination. I am not referring to ethnic discrimination, as will become clear. For very good service reasons we discriminate against, for example, some human handicaps and disadvantages. We insist on certain minimum standards for eyesight, for hearing and for height. We require, depending on the field of employment, special capabilities, motor skills and intellectual attainments. It is thus not reasonable to insist, when it comes to sexual proclivity, a very human condition, that it is wrong for the Armed Forces to discriminate or that it is wrong for them not to adopt the perceived contemporary civilian norm.
The services, for sound operational reasons, can find no place, for example, within their ranks for the physically handicapped, the poorly sighted or the hard of hearing—gunners of maturer years perhaps apart. We judge these discriminations against the operational and other needs of the services. Obviously we must have fit and healthy men and women of courage and commitment to carry out a whole range of demanding and stressful activities, including conflict. Similar tests must surely be made on the issue we are addressing now. To the argument that it is not fair to discriminate
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against homosexuals, all I would say is that if it is in the services' interests to discriminate, the law of the land and of the European Union should not stand in the way of such discrimination. It is and it should remain lawful for the services to be selective and restrictive in this area. I believe that over the years the services have, as with drugs and infidelity, dealt with these human issues in a sensitive and practical way. Cohesion and trust between individuals of a service unit or platoon are the bedrock of fighting capability, team spirit and morale. We cannot afford gratuitously to jeopardise these fundamental requirements of a fighting force. Decriminalisation of some aspects of homosexual activity per se is not the key issue for the services.
I therefore support the noble Lord, Lord Boardman, because I am anxious to go as far as possible to ensure that what is current service practice in this area is given the force of law. As I understand it, while supporting the legality of administrative discharge, this amendment would in no way weaken the current ability of the Armed Forces to deal with any offence outside the parameters of age, consent and privacy as a criminal act, just as it would be seen and dealt with elsewhere. Secondly, a service disciplinary offence, which may include a homosexual act, may still be dealt with as such if it is likely, for example, to be conduct prejudicial to good order and service discipline. The clearer this position can be made in legislation, as well as to the individual servicemen when they sign up, the better.
Finally, am I right in my concern that we no longer have complete confidence that European law may not one day attempt to rule that discharge on the grounds of homosexuality is discriminatory and illegal, and that this could apply whether discharge was by court martial or administratively and, even worse, be made retrospective and/or liable to compensation? The amendment tabled by the noble Lord, Lord Boardman, may not successfully deal with that eventuality but it strongly sets out to support existing practice. It puts down a firm marker and is thus better than the Bill's present approach, which does nothing positive to protect the services' essential requirement to remove a practising homosexual. I strongly support the amendment.
Lord Vivian: I rise wholeheartedly to support my noble friend Lord Boardman in tabling these amendments. It is worth reminding the Committee that in the early hours of the morning at the end of the Report stage in another place an honourable member tabled the repeal of Section 1(5) of the Sexual Offences Act 1967, thus, if passed, allowing homosexual acts in the Armed Forces. It was accepted with no public debate and without a vote. I therefore believe that we should debate fully the amendments that are now before us.
I understand that Her Majesty's Government have not opposed the repeal of that part of the Sexual Offences Act 1967 which relates to homosexual acts in the Armed Forces because it is deemed prudent to narrow the gap between civil and military law. The Government have stated that in 1991–92 the Select Committee on the Armed Forces Bill 1991 considered the regulations dealing with homosexuality in the

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Armed Forces and recommended that homosexual activity that is legal in civilian life should not in itself be an offence under military law. However, it has been and still is—and I very much hope that it will continue to be —Ministry of Defence policy that homosexuality is incompatible with service life.
Although in the Armed Forces Acts there is no specific service offence of homosexuality as such, offenders can be charged under provisions dealing with disgraceful conduct of an indecent kind, or conduct prejudicial to good order and military discipline, or possibly but very rarely, scandalous conduct by officers.
However, those formal military charges are seldom used. Normally, administrative discharge procedures are taken to release a homosexual from the services when required. That course is less damaging to an offender's future career than formal charges being preferred with an ensuing court martial.
The Ministry of Defence currently has no plans to change that policy. But once the bedrock of the law is removed from the Armed Forces Act by the repeal of the Sexual Offences Act 1967, before your Lordships in this Bill, the case to sustain administrative discharge for homosexuals will become very weak. It will be so weak that I believe that the intense and strong lobbying which can be expected from a large homosexual community will attempt to do away with the administrative discharge procedure if it is not backed up by law.
Until now, the services have not been particularly concerned that homosexual acts in the Armed Forces might become legal, because the administrative discharge system exists to remove homosexuals from the Armed Forces. At present, it has no reason to doubt that that system will continue. I believe that if it had been aware of what I have just said about the likely removal of the administrative discharge procedure, all three services would be very anxious about homosexual acts in the Armed Forces being made legal by the repeal of the Sexual Offences Act. The amendment now before the Committee should ensure that the administrative discharge procedure becomes law and thus will enable it to continue.
It has become well recognised through the ages that the Armed Forces require a special code of discipline backed by sound military law from which stem the high standards of integrity, loyalty, honour and morals which this country rightly expects from its services.
Like many other noble Lords, I have convened, reviewed and promulgated courts-martial proceedings, and have reviewed and confirmed administrative discharges as and when necessary. I believe that the Select Committee on the Armed Forces Bill 1991 made an unwise recommendation when it proposed that because homosexual activity is legal in civilian life, it should be legal also in the Armed Forces. It would have been far better if it had left matters as they stood and had not raised the issue for public debate.
I should now like to concentrate upon why homosexual activities are incompatible with service life. Members of the Armed Forces are often required to serve in conditions in which, both on and off duty, they are unavoidably living in closed communities,
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sometimes under stress. Such conditions and the need for absolute trust and confidence between all ranks—an essential ingredient for successful operations—require that the potentially disruptive influence of homosexual practices should be excluded.
Homosexuality causes offence, polarises relation-ships, undermines military discipline and, as a consequence, damages morale and unit effectiveness. It can lead also to bullying—a serious matter which the services have been trying to stamp out. Above all, it is necessary to ensure that those in authority over younger or junior men do not use their position to coerce or persuade those in their charge to perform acts in which they would not otherwise engage.
As a general question, we should ask ourselves whether we should be happy to allow our children or grandchildren to enlist into an organisation within its own confined environment in which homosexual acts are legally permitted. I believe that all parents would be extremely unhappy with that situation, and it could well lead to difficulties with regard to recruitment.
Homosexual acts can lead also to the contraction of AIDS. If servicemen catch that disease, they are liable to be discharged from the Armed Forces. With the recent draconian cuts to services force levels, even one loss of that nature cannot really be afforded. The likelihood of servicemen contracting AIDS would be much reduced if Clauses 140 and 141 were amended in the proposed way.
My noble friend the Minister has informed me that the Bill confers no entitlement to compensation for services personnel administratively discharged by reasons of homosexual activity. However, if Clauses 140 and 141 are allowed to pass unamended, and as they stand in the Bill, anyone who might be discharged in the future could argue that discharge for a legalised activity cannot be sustained and that all service orders and MoD regulations should be changed to reflect the primary legislation. In this instance, I believe that those people would claim for large sums of money in compensation.
All those factors imply that if we wish to keep our Armed Services with the high traditional standards of discipline, honour, loyalty, integrity and morals, I have no doubt at all that Clauses 140 and 141 should be changed in accordance with the amendments tabled by my noble friend Lord Boardman. I strongly urge noble Lords to give him their full support.
9.30 p.m.
Lord Monkswell: I did not intend to intervene in the debate. However, the previous two speakers have almost forced me to do so. The last speaker talked in terms of situations in which we would be happy for our children and grandchildren to be involved. He spoke about the possibility of homosexuals being members of the Armed Forces. I believe that we can all accept that the first experiences that most people in public schools get of homosexual activity is effectively in public schools.
Noble Lords: Oh!
Lord Monkswell: I am sorry, that was not terribly well presented grammatically speaking. However,

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perhaps I may put it this way. The homosexual experiences that have been the experience of most Members of this place who have had homosexual experiences will arise from their attendance at public schools.
Noble Lords: Oh!
Lord Monkswell: Is the previous speaker saying that in order to protect our children and grandchildren we should actually stop them going to public schools? If he said that, I would welcome the idea for different reasons.
Before the previous speaker made that point—which, I must admit, I found rather bizarre—what concerned me was the contribution of the noble and gallant Lord, Lord Craig of Radley. He talked about the employment or the involvement of disabled people in the Armed Forces in the context of homosexuals being members of those forces. To start with, the concept of equating disability with homosexuality is, I believe, a little perverse, if one can use that rather curious expression.
However, the point that I should like to make to Members of the Committee and especially to the noble and gallant Lord is as follows. We have only to think of one the most heroic figures from the Second World War, Douglas Bader who was an air ace, a hero and very well respected member of the Armed Forces. What was his situation? He was legless; in other words he was disabled. But, by the reckoning of the noble and gallant Lord, Lord Craig of Radley, he should not have been a member of the Armed Forces because it is not right that a member of those forces should have any infirmity of eyesight, of height or, indeed, of hearing unless he is a gunner.
Lord Craig of Radley: I should just like to point out to the noble Lord that his referring to Douglas Bader as incapacitated after he had already learnt to fly and was a very skilful pilot is not quite fair.
Lord Monkswell: That exactly makes the point. How can one define someone as ineligible to be a member of the Armed Forces if he or she has some disability? By the reckoning of the noble and gallant Lord, Lord Craig of Radley, it appears that gunners can be deaf but every other member of the Armed Forces must be sound of wind, limb, eyesight and hearing. We know from our own practical experience that that is not necessarily true. I put it to the Committee that to think that members of the homosexual community are ineligible to be members of the Armed Forces is a palpable nonsense.
Lord Clifford of Chudleigh: I totally support—
Noble Lords: Lord Campbell of Alloway!
Lord Campbell of Alloway: I thank the noble Lord for giving way. I shall be brief. I wish to support this amendment which assumes that Clauses 140 and 141 stand part of the Bill. I agree with the noble and gallant Lord that it should be lawful for the services to remain selective. I agree with the sentiments expressed by my noble friend Lord Vivian, but I wish to try to allay one of his concerns, if I may, in a moment.
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It simply is not possible—Members of the Committee have touched upon this—to predict the course or the nature of our future domestic legislation. It simply is not possible to do so for that of the European Community which is supranational, or indeed to predict the course of the decisions from Strasbourg on the Convention on Human Rights where there is no principle of precedent. So surely it is understood that the Government may wish—as it has been put—to close the gap between the civil and the military law, and that they may be unwilling to accept this amendment which I and other Members of the Committee have supported, having regard to what they see as a plethora of imponderables.
However, if my noble friend the Minister were able to give firm and satisfactory assurances from the Dispatch Box that to maintain discipline in our Armed Forces and merchant ships, the current practice of administrative discharge for various types of conduct will remain in place, and that the types of conduct relevant to administrative discharge will be fully explained on enlistment, that could conceivably be acceptable to the Committee because such assurances, as a matter of law—I come to the point of my noble friend Lord Vivian—in any proceedings would serve as an aid to clarification and interpretation of this clause in the UK, in Strasbourg or at Luxembourg. That is because the substance of the amendment of my noble friend Lord Boardman would be subsumed. Since the stain of criminality would be removed, the gap would be closed without in practice putting the maintenance of discipline at hazard.
For my part, as I have said frankly to my noble friend the Minister, for the reasons fully explained by my noble friend Lord Boardman, I believe that the Government are mistaken in not having an amendment along these lines on the face of the Bill. I shall not weary the Committee with my reasons because I have given them to my noble friend the Minister.
However, I accept reluctantly that the distinction in law between the effect of the amendment or an amendment along these lines and such assurances as could be given, although real and of substance, could be not so great when put to the acid test in proceedings, which is what is worrying some Members of the Committee.
There are two aspects which are requisite. The terms of enlistment—which is the contract of employment —should explain not only the process of administrative discharge, on which there is crude entitlement but no compensation but also the full nature of all types of conduct relevant to that process. If that is done, at least there would be a measure of security. I accept that it is preferable that that should be put on the face of the Bill as proposed in the amendment, which I still support. However, there is a distinction which, depending on such assurances as are given, the Committee may be prepared to accept.
Lord Clifford of Chudleigh: I am very pleased that the noble Lord, Lord Boardman, has produced the

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amendment. I am even more pleased that I follow my noble friend Lord Craig, who spoke so well on this subject.
In this so-called civilised society legislation has been enacted to eliminate discrimination and to encourage responsible behaviour. But where individuals fail in their responsibility to society there is an increasing tendency to attribute that to some broader social cause —to freedom of choice or, dare I say to the Minister, failure of government. That individual freedom has led to a decline in both individual and corporate responsibility, to an erosion of respect for the law. The promotion of individual rights has contributed to an ambivalent attitude towards an individual's responsibil-ity to society.
The aim of military service is to foster group cohesion, a decisive factor in countering terrorism and in battle conditions. Today we have more soldiers on active service duty than we had at the height of the Cold War in, say, 1989. In a group of young, robust, heterosexual people that cohesive factor can easily disappear where there is a loss of trust and confidence in those who lead or operate alongside you in warlike and stressful conditions. If the proposed legislation were to be approved, there would be an adverse effect on the efficiency of the Armed Forces. It would be detrimental to their role.
When joining the Armed Services, where operational duties are a likely possibility, self-sacrifice for one's fellow servicemen is accepted. That accepted code requires self-discipline. To arrive at that position, the Armed Forces insist on a more exacting code of discipline. Clauses 140 and 141 deliberately undermine such a code.
The Ministry of Defence accepts that servicemen and women are subject to both criminal law, applicable to civilians, and military law, which makes certain subjects an offence which may not be so in civilian life. Let us not fool ourselves. Servicemen have leave; they can walk out of barracks, but they have to return by a certain hour. The soldier leaves the barrack gates and automatically is in civvy street; he is subject to civilian law. He can put on an earring. He can be subject to taking drugs. Should Clauses 139 to 141 become effective he can be free to indulge in anal intercourse without fear of being discharged when he returns to barracks at 0800 the following morning.
We have heard, and I reiterate it, of appeals to the European Court. As a result of being rendered ineffective and not fighting fit through pregnancy, certain females serving within the Armed Services have lost their jobs. Subsequently they have been paid thousands of pounds in compensation. Next we shall see girls who join the Armed Services using pregnancy as an excuse to gain a quick buck, if noble Lords will excuse the expression. However, a far more frightening scenario may present itself should Clauses 140 and 141 be accepted. Soldiers infected by AIDS resulting from anal intercourse, whose blood is a river for that lethal, debilitating disease of AIDS, might cut themselves during training, going over an assault course, and subject all their fellow soldiers to the risk of infection
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and to losing their careers. They would naturally claim compensation for the loss of their livelihood. Those servicemen could be "called out" at a moment's notice for a national or international emergency.
In the four years until 1993 a total of 22 army court martial cases related to homosexuality and 296 service personnel were administratively discharged, of whom 50 per cent. were women. "Administrative action", for noble Lords' information if they do not already know it, may be taken where an officer or another rank receives a civil or a military conviction, whereupon the officer must resign and the soldier will be discharged. Shall we not encourage favouritism, lack of trust—that essential bond in the Armed Forces—if Clauses 140 and 141 remain part of the criminal justice Bill?
I wish to quote from The Military Ethos, the Ministry of Defence Discipline and Standards Paper dated 21st August 1993, which states:
"Homosexuality, male or female, is incompatible with military service because of the close physical conditions in which soldiers often have to live and work. Homosexual behaviour can cause offence, polarise relationships, induce violence, and as a consequence morale and unit effectiveness suffer. Anyone who admits to, displays the orientation of, or indulges in homosexuality will be required to resign or be discharged. Homosexuality which is illegal under civil law or which has aggravating disciplinary features may also lead to prosecution".
Ideally, we all wish to live in peace, to love another, whether a person be of the same or the opposite sex. I recognise and would applaud males and females who may live together helpfully, in harmony. But I abhor the unnatural physical homoerotic relationships that add increasingly to a society physically diseased. Through lack of standards and self-discipline, those relationships lead our society to the same fate as its despotic predecessors, the mighty Greek and the powerful Roman empires, to crumble under the influence of sexually disorientated bureaucrats.
In truth, procreation is a God-given natural gift, the result of normal intercourse. The elected Members in the other place—I understand that in Her Majesty's Cabinet no member has ever been in the Armed Forces —should take note of a statement made by this year's winner of the Templeton prize. He said:
"Unfaithfulness to truth destroys dignity".
I shall add, "and destroys mankind". I support the amendment.
Lord Mottistone: The Army and the Air Force have had their say. Perhaps I may put in a few words on behalf of the Navy.
It is my practical experience of buggery occurring in warships that—and I am happy to say not in warships for which I was directly responsible, but indirectly—it is the most desperate situation when it occurs, even in the biggest of ships. It is a canker in the midst of a ship's company of people working closely together. It is desperate. It is extremely important that it should not be allowed to spread, and one has to deal with it good and fast.
This is not the time to say how desperate it is for the young sailors who are suborned by the older ones, those who were the subject of earlier debates—and that is why I did not speak then—but, by God!, that is terrible too. It is a terrible thing in a sea-going armed service,

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particularly because people are thrown together for long periods of time. That would apply equally to those in merchant ships, which are the subject of other amendments and which I also support.
For that reason, I very much support the amendment of my noble friend Lord Boardman; but I see it as a fallback position on getting rid of Clauses 140 and 141 altogether. It is dreadful to think that another place let them slip in when no one was looking. God knows what the Government were doing when that happened! I think they ought to be castigated and someone ought to resign. It is terrible to allow this canker to come into the Armed Forces. Look what happened in the United States! Silly little Mr. Clinton said that he would let in the queers, and he was quickly told not to do it.
Lord Harris of Greenwich: Is it really appropriate to make an attack on a foreign head of state with whom this country has the closest relationship? It seems to me highly questionable whether that is in accordance with the general way in which we conduct our business in this House.
Lord Mottistone: I am sure that the noble Lord is pompously correct. Let us return to the subject: whether we allow Clauses 140 and 141, which we are debating together, to remain part of the Bill. I implore Members of the Committee not to leave those clauses in the Bill. That would be the best course. I entirely agree with my noble friend Lord Boardman and other Members of the Committee. The trouble is that, whatever happens, if Clauses 140 and 141 remain, even if my noble friend's amendment is accepted, the provisions will be squeezed out by some hideous legislation from Europe or somewhere, possibly by a government who are not so determined to make sure that the Armed Forces are efficient. Therefore, we could find ourselves very hampered if we allowed the clauses to remain in the Bill. I therefore plead with the Committee as a first step to support my noble friend's amendment so that we have that in the Bill anyhow, and then, when it comes to voting on whether the clauses stand part, to vote them out.
Lord Aldington: I should just like to ask my noble friend one short question. What is it that has changed since 1967, when some of us were here, the Bill was debated and the settlement was agreed? It was agreed on the basis of the decriminalisation of homosexual acts, subject to age and the matters about which we have talked, and on the basis that that would not apply to the Armed Services. It would not apply to the Services in the sense that on the face of the Bill there was a specific reference to the powers of the Services through the Army Act, the Navy Act and the Air Force Act to keep this as an offence. What has happened since then?
If something important has happened since then, why was it that Her Majesty's Government did not move an alteration of the law? Why did they have to wait until 12.45 one morning in the other place, when an honourable gentleman who speaks on home affairs for the Liberal Democrats moved an amendment which the Government at once accepted, with the extraordinary proposition that it is wrong that the Services should
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have offences which are not civil offences? How did we fight in the war on that basis? It does not matter whether it was the Navy, the Army or the Air Force; looking back 50 years, we were together for six years, the same group of people. How could we have had the sort of situation that is now proposed in the Army and kept the high spirits and high efficiency of that time? Whether it was the Air Force, the Army or the Navy, that would have applied. To decriminalise demoralises in this sense. I beseech the noble Lord, whose grandfather was present when we discussed this matter in the famous debates in 1966–67, to tell us what has changed since those days.
Viscount Mountgarret: I wonder whether I might follow my noble friend Lord Mottistone in what he said. I entirely agree with him, and my noble friend Lord Boardman, except in just one area. I have to say that I do not think that it is quite right to refer to heads of state, on whom we depend so much, in quite such a way on this sort of matter. I am sorry to have heard him speak in that way.
I am getting just a little bit muddled here. So far as I can see, nobody has raised the matter of allowing Wrens on to naval ships. I think that to permit that was a most extraordinary decision on the part of their Lordships in the Admiralty.
Noble Lords: Not relevant!
Viscount Mountgarret: The result has been that it would appear to be incorrect and indeed a disciplinary offence for sailors to fraternise with Wrens; but here we are suggesting that it would be perfectly all right for sailors to fraternise with one another. That seems to me to be rather odd. I would rather have sailors fraternising with Wrens than sailors fraternising with sailors. I entirely support my noble friend's amendment.
Lord Ashbourne: Perhaps I might remind the Committee that in the 1950s, long before I had the honour of being introduced into this Chamber, the late Lord Montgomery of Alamein, whenever the subject was being discussed, used to paint a picture of an aircraft carrier. In those days, as the Committee will appreciate, feelings and sentiments in the country at large about homosexuality were not the same as they are today. We seem to have slipped a long way down a rather desultory slope. The late Field Marshal used to say: "Imagine an aircraft carrier, a tin box, floating around in the Pacific Ocean with 3,000 men locked up inside it, if homosexuality were legalised". In those days, everybody realised that it would be a farcical situation and could not be tolerated.
Lest the Committee should think that I am digging too deeply into the past, yesterday by good fortune I had the opportunity to speak to a senior officer at present serving in one of our aircraft carriers. He told me the interesting statistic that the average age of personnel in the aircraft carrier in which he was serving was 21.7 years. The ship's company was very young. I said to the officer, "What will happen if homosexuality is legalised in the forces down to the age of 18?" He was appalled at the thought because obviously it would be legalised for a large proportion of the ship's company.

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I tell the Committee those two anecdotal stories merely to try to show that in the balance of the past and present there is a strong move against homosexuality in the forces. The argument was made most effectively by the noble and gallant Lord, Lord Craig, with all the authority that he brings to the matter as a former Chief of the Defence Staff. I therefore urge the Committee to oppose the Questions that Clauses 140 and 141 stand part of the Bill.
Lord Forbes: I support the amendment of my noble friend Lord Boardman. As one who sets value on moral standards and the Christian faith, I deplore the continual lowering of standards that is taking place. Very often it goes on under the guise of progress.
We are now engulfed by the tide of permissive times, which I believe has brought about many of our troubles and indeed has led to the spread of AIDS. The one bastion and pillar of strength for upholding standards is our Armed Forces. But now, not only is that priceless national asset being eroded by cuts in the Armed Forces but, by Clauses 140 and 141, the Government themselves are condoning the lowering of standards in the services.
If we believe in standards we should call a halt to the lowering of standards, especially in the Armed Forces. I support the amendment and urge the Committee to vote so that Clauses 140 and 141 do not stand part of the Bill.
The Earl of Balfour: I feel very strongly that this Chamber must never allow any legislation to pass which may appear to weaken the discipline and morale of the Armed Forces and our merchant navy.
When I was a merchant navy officer any sexual fraternisation of any kind, male or female, was forbidden. Therefore, I hope that Clauses 140 and 141 do not stand part of the Bill. I should like to add that what the noble Lady, Lady Saltoun, said about young people going to sea is perfectly correct. It is possible for a person to go into the merchant navy as soon as he reaches school-leaving age. If either Clause 140 or Clause 141 stand part of the Bill, I very much hope that the amendment of my noble friend Lord Boardman is accepted.
The Parliamentary Under-Secretary of State, Ministry of Defence (Viscount Cranborne:) Perhaps the Committee will allow me to intervene at this stage. I am well aware from the number of Members who are still anxious to speak that the Committee would like to pursue the debate on this subject. I have been listening with keen attention to what has been said during these important exchanges. I hope that I am not being unfair when I say that I descry a number of assertions, particularly by several of my noble friends, on which I believe I can reassure them. It may help the remainder of the evening's proceedings if I put the Government's position as clearly as I am able. Therefore, with the Committee's permission, I should like to intervene now.
I recognise fully the anxiety of my noble friend Lord Boardman in this important matter. The amendment proposed to Clause 140 is designed to make it perfectly
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clear that the repeal of Sections 1(5) and 2 of the Sexual Offences Act 1967 and corresponding provisions for Scotland, will not prevent the continued discharge of homosexuals from the Armed Forces and the Merchant Navy. I listened particularly keenly to Members' strictures in this matter. As my noble friend pointed out, there is probably a higher proportion of experienced noble Lords in this Chamber—I say immediately that I use the word "experienced" in the sense of their having served in the Armed Forces—particularly compared with the denizens of another place. And I want to make it perfectly clear at the outset that in relation to the Armed Forces the Government entirely agree with the aims implicit in the amendment of my noble friend. But Her Majesty's Government are equally clear that the amendments are not needed in order to achieve that aim. Perhaps the Committee will allow me to explain why.
My noble friend Lord Aldington asked what has changed. I can reassure my noble friend and a number of other Members who spoke—particularly the noble and gallant Lord, Lord Craig, to whom the Committee rightly listens with keen attention, particularly on military matters—in respect of the Government's fundamental position. It is perhaps worth restating it. It derives from our clear acceptance two years ago of two recommendations by a Select Committee in another place—something which my noble friend Lord Boardman recognised during the course of his introduction. The first recommendation endorsed the long-standing policy that homosexuality is incompatible with service life. The Select Committee said clearly that the time had not yet come to require the Armed Forces to accept homosexuals or homosexual activity.
I can reassure my noble friend Lord Mountgarret that, although we agree with that, we would go further. I would add that we do not foresee any time when homosexual activity in the Armed Forces would be considered acceptable. I say to the noble and gallant Lord, Lord Craig, and to my noble friend Lord Vivian that it remains the view of the Government that the special conditions of service life preclude the acceptance of homosexuals and homosexual behaviour. As my noble friends repeatedly pointed out, service people must live in close proximity to others in single sex accommodation. At times they have to work under enormous stress and in close physical contact with their colleagues. As many Members of the Committee pointed out during the course of the debate, those factors and the need for absolute trust and confidence—a point specifically made by my noble friend Lord Vivian— within and between all ranks make the circumstances quite different from those in civilian life.
We are aware of the responsibility we have for the many young people who join the services—again a point made by many Members during the course of the debate. We have a clear responsibility to these young people and to their parents which would be undermined by accepting homosexual behaviour in the forces.
The second Select Committee recommendation was that homosexuality of a kind which is legal in civilian law should not constitute a criminal offence under service law. We consulted the three services with very considerable care and we decided that we could accept

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that recommendation as well. Accordingly, my honourable friend the Minister of State for Defence Procurement, as long ago as June 1992, announced that in another place. He announced that Section 1(5) of the Sexual Offences Act 1967 would be repealed as soon as the legislative programme allowed. Indeed, I gave a similar undertaking to the noble Lord, Lord Williams of Elvel, in this very Chamber as long ago as 1993.I refer noble Lords to Hansard of 9th July last year.
In the meantime, service personnel, it was announced, would not normally be prosecuted if the homosexual act would have been legal in civilian life. My honourable friend's announcement was generally welcomed in another place. So when Clauses 140 and 141 were introduced in another place as amendments to the Bill before us the Government supported them in view of the fact that they were entirely consistent with announced government policy. The question of whether they were sneaked through has to be seen in that context. The amendments were down. They were considered; and they were considered not only by Her Majesty's Government but also by Members of another place. Therefore, the clauses are the means of enacting the 1992 announcement in respect of homosexuality in the Armed Forces and a subsequent similar announcement about the Merchant Navy. It is on that basis that I commend them to the Committee.
I think it is worth setting out again our basic position. Homosexual activity will no more be tolerated in the Armed Forces of the future than it is today or indeed has been in the past. But we do not normally intend to prosecute participants in such activity in cases where the activity would have been legal in civilian law. I have said that it has been the policy of the past two years not to initiate such prosecutions. In fact, it seems on closer research that this has been the general practice for rather longer even than that. In the period between 1987 and 1990 335 members of the services were required to leave because of homosexuality. Of those, 296 were discharged as a result of administrative action—that is to say, by the means we are using today and will use in the future to discharge homosexuals—and only 39 were dismissed as a result of a conviction under the service discipline Acts; in other words, about 10 per year. I understand that this relatively small number of convictions was mainly in respect of offences which the services would still intend to prosecute under criminal law, and if the Committee will allow me, I shall come back to that point in a few minutes.
I should particularly like to address myself to the noble Lord, Lord Campbell of Alloway. He made an extremely valuable contribution to our debate. In order to remove any doubts on the point I should like to emphasise that the repeal which we are considering does not prevent the services from prosecuting when there has been an offence under civilian law; for instance, where there has been no consent; where one of the participants is under lawful age; where the activity has not been carried out in private; or, in addition, where, because of the circumstances surrounding the hom-osexual act, a service offence has been committed—for example (I say this to the noble Lady, Lady Saltoun) —abuse of rank or otherwise legal sexual activity
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aboard one of Her Majesty's ships. Indeed, we would prosecute heterosexuals in those circumstances. In this respect there will be no change.
I should also like to stress, for the purposes of clarification, that we shall continue with the current policy and indeed the current practice that those who engage in homosexual activity will be discharged from the services. Normally, unless they have been convicted in the circumstances I have just described, they will be administratively discharged. Administrative discharge, as many Members of the Committee with more experience of the services will know, is used as the means of dispensing with the services of several hundred personnel each year, for a variety of reasons connected with the individual's unsuitability for continued service. It is not a novel weapon in the services' armoury of management devices. It is the way in which we have released the great majority of male homosexuals and lesbians for some years now; and it is the means by which we shall continue to do so.
I have laid emphasis on the continuity between past practice and policy and I believe it right that I have done so. It is indeed the practice and policy we shall be adopting in the future. I can therefore commend Clauses 140 and 141 not as legislative shots in the dark, or as some sort of experiment which Parliament is about to foist on three nervously apprehensive Armed Services. We are proposing to bring the law into line with practice, which the services have found to be perfectly workable. Therefore, it is worth considering that this is perhaps not a great new legislative initiative, but a very minor device indeed to bring these two matters into line.
I am conscious of the time, but perhaps I can now turn to the specifics of the amendment of my noble friend Lord Boardman. As I have already said, of course I welcome the intention behind the amendment. I understand clearly that it is to underpin the services' policy on the discharge of homosexuals. Therefore, I am sorry that I must question the Committee on whether it is the right device for doing that; namely, to put the intention on the face of the Bill, as my noble friend suggested.
I believe it is clear that the amendment has to do with the employment relationship between the services and individual members of the Armed Forces. It is seeking to confirm at the same time the services' ability, which I believe derives from prerogative powers, to determine what constitutes grounds for discharge. It is in fact introducing a new concept into the criminal justice Bill which is concerned here with the disciplinary framework of the forces. I suspect that to confuse the disciplinary framework with the employment relation-ship is of itself undesirable and introduces a confusion.
I shall explain a little further what I mean by that. Clauses 140 and 141 concern service discipline—the military equivalent, one might say, of criminal justice and therefore within the scope of the present Bill. On the other hand, my noble friend's amendment is talking about discharge and that is a process which has nothing to do with service discipline. It is an administrative process for releasing unsuitable individuals and a quite separate process from the machinery of service discipline.

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It is important that the two aspects should not become intertwined. Again, I apologise for taking up the time of the Committee, but I want to explain why I find it very difficult to accept my noble friend's amendment, much as I would like to do so. We do not want to be put into a position where every time in the future we create or abolish a military offence we would be expected to express a view in the statute—"on the face of the Bill", to use my noble friend's phrase—as regards the effect on employment relationships. I believe I am right in saying—and I say with due diffidence before so many distinguished lawyers—that never before have the two aspects been linked in service disciplinary legislation. We believe that it is a persuasive reason not to set a precedent now. I hope that, in particular, my noble friend will agree.
If that is not argument enough, perhaps I may also suggest to my noble friend that his amendment could perhaps have even the opposite effect of what he intends. The linkage that I have described could just conceivably lead to a future situation which I believe my noble friend and I would wish to avoid; namely, where our present freedom to determine what is tolerable behaviour and what behaviour gives grounds for discharge might be impaired. Because of that freedom we do not need the amendment to enable us to continue with the present policy.
As if I needed to reiterate it, that policy is that homosexual activity is incompatible with service life and that homosexuals will therefore be required to leave the services. In terms of interpretation, the repeal of Section 15 of the Sexual Offences Act 1967 will be interpreted as just that and will not be read across to have implications for the employment relationship. Therefore I would suggest that we do not need the amendment. Perhaps if I may be impertinent to my noble friend, he is pushing at a door which is already fully open. I hope that that encapsulates reasonably clearly what our position is, and I hope that it gives some satisfaction to my noble friend.
However, with the permission of the Committee, I should like to mention two other points which have been raised and on which perhaps I can give some assistance and help, in particular to my noble friends. The noble and gallant Lord, Lord Craig, and my noble friend Lord Boardman were worried about possible European law which might oblige the Ministry of Defence to retain homosexuals in the Armed Forces. I cannot guarantee that the present position will remain because, as your Lordships know, there is no European directive actually in place at present which requires such a course of action. If there should be a change along the lines which my noble friend and the noble and gallant Lord have suggested, without any derogation for the British Armed Forces, we would have to recognise that, just as in the case of pregnant women, European law would override the terms of any domestic legislation on the matter, whatever intended safeguards the amendment might incorporate and indeed whether or not the law carried criminal penalties in terms of British law. There are a number of other matters which your Lordships have raised, but I hope I have said enough to convince my
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noble friend that he and I are ad idem on our objectives although we may perhaps differ a little as to the most effective way of achieving what we want.
With your Lordships' permission, I should like to cover briefly the merchant navy aspects. My noble friend Lord Orr-Ewing has expressed considerable reservations about certain clauses. The clauses here, and in particular Clause 141, provide that members of the merchant navy should cease to be subject to any special and additional criminal liability for homosexual acts on British merchant ships. The decision to decriminalise homosexual acts by repealing Section 2 of the Sexual Offences Act 1967 was announced in a Written Answer in another place last December. We believe that the clauses here achieve the purpose which was announced then and, as in the case of the Armed Forces, also amend the equivalent Scottish and Northern Irish legislation.
The basis of the decision was essentially to bring the merchant navy into line with the Armed Forces. The fact that the provision appears to have been used very little in the merchant navy is some encouragement to us. The shipping industry, including the unions, had been widely consulted before the announcement was made, and the general consensus within the shipping industry was clearly in favour of repeal. Again I look to my noble friend Lord Aldington when I say that unlike in 1967, the seamen's union—now the RMT —is now clearly in favour of repeal. The Department of Transport is taking steps, in consultation with employers and unions in the shipping industry, to amend the code of conduct for the merchant navy. The effect of these amendments will be to make it an offence against the code to demand or solicit sexual favours from another member of the crew or to make unwelcome sexual advances to another member of the crew. Such offences, which will apply equally to heterosexual and homosexual conduct, will be subject to the industrial disciplinary sanctions provided for in the code of conduct.
My noble friend's amendment seeks—
The Earl of Balfour: Would my noble friend forgive me for asking a question? In respect of ships, the expression has been used of a homosexual act being carried out in private. I would not like two people to engage in a sexual act in a locked cabin on board a ship, if I may put it like that. I should not like that sort of thing to take place.
Viscount Cranborne: I wholly understand what my noble friend says. For that reason we have taken a great deal of trouble over the code of conduct and have had it agreed with the British shipping industry in particular. It has expressed itself wholly satisfied with the code of conduct.
I wish once again to appeal to my noble friend. We want to achieve the same aim. At the same time, technical reasons, which I have endeavoured to explain perhaps at excessive length, make it difficult to accept the amendment, much as I would like to. He and I are ad idem about this. I am advised that it is unnecessary to put the provision on the face of the Bill. I wish also to point out that, under agreements and contracts, the Merchant Navy has sufficient powers of dismissal to meet the points raised by my noble friend.

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I am sorry to have to tell my noble friend Lord Orr-Ewing that the amendments are not acceptable to the Government, whose policy to seek the repeal of Section 2 of the 1967 Act was announced last December. I hope that my noble friends will feel able to consider a while the effects of sending the Bill back to another place should they press the Division and persuade the Committee to accept their view rather than that of Her Majesty's Government.
Lord Boardman: I am grateful to my noble friend. I must disappoint him by telling him that, while our objectives remain the same, he has not convinced me that I can let the matter pass. I have had tremendous backing from a great deal of military force. I refer to the noble and gallant Lord the former Chief of Defence Staff and the noble and gallant Lord, Lord Bramall, who had hoped to be here tonight. He had to leave earlier for a Lord Lieutenancy engagement but authorised me to say that he was fully supportive of my amendment. I have also had support from other Members of the Committee who have a great deal of military experience; for instance, the noble Lords, Lord Vivian, Lord Mottistone, Lord Aldington, and so on. They all agree that as the Bill now stands it gives the wrong message to our Armed Forces. I find it impossible to accept that.
My noble friend Lord Campbell suggested that a Statement from the Minister might help to alleviate the position. That cannot be so unless the Bill on the face of it is misleading. Noble and learned Lords will correct me if I am wrong but I understand that reference to Hansard or to Statements can be made only if the Bill is considered to be ambiguous. There is no ambiguity in the clause as it stands.
Perhaps I may remind the Committee of what Clause 140 seeks to repeal. It is:
"Subsection (1) of this section",
that is the section of the 1967 Act which makes homosexual conduct legal if in private and over 21,
"shall not prevent an act from being an offence (other than a civil offence) under any provision of the Army Act 1955, the Air Force Act 1955 or the Naval Discipline Act 1957".
The clause seeks to repeal that measure and to provide that those acts shall no longer be offences. I accept fully my noble friend's remark that it is the intention of the Government to ensure that military discipline continues as in the past. However, it cannot be sustained against the challenge to come unless we put on the face of the Bill the words suggested in the amendment. They make it clear that military discipline will be maintained notwithstanding the repeal of that section.
I have not tabled a similar amendment to Clause 141. I hope that at a later stage of the Bill we can deal with that clause in the same way as we can now deal with Clause 140. I also understand that the amendment is grouped with the Motion to oppose that Clause 140 shall stand part of the Bill. If, as I hope, this amendment is agreed to, I believe that that will meet the objectives of those noble Lords who wish to oppose that Motion. I believe it should be made absolutely clear on the face of the Bill that military discipline and the requirements of
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the services shall in no way be prejudiced. I have received a great deal of support, and, therefore, I wish to seek the opinion of the Committee.
10.30 p.m.
On Question, Whether the said amendment (No. 164CF) shall be agreed to?
Their Lordships divided: Contents, 82; Not-Contents, 61.

Division No.3

CONTENTS

Ackner, L.

Hanson, L.

Aldington, L.

Harlech, L.

Ashbourne, L.

Harmsworth, L.

Astor of Hever, L.

Harrowby, E.

Balfour, E.

HolmPatrick, L.

Belhaven and Stenton, L.

Jeffreys, L.

Beloff, L. [Teller]

Kimball, L.

Boardman, L. [Teller]

Lindsey and Abingdon, E.

Brabazon of Tara, L.

Liverpool, E.

Bridgeman, V.

Lucas of Chilworth, L.

Brightman, L.

Monckton of Brenchley, V.

Brigstocke, B.

Monson, L.

Brougham and Vaux, L.

Mottistone, L.

Burnham, L.

Mountgarret, V.

Cadman, L.

Moyne, L.

Caldecote, V.

Murton of Lindisfarne, L.

Carr of Hadley, L.

Norfolk, D.

Clanwilliam, E.

O'Cathain, B.

Clark of Kempston, L.

Orr-Ewing, L.

Clifford of Chudleigh, L.

Palmer, L.

Clitheroe, L.

Park of Monmouth, B.

Coleridge, L.

Pearson of Rannoch, L.

Colnbrook, L.

Reading, M.

Courtown, E.

Renton, L.

Craig of Radley, L.

Robertson of Oakridge, L.

Craigmyle, L.

Rodney, L.

Cross, V.

Saint Oswald, L

Cullen of Ashbourne, L.

Saltoun of Abernethy, Ly.

Dean of Harptree, L.

Sharples, B.

Denham, L.

Stanley of Alderley, L.

Dixon-Smith, L.

Stedman, B.

Donegall, M.

Strange, B.

Downshire, M.

Swaythling, L.

Eden of Winton, L.

Tebbit, L.

Elton, L.

Torrington, V.

Faithfull, B.

Vivian, L.

Forbes, L.

Wade of Chorlton, L.

Gisborough, L.

Waverley, V.

Glenarthur, L.

Wharton, B.

Gray, L.

Wynford, L.

Hamilton of Dalzell, L.

Young, B.

NOT-CONTENTS

Addington, L.

Gray of Contin, L.

Addison, V.

Grey, E.

Annaly, L.

Harris of Greenwich, L.

Astor, V.

Henley, L.

Avebury, L.

Hooper, B.

Carmichael of Kelvingrove, L.

Howe, E.

Chalker of Wallasey, B.

Jay of Paddington, B.

Cocks of Hartcliffe, L.

Jeger, B.

Cranborne, V.

Kilbracken, L.

Cumberlege, B.

Lawrence, L.

Darcy (de Knayth), B.

Long, V.

Dean of Beswick, L.

Lucas, L.

Denton of Wakefield, B.

Lyell, L.

Desai, L.

Mackay of Ardbrecknish, L.

Eatwell, L.

Mackie of Benshie, L.

Ennals, L.

Masham of Ilton, B.

Ewing of Kirkford, L.

Monkswell, L.

Falkland, V.

Morns of Castle Morris, L.

Ferrers, E.

Mountevans, L.

Flather, B.

Pender, L.

Gilmour of Craigmillar, L.

Ponsonby of Shulbrede, L.

Goschen, V.

Rea, L.

Gould of Potternewton, B.

Redesdale, L.

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Rix, L.

Teviot, L.

Rodger of Earlsferry, L.

Trumpington, B.

Seear, B.

Tugendhat, L.

St. Davids, V.

Ullswater. V. [Teller.]

Stewartby, L.

Wakeham, L. [Lord Privy Seal.]

Strathclyde, L.

Wigoder, L.

Strathmore and Kinghorne, E.

Williams of Elvel, L.

[Teller.]

Williams of Mostyn, L.

Resolved in the affirmative, and amendment agreed to accordingly.
10.38 p.m.
Lord Orr-Ewing Lord Orr-Ewing had given notice of his intention to move Amendment No. 164CFA:
Page 113, line 24, leave out subsection (3).
The noble Lord said: I do not intend to move the amendment as it has already been dealt with by the Minister.
[Amendment No. 164CFA not moved.]
[Amendment No. 164CFB not moved.]
Lord Boardman Lord Boardman moved Amendment No. 164CG:
Page 113, line 30, at end insert:
("(5A) Nothing contained in this section shall limit or affect the right of the competent authority administratively to discharge any person serving in H.M. forces or on merchant ships who, but for this section, would have been guilty of a criminal offence.").
On Question, amendment agreed to.
Clause 140, as amended, agreed to.
Clause 141 [Homosexuality on merchant ships and in the armed forces: Northern Ireland]:
[Amendment No. 164CH not moved.]
Clause 141 agreed to.
Lord McColl of Dulwich Lord McColl of Dulwich moved Amendment No. 164D:
After Clause 141, insert the following new clause:
(Promotion of tobacco products
Publication of advertisements for tobacco products.
.—(1) Subject to subsection (2) and section (Defences in proceedings under section (Publication of advertisements for tobacco products)) below, if any person publishes or causes to be published an advertisement for a tobacco product, he shall be guilty of an offence.
(2) Subsection (1) above does not apply to the publication of an advertisement inside a shop used for the retail sale of tobacco products if the advertisement is not capable of communicating directly with persons outside the shop and—

(a) the shop is used wholly or mainly for the retail sale of such products; or

(b) the advertisement—

(i) contains only information as to the price of tobacco products, a warning of the damage to health caused by the use of tobacco products and such other information as the Secretary of State may prescribe by regulations made by statutory instrument; and

(ii) complies with such other requirements as may be so prescribed;

and in relation to any case where only part of a shop is used for the sale of tobacco products or access to a shop ("the inner shop") can only be obtained by passing through another shop, references in this subsection to the shop shall be taken as references to that part or, as the case may be, to the inner shop.

(3) A person guilty of an offence under this section is liable—

(a) on summary conviction to a fine not exceeding level 5 on the standard scale or to imprisonment for a term not exceeding six months or to both; or

(b) on conviction on indictment to a fine or to imprisonment for a term not exceeding two years or to both.

(4) In this section and sections (Defences in proceedings under section (Publication of advertisements for tobacco products)) to (Power to prohibit or restrict promotion of smoking or tobacco)
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below "tobacco product" means a product made wholly or partly of tobacco for the purpose of being smoked, sniffed, sucked, chewed or otherwise used orally or nasally.
(5) In this section an "advertisement for a tobacco product" includes any form of communication which might reasonably be considered to promote the smoking or other use of a tobacco product or of tobacco products in general, whether directly or indirectly, other than a communication made by means of the packaging of such a product in a quantity available for retail sale.
(6) In determining for the purposes of subsection (5) above whether a communication might reasonably be considered to promote the smoking or other use of a tobacco product or of tobacco products in general, whether directly or indirectly, regard shall be had to all relevant considerations and, in particular, whether—

(a) the name of, or of the producer, supplier or sponsor of, the product, service or event the promotion of which is the ostensible purpose of the advertisement is the same as or similar to the name of, or of a person engaged in the business of manufacturing or otherwise dealing with, a tobacco product; and

(b) any word, sign, symbol, picture or other feature which appears in the advertisement or any use of a colour or combination of colours in the advertisement is the same as or similar to any word, sign, symbol, picture or other feature or any use of a colour or combination of colours which is associated with a tobacco product.

(7) A statutory instrument containing regulations under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.").
The noble Lord said: In moving this amendment I wish to speak also to Amendments Nos. 164E to G, 178ZB, 178ZF, 179A and 180A. These amendments are designed to help prevent the uptake of smoking by children. When we debate the advertising of tobacco we must remember that tobacco is still responsible for about one-quarter of all the premature deaths in Britain. Each year almost 50,000 people in their sixties, their fifties, their forties and even in their thirties are killed by tobacco in Britain alone. That is about 1,000 premature deaths each week and these premature deaths from tobacco involve on average the loss of 20 years of life.
Several thousand different chemicals are found in cigarette smoke, 43 of which are known to cause cancer in humans. As the smoke goes into the mouth, throat, lungs and bloodstream these chemicals go all around the body, causing a great variety of different diseases, including cancers of the mouth, throat, larynx, bladder and lungs, chronic bronchitis, emphysema and important diseases of the arteries, including heart attacks, strokes and gangrene of the limbs. Overall, about half of all regular cigarette smokers will eventually be killed by their habit, one-quarter being killed before they reach the age of 70 and one-quarter being killed later on.
Professor Sir Leslie Turnberg, the President of the Royal College of Physicians, informs me that since 1962, when the college produced its first report on the dangers of smoking, over 4 million people have died in the UK because of diseases caused by smoking. This epidemic requires serious attention.
Some have claimed that we have the best record in Europe for reducing tobacco consumption but that does not mean much when one considers how far we are behind the best records in the world set by Canada, New Zealand and Australia. I am sure we all acknowledge the progress that has been made in reducing smoking by the efforts of parents, teachers, doctors, nurses, scientists, and in particular the Royal College of Physicians and by

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the Government who have set ambitious targets for reducing the percentage of smokers from the current level of 28 per cent. today to a target of 20 per cent. in the year 2000. It is pleasing to note that many of the Government's targets are on course.
The problem is that we are failing to reduce smoking rates among children. The target of the Department of Health was to reduce smoking rates among 11 to 15 year-olds by one-third from 1988 to 1994, but there is no prospect of this being achieved. There has been no significant change in children's smoking rates for the past 10 years. Some 24 per cent. of 15 year-olds were smoking in 1982 and the figure for 1992 is virtually the same.
The problem is that the strategies which have proved effective in encouraging adults to give up smoking, such as price increases, education campaigns and restrictions on smoking in various workplaces, do not seem to be having the desired effect in reducing children's smoking rates.
The child who begins to smoke before the age of 15 is 18 times more likely to die of cancer of the lung compared with someone who has never smoked. However, it is worth pointing out that those who begin to smoke after the age of 25 are only five times more likely to die of lung cancer than non-smokers. So, if the uptake of smoking cannot be prevented altogether but delayed until adulthood, the incidence of lung cancer will be significantly reduced. It is important to emphasise that eight out of 10 regular adult smokers now start smoking before they are 16 years old. If they continue smoking throughout their lifetime half will be killed by diseases due to tobacco. What an appalling waste! We have no moral or practical alternative but to implement a ban both on tobacco advertising and on tobacco promotion in order to provide reasonable protection for our children.
I realise that we are up against the great battalions of the tobacco industry, but that should not deter us from looking carefully at the facts. Smoking causes death, and advertising encourages smoking. To pretend otherwise is absurd. Some have argued that advertising does not affect teenage smoking rates. That is untrue. The Royal Society, our most eminent scientific society, is in no doubt. Last week it issued a message of support saying:
"Tobacco advertising and related sponsorship are significant factors encouraging children to smoke, and the Royal Society welcomes steps which address this issue".
The president of the Royal College of Surgeons, Sir Norman Browse, said last week:
"A ban on tobacco advertising and related sponsorship would be a significant advance in the continuing campaign to achieve a reduction in smoking, a major cause of serious illness and premature death".
There is not one eminent medical or scientific society which does not support that initiative.
There is good evidence that a ban on tobacco advertising leads to a reduction in children's smoking. Not only is there a substantial body of peer reviewed scientific research; there is real-life experience in countries where bans have been enacted. Twenty years ago in Norway tobacco advertising and sponsorship was banned and within a few years the smoking rates among
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Norwegian 15 year-olds fell substantially. Advertising bans have been assessed in three other countries: New Zealand, Canada and Finland. The conclusion of our own Department of Health's review of all four countries indicates a significant fall in smoking which cannot reasonably be attributed to other factors.
When we brief the jury in a British murder trial we ask it to decide whether there is proof beyond reasonable doubt who caused the death. What is appropriate for one death is appropriate for thousands of deaths. We have proof beyond reasonable doubt that tobacco advertising promotes and maintains sales and encourages the uptake of smoking by children.
Many object to the ban on tobacco advertising as an infringement of freedom, and many believe that anything which is freely sold should be freely advertised. In this country we have had a ban on the advertising of cigarettes on television since 1965. We have accepted that because tobacco is so dangerous its commercial advertising and promotion should be limited. The argument that if it is legal to sell it should be legal to advertise was rejected in 1965. Moreover, it is not legal to sell tobacco products to children. There is ample evidence that children see tobacco advertise-ments and they respond to them.
If we are talking about freedom, why cannot we demand that our children be free from the constant bombardment of seductive advertising? It leads so many of them into smoking and premature death—death 20 years before their time.
Successive governments have bowed to pressure from many different sources to proceed carefully and slowly before introducing further bans. We have progressed very slowly indeed and if we now introduce a total ban after a mere 30 years of delay and 4 million unnecessary deaths, we cannot be accused of doing anything in a hurry.
A recent survey indicated that half of all smokers said, "Smoking can't be really dangerous or the Government would ban cigarette advertising". The Secretary of State for Health has said that her department's expert review of the effect of tobacco advertising on tobacco consumption, known as the Smee Report, found that,
"tobacco advertising does affect total tobacco consumption, not just brand share".
She stated that,
"further restrictions up to and including a ban could be expected to reduce smoking".
If this measure reduced tobacco consumption by only 1 per cent., it would in time prevent a thousand premature deaths per year.
The noble Lord, Lord Parkinson, has said:
"I wish tobacco advertising was banned—I think it is an absolute pest. It has only two supporters, the tobacco industry and the Treasury, both of whom benefit enormously from the sales of tobacco but I think it is a curse and I would like to see it discouraged and would welcome a ban on advertising".
I believe that several Members of the Cabinet share his view.
Many hundreds of organisations—medical, health, Church, community organisations, the National Consumer Council, the Royal Colleges, the Imperial Cancer Research Fund, the British Heart Foundation

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and the Royal Society itself—are making a special plea that the Committee should agree to the amendment. I beg to move.
Lord Rea: The noble Lord, my professional friend, Lord McColl, has outlined the overwhelming scientific evidence of the harm to health which can be caused by smoking. That is now even recognised by the tobacco industry, even if it tries to minimise the harm. Recently a new firm, The Ethical Tobacco Co, has started to market a brand of cigarettes called "Death" in a black packet, and "Death Lights" in a white packet. A recent full page advertisement in a number of newspapers states this to smokers:
"If you are honest with yourself, you will have to admit that you already smoke death cigarettes. They just happen to be called something else".
I understand that the major tobacco companies prevented that firm from advertising its products on billboard sites in the United Kingdom. I wonder why.
It has been said that as smokers choose to smoke products with a health warning on the packet, it is their fault it they suffer. But that argument ignores the fact that tobacco is highly addictive. Its attraction is that nicotine, its active ingredient, not only calms anxiety, making stress more tolerable, but also acts as a mild stimulus to mental function—a fairly unique combina-tion since most addictive substances which calm anxiety slow up mental activity. I refer to alcohol, marijuana, opiates and cocaine, although perhaps not cocaine because it stimulates but does not calm.
On giving up smoking, people feel stress even more acutely than before. Smoking provides an emotional shelter. Giving it up leaves a confirmed smoker feeling exposed, vulnerable and often very irritable. I do not have to describe how difficult it is to give up; many Members of the Committee will have experienced it for themselves or will have friends or relatives who tried many times to give it up before they finally succeeded. Many do not succeed.
This addictive quality, as much as its harm to health, is another strong reason, I submit, for banning tobacco advertising. The Catholic Church, it is said, claims that if it has a recruit by the age of seven it has him for life. If we add a decade, we could say the same for the tobacco industry. Most confirmed adult smokers started well before the age of 20.
As my noble friend said—and in this case he is my noble friend—23 per cent. of 15 year-olds smoke regularly an average of 50 cigarettes a week. Children notice advertising more acutely than adults. The industry knows it and slants its message to them. But selling tobacco products to children is illegal. In so far as advertising affects children—and it does—tobacco advertising is already promoting an illegal product.
Mrs. Virginia Bottomley said in another place on 20th July 1990, when answering a debate on health promotion:
"There can be little doubt that if cigarettes were introduced today, their production and sale would probably be banned".— [Official Report, Commons, 20/7/90; col. 1340.]
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The amendment does not attempt to do that; it merely prohibits the advertising and promotion of tobacco products.
Dr. Clive Smee's report, referred to by the noble Lord, Lord McColl, showed that banning tobacco advertising in other countries led to a reduction in smoking of from 4 per cent. to 9 per cent. when accompanied by appropriate health messages. But even if no immediate effect had been demonstrated, does the Committee not think that it is irresponsible to allow the continued promotion of a highly addictive substance which is also a slow but extremely dangerous poison?
The recent voluntary agreement with the tobacco industry, to which the noble Baroness will doubtless refer, moves billboard advertisements a little further away—200 yards —from schools and makes them a little smaller. But as with previous voluntary agreements, I submit that this is a pathetically weak response to the major public health problem of our time.
Lord Glenarthur: I listened with great care to my noble friend Lord McColl and the noble Lord, Lord Rea. I have the utmost admiration for my noble friend in his work as a surgeon: he is noted for his ability in a number of different fields. I am aware that the noble Lord, Lord Rea, is also a doctor and that he speaks from great personal experience of the difficulties caused to many of his patients, no doubt by smoking. I hope that both will forgive me if I say that I find this series of amendments to the Bill about as bizarre—I think that is not too strong a word—as any I have heard over the years in your Lordships' House.
The Bill with which we are dealing is concerned with a number of serious matters connected with the criminal law and public order; everything from secure training orders to rape, sexual offences and prevention of terrorism—a whole raft of different subjects. It deals with a number of issues which are widely regarded not only as offensive but also as dangerous, and a number that are already subject to penalties under the law.
The noble Lord, Lord Rea, referred to the sale of tobacco to those under 16 as being illegal. Yes, it is. But smoking is not illegal. I therefore have to say to my noble friend that I find it quite extraordinary that, notwithstanding the strength of feeling that he brings to this subject, he should seek to introduce these amendments which, among other things, create a penalty of up to two years' imprisonment for someone who publishes or causes to be published an advertisement for a tobacco product.
I must declare a set of conflicting interests, and indeed responsibilities. At a personal level, I dislike smoking—a fact that is not unknown to a number of your Lordships, of whom, occasionally, I try to get upwind in various parts of this building. I have been a health Minister twice, and I am fully aware of the Government's wish to reduce smoking, especially among children which, as my noble friend indicated, is the main purport of his amendment. I very much support the efforts that they are making in this direction. And encouraging efforts they are, as my noble friend Lord McColl explained just now. As chairman of St. Mary's Hospital NHS Trust I am, of course, fully aware of the

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importance of educating for a reduction in smoking. But I am also alive to the fact that some members of society, be they patients in hospital or elsewhere, will wish to smoke; and I fervently defend their right to do so if they must. I also work for Hanson plc, which owns Imperial Tobacco. That company employs some 2,500 people and generates in excess of £3 billion—£3,000 million —a year for the Exchequer in both excise duty and VAT.
These responsibilities, both to Imperial Tobacco through Hanson and to St. Mary's, are very real and I take them very seriously. But this evening I have an even greater responsibility as a Member of your Lordships' House to state very plainly my very strong opposition to a series of amendments which at the very least simply do not fit the general tenor of the Bill that is before the Committee. Moreover, as I am sure others will say, the amendments are flawed in a number of practical ways.
During the latter stages in another place of the Tobacco Advertising Bill my honourable friend the Parliamentary Under-Secretary of State for Health announced a number of changes to the voluntary agreement on tobacco advertising. That was as recently as 13th May. The noble Lord, Lord Rea, referred to those amendments. But by saying that they cannot be expected to achieve anything like the sort of improvement that he would like to see is going a bit far. These changes can hardly be said to have stood the test of time. It seems to me wholly unjustified to make the claim that the noble Lord, Lord Rea, has just made so soon after they were announced and that it should be part of an attempt to reintroduce the Bill by what some would judge as being the back door.
As well as those arguments of principle, the amendments introduce another very worrying aspect. There are advertisements for countless everyday activities which, if indulged in carelessly, can give rise to risk. What about motor cars? They are widely used and widely advertised, one type competing for market share with another, as is very much the case with tobacco. Yet they are all potentially lethal to third parties as well as to those who are in them. Is my noble friend to try to ban advertising for cars for those very same reasons? And what about alcohol? We know that alcohol abuse is damaging. But even members of my noble friend's profession are unsure where to draw the line, and the vast majority of us, of course, consume it in a responsible way.
Or coming even nearer to home, to a subject with which my noble friend is involved, what about the pharmaceutical industry? It regularly advertises to the medical profession and to others. Can my noble friend say that all those items which are advertised are wholly safe? What about the very large numbers of Pharmaceuticals advertised over the years which have subsequently been found to be not safe, and in some cases to be lethal? I shall largely leave it to others to point to the weaknesses in my noble friend's arguments, particularly his medical arguments. My own belief is that his anxieties—as seriously as he makes the point
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—are overstated; but he has developed a certain fervour for his cause which I am sure is one to which he will stick.
I end simply by saying that we are all bombarded day in and day out by people who tell us how to live our lives in a more healthy way; and each bombardment is followed by a counter-bombardment, often from within the same profession. Of course we should take my noble friend's remarks seriously in many respects. Of course we should find ways of discouraging smokers. We are already doing so, and the Government have given voice to it. But we certainly should not be party to the kind of heavy-handed, busy-bodying legislation which, frankly, this amendment seeks to introduce, most especially through this Bill.
If the amendment is pressed to a Division, I hope that it is resoundingly defeated. But I hope that my noble friend will be persuaded in due course that the amendments are unsuitable and are out of keeping with the general purpose of the Bill, and that he will be persuaded to withdraw them.
Baroness Seear: I suppose that most, perhaps all, Members of the Committee grew up at a time when nobody had any idea that tobacco smoke was the danger that we now recognise. Therefore it was socially acceptable that we should smoke; and a great many of us smoked a small or large amount with no idea that it carried the health hazards that we now know that it does. If we were starting today from scratch, without that background of smoking as a socially acceptable activity, and with our present knowledge about what smoking does to health, we would find it very interesting to compare the health record of tobacco with the health consequences of drugs which we ban and which we imprison people for taking let alone selling.
I suggest that tobacco smoking does a great deal more harm to health than cannabis. But think of the difference with which we treat the two activities! Because we have been socially conditioned to accept tobacco, we refuse to recognise that it is such a serious hazard. We have to look at it in the light of the knowledge that we now have and not the attitudes with which we grew up when we lacked that knowledge. So I for one very strongly support the amendments put forward by the noble Lord, Lord McColl.
Mention has been made of the loss to the Treasury. I have not done the sums of the cost to the National Health Service of looking after the very large number of people who are ill and have to be hospitalised and given medical treatment because of their response to tobacco advertising. But it must be a very heavy charge indeed. Surely, we are not so "departmentalised" that we cannot put the costs of the National Health Service borne by the Department of Health against the loss to the Treasury of the money that it receives from tobacco advertising.
We need to look at this matter in the light of today's knowledge, given to us by the noble Lord, Lord McColl. It is backed by all the societies that know about the consequences of tobacco to health and the cost to this country in terms of money, lives cut short, consequent

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family bereavements and all the other consequences, which must be clear to anybody who thinks about the matter.
I very much hope that the Committee will look at this issue not with the memories of tobacco as it was known and thought to be so harmless in the days of our youth, but in today's knowledge of the very dangerous drug that it is.
Lord Ennals: I rise to support Amendment No. 164D and also to support the noble Baroness. Of course it will not be the first time. I declare my interest that I too, as was the noble Lord, Lord Glenarthur, was a Minister with some experience and a smoker with much too long an experience. As was hinted by the noble Baroness, I started to smoke when I was a young soldier. At that time no one argued, as we received our free cigarettes, that this was a danger to our health. We learn more about the danger to our health as every year passes. The figure that it is now possible for the noble Lord, Lord McColl, to bring out could not have been quoted 10 or 15 years ago. When I was a Minister 15 years ago the effect of passive smoking on other people was simply not known. So more and more evidence is being brought before us.
We do not need to convince Members of the Committee that smoking is the most dangerous form of addiction. It is very difficult to break the addiction. As one who has broken it, I know just how hard it is.
Lady Saltoun of Abernethy: Perhaps the noble Lord will give way. Does he think that smoking tobacco is more dangerous than taking heroin?
Lord Ennals: I shall answer that. The number of people who die as a result of tobacco addiction is much greater than the number of people who die from heroin addiction. The number of people who have been treated in hospital as a result of smoking-related conditions is much higher than the number of those suffering from heroin-related conditions. But this amendment, as the noble Lord, Lord Glenarthur, suggested, is not about alcohol; it is not about heroin; it is simply about the smoking of tobacco materials.
The only question before us is whether or not advertising encourages smoking. I am sure that all Members of the Committee would wish to see fewer people smoking, fewer youngsters and children picking up the habit so early in life. Because they pick it up early in life, they are much more likely, as the noble Lord, Lord McColl, said, to continue as smokers and become totally addicted to the habit.
When the noble Lord, Lord Glenarthur, revealed his interest, it was a telling factor. Those who most strongly oppose the amendment are in fact in the tobacco industry. There is no question about that. I know the extent of the pressure.
Lord Glenarthur: I hope the noble Lord will allow me to correct him. I declared a series of interests, one of which was that I have a responsibility towards the health service as well. I hope the noble Lord will balance his
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remarks—which I believe will go on to criticise the interests I declared—making that responsibility equal with the others.
Lord Ennals: I am glad that that assurance has been given. Certainly when I was Secretary of State—and I have seen it ever since—the tobacco industry was the most powerful influence and the most powerful lobby in trying to stop what the noble Lord is trying to introduce. If we really thought that stopping advertising would substantially reduce smoking, as it has in other countries which have experimented with this proposition— Norway in particular —we would all support the amendment. We must ask ourselves whether or not it would have that effect.
As I say, the evidence from other countries indicates that it does. This is an amendment which was properly accepted and should be properly debated—it is a long time since this Chamber had the opportunity to do so. I therefore support the amendment and the manner in which it was proposed. It would be a great blow against the rising number of youngsters who smoke. There is something illogical in a situation in which we decide we should ban advertising in the cinemas, but not on the public hoardings. What logic is that? If we ban it from the television, we should ban it across the board. I hope the amendment will be carried.
11.15 p.m.
Baroness O'Cathain: Mention has been made of the freedom of the individual to smoke. What about the freedom of the individual who is physically distressed by the smoking of others? And if we are honest, how many smokers do we know who hate the addiction, who wish they had never started and who try so very hard to give it up? Why did they start?
There are all kinds of reasons but I suggest that two particular advertisements have had a profound effect on the young; the Marlboro man and Virginia Slims. The most distressing statistic that we have seen of late is of the increase in young women who smoke. You have to ask why. One reason has to be the widespread view that smoking keeps you slim. How many of us know people who moan that once they gave up smoking they put on weight? The whole fashion industry is slanted towards the image of the slim, trim and brim full of energy young lady. That was well recognised by Virginia Slims. The Virginia Slims advertising linked cigarette smoking to the young lady who excels at tennis and underlined that point by actually sponsoring tennis.
Those of us who have business experience in marketing know full well that advertising works. The late Lord Leverhulme said that only 50 per cent. of advertising works but the trick was to know which 50 per cent. He never, note, said that 100 per cent. of advertising did not work. If even 50 per cent. of current advertising encourages people to start smoking, we are supporting continuing health problems and untold distress to families who watch their loved ones suffer from strokes, heart disease and cancer. I declare my personal interest. I have experience in my close family

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of all three—all brought about by smoking. The distress that this creates will continue. Why do we allow it? We must support this amendment.
Lord Carr of Hadley: It seems to me that we are in danger of falling into an emotional confusion between ends and means. I am in wholehearted support of the purposes of the amendment. I am not now a smoker myself but I was once. I have done my best to persuade my family of two children—and now grandchildren— not to take it up; and so far with some success although not single-handed in my persuasion of them. However, I think that the argument for this being the right way to achieve our end is, to put it mildly, shallow.
I should have thought that the consumption of unadvertised drugs is rising whereas the consumption among the young of advertised tobacco is at least declining. Therefore, I do not think one can say that getting rid of advertising will automatically lead to a decline. That is a point for argument. All I am saying is that there is no prima facie case for the suggestion.
We need to think about some of the effects. It is very easy—sometimes too easy—to take positions of principle in a free society, but there is all the difference in the world between the control of the amount and the medium of advertising, which has already taken place in tobacco advertising and which personally I strongly support, and actually abolishing it. There is a difference not of degree but of kind and we should be very wary before we embark upon it. It certainly will not stop smoking. It may speed up the decline, which in itself would be a good thing, but people will still be smoking.
What will they be smoking? We ought not to neglect altogether the safety element to the public in any product being supplied by brand names and reputable companies. You cannot support a brand name for any significant amount of time without some sort of advertising. Project yourselves ahead to, say, 10 years from its abolition. People will be smoking. But what sort of cigarettes will they be? With what might they be contaminated? I believe that what will be smoked will be much less safe than what is being smoked already, although that is pretty dangerous, and we should do all we can to discourage people from doing it.
I believe most strongly that intensifying our efforts of education and persuasion, including advertising in that education and persuading, is a better and less dangerous way ahead than just abolishing advertising because that could have side-effects which we do not foresee at the moment and which could be quite unpleasant. We might find that there are very nasty cigarettes indeed being smoked, perhaps in smaller numbers, but causing more deaths.
Lord Avebury: I wonder whether the noble Lord, Lord Carr, has reflected on the fact, as the noble Lord, Lord McColl, said in moving the amendment, that 100 per cent. of the professional organisations involved in looking after people who suffer from the effects of tobacco have made a recommendation that we should pass the amendment. They did not do so without any examination of the evidence. They see the evidence every day in their consulting rooms. If one is asking about statistical evidence, of course there cannot be any
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from Great Britain. We can only look at the evidence from other countries where a total ban on advertising has resulted in some reduction in consumption. Therefore, it is a reasonable assumption if we did the same we should achieve a similar proportionate reduction in the volume of consumption.
If the noble Lord asks what people will then be smoking and whether such substances will be more harmful to them than those being smoked at present, there is a simple answer. You can legislate to require more information to be put on the packs of those cigarettes which are still to be marketed and sold than there is at the moment. For example, I do not know whether there is an obligation for the total nicotine content to be shown on packs. If not, there ought to be. After this amendment is passed, as I hope it will be, let us proceed with the Department of Health in deciding, on the advice of the medical profession, what are the components of tobacco which cause the most harm and how that should be notified to the potential victims on the packs of cigarettes they buy.
I wish to address one of the arguments which the noble Lord, Lord Glenarthur, put to the Committee— that is to say, that this is not the right place to insert an amendment of this sort into a Bill which is concerned with a number of other matters. Of course it is concerned with a lot of other matters; it is concerned with everything except the kitchen sink. In effect what the noble Lord is saying is that if you are walking along a towpath and you see someone drowning, you might not wish to fish him out of the canal because it is the wrong time of day. Someone has advised you that it is a difficult moment to do it.
Here we have an opportunity to rescue many thousands of people. The noble Lord, Lord McColl, gave the figures. He said that a total of 1 million people have been killed. When the noble Lord, Lord Glenarthur, began to speak, he talked about the "difficulties" caused by smoking. What a mealy-mouthed word to use when talking about the assassination of 1 million people by this wicked industry! I do not know how the noble Lord can reconcile the interests he declared. I have a great deal of respect for him. When he was a Minister at the Foreign Office I was very grateful to him for many replies which he gave me which were of mutual interest. But I cannot understand how, at one and the same time, he can be a director of a hospital trust and have a high position with a company which is selling poisonous products to members of the public.
Lord Glenarthur: I cannot let the noble Lord, Lord Avebury, get away with that. The fact is that all of us have many conflicting interests and responsibilities. I went on to say that one of the greater responsibilities which I felt I had was being a legislator in your Lordships' House. It is all very well for the noble Lord to quote an instance which I certainly did not. He referred, for example, to somebody like myself walking along a towpath and choosing whether it was inconvenient, or right or wrong, to go to help somebody who was perhaps drowning. That is way beyond the point. The fact is that my noble friend has introduced an

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amendment dealing with one particular subject— tobacco advertising —in so far as it relates particularly to children. This Bill does not seem to make any mention of a number of other issues, of which I cited three examples, which are also dangerous to some degree. That is why I said I believed that this was a busy-bodying piece of legislation introduced by my noble friend and why I dismiss it in the way that I have.
Lord Avebury: The noble Lord has to reconcile his own conscience with the fact that he is involved in the St. Mary's Hospital Trust and also in Hanson plc. I am quite certain that if he has asked for advice from medical experts at St. Mary's Hospital they will have given him the same recommendation as the professional organisa-tions which the noble Lord, Lord McColl, was talking about earlier. He has had to weigh the advice he has been given by the staff of St. Mary's Hospital Medical Trust with that given by the directors of Hanson plc, and the latter have obviously won. It is as simple as that.
Lord Glenarthur: I am sorry to come back once more. The fact is that there are no doubt a number of doctors at St. Mary's—I know of several—who smoke. I am simply trying to point to the fact that I do not believe that this piece of legislation is the right vehicle for my noble friend to pursue this particular angle. The noble Lord, Lord Avebury, is adding somewhat in a rather clever way to arguments which I certainly did not put forward.
Lord Avebury: The noble Lord, Lord Glenarthur, is setting himself up as a home-made "Table Office" to tell us what we can and cannot put into Bills. If this amendment has been accepted it is a legitimate one, and the noble Lord, Lord McColl, has seized this opportunity which is now available to your Lordships to save very many thousands of lives. That is a perfectly reasonable thing for him to do. I should like to quote from a letter I received from the President of the British Cardiac Society in which he said:
"The House of Lords now has a golden opportunity to make a sensible decision to improve the health of the nation."
He goes on to say that coronary heart disease is Britain's biggest killer and over 20 per cent of such deaths are attributable to smoking. There is no argument about that: the medical evidence is conclusive. It is no good the noble Lord shaking his head. He cannot set himself up as superior to the many tens of thousands of professionals who have been telling us these things for many years and whose advice is accepted even by the Ministry of Health. The right honourable Virginia Bottomley does not quarrel with the statistics of the harm that has been caused by smoking. All she is saying is that we have to approach the reduction of smoking by means other than a ban on advertising. Therefore, let all those other means be pursued but let us add the ban on advertising. Let us take the opportunity this evening, suggested by the British Cardiac Society, of saving many tens of thousands of lives.
Baroness Young: Listening to the noble Lord, Lord Avebury, one is only too conscious that having a debate about smoking generates more heat than light. I very
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much regret that on this occasion I cannot support my noble friend Lord McColl in his amendment. I have admired very much his stand on almost every issue and I am certainly not going to quarrel about the statistics on smoking. The discovery of the link between smoking and cancer came some years ago from a Professor of Physiology at Oxford and I think the evidence is quite clear.
However, in this particular matter I must support the argument that has been put very well by my noble friend Lord Glenarthur. The analogy of the noble Lord, Lord Avebury, about the man walking by the canal is irrelevant. If one were to argue like that one would argue that any piece of legislation considered by your Lordships could be added to because somebody had some idea that we should legislate on a particular issue. We are, after all, a responsible House of Parliament and whether or not one agrees with the principles of this criminal justice Bill it was put forward to meet a very real public concern about law and order in both town and country. Therefore, various provisions within the Bill are put there to deal with that.
Now we have tacked on to the Bill what is a Private Member's Bill in toto. It is brought into this Bill because it has been argued that it is just the opportunity. I am sorry to have to say to my noble friend that this is an abuse of parliamentary time—
Lord Stoddart of Swindon: Absolutely right!
Baroness Young: Thank you very much. Although, as my noble friend Lord Carr said, no one will argue about the dangers of smoking, this Bill is the wrong place to introduce the legislation.
Like the noble Baroness, Lady Seear, when I was young everyone smoked and tried to persuade me to smoke. I tried it and thanks to good fortune I never liked it and never smoked. But almost everyone else certainly did. I have also had cancer so I am well qualified all round to talk on this subject.
The fact is that smoking is not illegal. To legislate to prevent someone from advertising something that is legal—whether one likes it or not—is to run down a very dangerous path. The doctors are always telling us that we should not drink and one might just as well say that for the same reason we should ban the advertising of drink. Members of the Committee might shake their heads but we have only to open a newspaper to read doctors stating that we should not eat butter and so forth. And frequently they change their opinions. I agree that they have not changed their opinions on smoking, but in a democracy it is a very dangerous path to go down. On those grounds too one should be most careful about this piece of legislation.
Lord Mackie of Benshie: Will the noble Baroness say what harm will be done if this amendment is passed?
Baroness Young: The harm is that we shall have tacked into a Bill a provision which does not belong there at all, and that would set a bad example for other pieces of legislation. Secondly, I believe that, as a matter of principle, in a free society if something is not illegal one should be able to advertise it. We have a

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voluntary code. If the noble Lord agrees that anything he believes to be bad for our health should not be advertised when it is not illegal to take, that would be treading on a dangerous path—a rather illiberal one, if I may say so.
Lord Avebury: The noble Baroness continues to say, as did the noble Lord, Lord Glenarthur, that these amendments do not belong in this Bill. But did they not get past the clerks and is it not for them to decide whether amendments fall within the Long Title? If they have so decided, it is of course legitimate for the Committee to pass these amendments and incorporate them in the Bill.
Baroness Young: The procedures of this House are so designed that we can have a great deal of freedom in debate—far more than we would ever have in another place—and therefore we can have a debate such as this today. However, that does not mean to say that I believe it right or particularly helpful. I very much hope that my noble friend Lord McColl will not press his amendment but will withdraw it. He has made his point and we should now leave the matter. He should introduce a Private Member's Bill and ban smoking, if that is what he really believes. I think that that is what those who support the amendment actually believe in but they do not quite have the courage to say so. If that is what my noble friend wants to do he should get on with it.
Baroness Seear: Does the noble Baroness really stand by her statement that anything which is not illegal should be allowed to be advertised? I think I am right in saying that prostitution is not illegal. Would she like to have that advertised?
Baroness Young: I hesitate to enter into a debate on prostitution at this time of night because I am not at all sure what the position is. I am saying that in the case of tobacco, smoking is legal and this measure relates to the banning of something which is legal. If I did not express myself well I apologise to the Committee but that was the point that I was trying to make.
Lord Rea: Members of the Committee may wish to know about the history of the amendment. Perhaps I may recount a conversation that I had with the noble Lord, Lord Weatherill, with all his experience of the other place. He was commiserating with me with regard to the fate of the Private Member's Bill which this amendment incorporates and also the Civil Rights Bill. He said that he did not believe that Private Member's Bills were the right vehicles to use. He said that it would be better to tack the provision onto a piece of legislation passing through Parliament. He instanced the compul-sory seat belt legislation which, in its first year, saved 370 lives and 24,000 casualties. It has continued to provide a major benefit to the health of this country.
This Bill will save far more lives than that. A careful calculation has put the figure between 95,000 and 140,000 over a period.
Lord Dixon-Smith: I had not expected to intervene in the debate this evening, but we have reached an hour at which even my normally politically incorrect thoughts are at the point at which they are about to burst.

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I listened with great care to the arguments advanced by my noble friends Lord McColl and Lord Rea. Indeed, they are most persuasive. I do not believe that anybody in this Chamber would quarrel about the known damage which smoking can cause. But we need to remember that the offence is smoking. It is not advertising but smoking. Therefore, I am afraid that those who have promoted the amendment are at best guilty of intellectual inconsistency; and at worst, they are guilty of something else. I should declare my interest in the matter. It is confined to one box of good cigars smoked over about a 12 month period. I hope that the Committee will reject the amendment.
Baroness Masham of Ilton: I support the amend-ments in the strongest possible way. I hope that your Lordships will not mind if I speak from a personal point of view this evening.
Smoking has always been distasteful to me. As a child, I found that a great many people smoked during the war. My eyes would hurt and I would say how terrible it was. Nobody took any notice. So many children must feel the same today. When I was 18 years-old, I watched my father die of coronary thrombosis. He had been a heavy smoker with a cough. My father died aged 51. There was nothing that we could do.
As your Lordships will know, my noble kinsman, my husband, has smoked cigars for many years. When he developed a cough, I was able to get him off cigarettes. But he has now suffered a stroke and no doubt tobacco has been a contributory factor. A great friend of ours, a past Member of your Lordships' House, had cancer. When our friend left hospital, the first thing that he did was to ring my husband to implore him to give up smoking. He maintained that the tobacco juice from his pipe had run down his throat, contributing to cancer, which has now killed him.
The group which seems to be the most worrying comprises teenage girls and young women. They seem to smoke more than any other group. How can we continue to allow advertising when we know what tobacco does to human beings? Advertising is conducted in a very subtle way. I have no doubt that the argument will be that it is advertising the brand which counts. Whatever it does, it encourages a very dangerous habit which seems to be as addictive as any other dangerous drug. Surely we should do all that we can to discourage, and not promote, such a pastime.
Baroness Trumpington: I am well aware that this is the Committee stage of the Bill. I am well aware also that noble Lords can speak as often as they like and for as long as they like. I just wonder whether your Lordships might like to hear the Minister at this stage. However, I am entirely in your Lordships' hands.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege): The amendments proposed seek to make it a criminal offence to publish any sort of tobacco advertising except at the point of sale. I know that the noble Lords who tabled the amendment are motivated by the desire to reduce smoking and the diseases associated with it.

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Perhaps I may say at the outset that the Government agree wholeheartedly with those objectives and that we are working fully towards them. It is also worth stating that the Government accept that tobacco advertising is one of the many factors which need to be considered in any strategy to reduce smoking—The Health of the Nation White Paper states that quite clearly.
The issue before the Committee is whether the amendments can be justified in terms of their impact on smoking; the restrictions that they would place on a legal product—a point very well put by my noble friend Lord Glenarthur; and the appropriateness of the amendments enacted on the face of the Bill. Those issues were explored very fully and skilfully by my noble friend Lady Young.
We should begin by recognising that Britain has a good record for reducing smoking—the second best in Europe. Only the Netherlands beat us, and of course they too favour a tough but voluntary approach towards controlling advertising. Twenty years ago, 45 per cent. of the UK population smoked; today it is down to 28 per cent. Although that is a good record, it is one which can be improved, as my noble friend Lord McColl said. In The Health of the Nation White Paper, we set out very ambitious targets for reducing smoking—reducing the number of smokers in the population to no more than a fifth by the end of the century.
This Government have always believed that we need to work on a broad front to meet and beat the targets that we have set ourselves. In February, we published our action plan, Smoke Free for Health which set out the essential elements of the Government's approach. They include: action on price; action on parental influence; action on effective health education; action to advise smokers who want to give up; and, lastly, action to control advertising and sponsorship.
We have heard a lot of evidence about the alleged impact that an advertising ban would have on cigarette consumption. I am bound to say that, for us in Britain, none of it is as convincing as the evidence about price and parental influence. Here the facts are clear.
On price, the research evidence shows that a 10 per cent. increase in the cost of tobacco products leads to a cut in smoking of between 3 per cent. and 6 per cent. The Government have an excellent record in that field. Last year alone, the two Budgets led to a 21p increase in a packet of cigarettes. Moreover, the Chancellor of the Exchequer gave a commitment to increase tobacco duties by at least an average of 3 per cent. in real terms in each subsequent Budget. That is unmatched in Europe.
The evidence also shows that children whose parents smoke are two-and-a-half-times more likely themselves to smoke than children of non-smoking parents. Children are seven times less likely to smoke if they perceive strong disapproval from their parents. I agree with my noble friend Lord McColl, we need to do more with 11 to 15 year-olds. However, we have already met the relevant target among children whose parents do not smoke. As we are discussing advertising, perhaps I

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should also mention that I think that the worst form of advertisement is for children to see the adults in their daily lives—that is, parents and teachers—lighting up.
The Government are campaigning to make parents more aware of the damaging influence smoking has on their children. That message features heavily in our £12 million health education campaign which will run over the next three years. The national curriculum now requires children between the ages of seven and 16 to be taught about the harmful effects of smoking. That is excellent news; but the message has to be hammered home at home—both by explanation and by example.
Those who promote the banning of tobacco advertising frequently use the impact on children as one of their main —if not their central—argument. However, the existing voluntary agreement is specifically designed so that tobacco advertising is not directed at young people, either in its content or where it is displayed. For example, heroes of the young are not allowed in tobacco advertisements; no tobacco advertisements are allowed in magazines where more than 25 per cent. of the readership are young women aged between 15 and 24.
The Government believe that it is prudent to build on the strengths of the existing agreement, especially so far as concerns young people. So the new agreement includes, among other things, the removal of all poster advertisements from within a 200-metre radius of school gates; controls on the content of advertisements which might appeal to young people; and a total ban on advertisements on computer games.
The noble Baroness, Lady O'Cathain, and the noble Lord, Lord Ennals, raised the impact that advertising has on those who see it. The Government do not deny that there is a link between advertising and smoking. If we did not believe that to be the case, there would be little point in pursuing the voluntary controls which have served us so well with the industry. If we denied the link, then we would have an unregulated approach —advertisements on television; at the cinema; in children's magazines. That manifestly is not the case, nor has it been for many years.
The point at issue is whether the evidence justifies taking the further step as set out in these amendments —a total ban and the criminalisation of advertising. This is not a small step. It is a major and significant move which raises issues well beyond simple health matters.
The noble Lord, Lord Rea, and my noble friend Lord McColl drew the Committee's attention to the Smee Report, but that evidence shows that an advertising ban cannot be justified. Using data from 30 years ago, the Smee Report shows that the reduction in smoking associated with an advertising ban in the UK would be around 7 per cent. Studies using data from 20 years ago estimated that a ban would reduce smoking by around 3 to 5 per cent. However, the most recent studies, using data up to 1987, failed to find a significant effect on consumption of banning advertising. Of course, unlike the early studies, the most recent ones have taken into account the major reduction in smoking in Britain in the past 20 years, and the effect of increasingly strict voluntary controls on advertising. It leads to the conclusion that the payback on a ban is not justified and,

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what is more, it is not supported by looking at the experience of other countries. My noble friend Lord McColl mentioned the international research which shows that in Norway, Finland, Canada—I think he mentioned Canada—and New Zealand bans on tobacco advertising were followed by falls in smoking. Like my noble friends, supporters of a ban have made much of this fact. They have suggested that it shows that a statutory ban would have a similar effect in the UK. But this is far too simplistic. If we look at the experience in Norway and Finland, the two countries where bans have been in place long enough to make sensible comparisons, we see that there were indeed reductions in smoking after the ban was introduced. But in both cases the reductions achieved in Britain over equivalent periods have been greater. In other words, the UK has a better record in reducing smoking using the broad strategy that we have adopted rather than other countries which have simply introduced an advertising ban.
The noble Baroness, Lady Seear, raised the issue of the costs to the NHS of smoking. They are considerable —£160 million a year—but I agree with her that these costs are as nothing compared with the misery and the suffering of disablement and an early death—a point so well put and poignantly put by the noble Baroness, Lady Masham. And that is why we are committed to reducing consumption by 40 per cent. by the year 2000.
My noble friend Lord Carr raised the interesting argument of the benefits that advertising can have on the purity of branded products. That is an interesting view and one which could well have validity, but I must say that at the moment I do not have the evidence on it. It was a point also pursued by the noble Lord, Lord Avebury, who also urged greater information to consumers of the harmful constituents of cigarettes. Already we require tar and nicotine yields to be shown on cigarette packets. They are also required on advertisements. Furthermore, the Government have been working actively with the tobacco industry over the past 20 years to reduce the tar yield. It has been a highly successful policy. The average tar yield has come down from 21 grammes in 1972 to 13 in 1990. The new legal limit will be 12 grammes from the end of 1997.
I believe that Members on all sides of the Committee want to reduce ill health caused by smoking. But it is clear that what we need is a broad approach, which considers the whole range of influences on smoking. That is the approach that the Government have sought to adopt, and one which has been shown to work. It requires an effort from the whole community—parents, teachers, health professionals, retailers, managers of public places and so on. There is no quick fix to this challenge. But with our combined efforts we can drive smoking rates down and meet our targets.
The amendments before us look only at one aspect of this whole problem and invest it with an importance which is out of all proportion to its possible impact. The amendments represent a narrow approach carried too far. I put it to the Committee that the case for the measures set out in the amendments has simply not been made. I urge the Committee not to support them.
Lord Stoddart of Swindon: There has not yet been a speaker from this side of the Chamber against the amendments, and I think that I should put that matter right.
I very much regret that the amendments have been put down. It is intolerable that we should be discussing such an important issue on the basis of an amendment to a very large Bill at ten minutes before midnight. We should have had a Second Reading, a Committee stage, a Report stage and a Third Reading. We should have had a proper Bill, and not an attempt to hijack a criminal justice Bill in this way.
Having said that, I shall try to deal with some of the issues that have been raised. The noble Lord, Lord McColl, is very concerned about children who smoke. So are we all. However, research shows that advertising has very little to do with encouraging children to start smoking. Peer pressure? Certainly. Parental example? Certainly. But advertising? Certainly not. There is no evidence to show that that is the cause.
The noble Baroness, Lady Cumberlege, dealt with the Smee Report, so I do not need to mention that. However, I shall mention that in Russia they have always had an advertising ban, and they smoke a damn sight more in Russia than we smoke here. That is a point that the Committee may wish to take into consideration.
I received a letter from my noble friend Lord Rea. He is a great chap, except on matters relating to smoking. He tried to persuade me of a great many things. He said that banning tobacco advertising is not the thin end of any wedge. I can assure him that it is the thin end of many a wedge.
I am very concerned about alcohol abuse. I believe that alcohol abuse is the greatest social; evil in this country. It is certainly far worse than smoking. When people drink alcohol in excess they do not simply injure themselves, they injure others, sometimes very badly. People who smoke do not fight outside public houses and knife people to death. They do not go home and beat up their wives and children because they have had a cigarette. But people who drink to excess do exactly that. So when we talk of smokers and advertising bans we should think of drinkers too. Smokers do not go out and kill people on the roads, but people who drink and drive kill many people on the roads.
Lord Mackie of Benshie: Has the noble Lord not heard of the saying "Two wrongs do not make a right"?
Lord Stoddart of Swindon: I was dealing with the thin-end-of-the-wedge argument. I was pointing out that if this proposal sets a precedent for banning substances which people believe are harmful, then the very next one could be alcohol.
Lord Mackie of Benshie: Is that not what the noble Lord wants?
Lord Stoddart of Swindon: I am dealing with a letter I have received and trying to point out that the amendment could be the thin end of a very dangerous wedge. I am sure that that will be so. I now refer to air pollution.
Lord Ewing of Kirkford: Before my noble friend leaves the subject of alcohol, is he aware that for many years, because of the high alcohol content of spirits, the advertising of spirits on television has been banned?
Lord Stoddart of Swindon: Yes, as has the advertising of cigarettes on television. The amendment goes further than that. It seeks a ban on all advertising of cigarettes. I am suggesting that a ban on all alcoholic liquor could follow. I am sure that my noble friend would not be pleased with that.
I was about to speak on air pollution, in particular from diesel vehicles. I understand that the PM10s are carcinogens. Benzine from cars is also a hazard. The National Bus Company, London Transport, and others who operate public transport services ban smoking on their buses while belching out poisonous fumes, especially in cities.
Airlines which also have anti-smoking policies dump thousands of tonnes of pollutants every year, especially near airports. Should we ban the advertising of all those products? We had better think about that aspect.
Some people believe that pollution is a bigger enemy than smoking. I cite that from The Times of 12th January. Who was stating that? It was Dr. John Ayres, an adviser to the Department of Health and consultant physician in Birmingham. So some people believe that there are greater dangers than tobacco smoking.
In his letter my noble friend states that tobacco kills one in four users. That is a good statistic. But I also derive from that that three out of four die from something else. Indeed, the statement is contradicted by the next sentence in the letter which states that smoking kills 300 people a day. However, a total of 1,753 people die every day. As a percentage of 1,753, 300 is only 17.1 per cent. Since 30 per cent. of the population smoke, it would appear from the figures quoted by Professor Julian and my noble friend Lord Rea that those who smoke have a better chance of survival than those who do not. I merely quote from my noble friend's letter and the official statistics.
I put a number of questions to the noble Baroness. I went to see her because I was concerned that smokers were being denied treatment under the National Health Service. I therefore put down a number of questions. One of them asked:
"What proportion of those people who die each year from so-called smoking related diseases smoke tobacco?"
The Written Answer was very interesting; I must read it to the Committee. The noble Baroness, Lady Cumberlege, stated:
"There are a number of diseases where smoking is a risk factor. The proportion of deaths which are attributable to smoking for each disease or group of diseases varies. Epidemiological studies suggest that of the 360,000 people who die from diseases where smoking is a risk factor, approximately 110,000 die prematurely from diseases which can be attributed to their smoking behaviour".—[Official Report, 10/1/94; col. WA7].
One is almost not allowed to die of anything but a smoke-related disease in this country. There are only 640,000 deaths a year. If, again, one does one's arithmetic, one finds that 110,000 expressed as a percentage of 360,000 is 30 per cent. You would expect 30 per cent. of smokers to die since there are 30 per cent.

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of smokers in the population. Once again, we must examine the figures closely. That is an official Written Answer. It comes from the Government, not from me.
It seems that we have now reached a situation where we are told by the Government that 56 per cent. of all deaths have been from smoking-related diseases. The figure is hard to believe; nevertheless, if the Government say it, I suppose it must be true.
Noble Lords: Oh!
Lord Stoddart of Swindon: I also asked another Question. I am sorry that this is taking so long, but we need the facts. On 19th January I asked the Minister how many of the 50 million working days per year which the Minister for Health had recently stated were lost due to smoking related diseases involved people who smoked tobacco. The noble Baroness, Lady Cumberlege, replied:
'The 50 million working days is an estimate from the Royal College of Physicians' Report Smoking or Health. A copy is available in the Library".—[Official Report, 19/1/94; col. WA 49.]
Those were interesting figures, so I checked to find out how many working days per year in total were lost through sickness. Unfortunately, the Government did not have the figures, so I had to go to the CBI. What did I find? The CBI published a report on 3rd June 1994. It had carried out a survey. I found that 171,400,000 days were lost through sickness in 1993. If 50 million days are lost through smoking, that represents 29 per cent. of all working days lost through sickness. Since 30 per cent. of the population smokes, those who smoke are rather better attenders at work than those who do not smoke.
Midnight
Baroness Cumberlege: This is very entertaining; I am thoroughly enjoying it. However, I should like to point out to the noble Lord that the figures he uses are not comparable as the Royal College of Physicians' survey occurred in 1977 and the CBI's in 1994.
Lord Rea: The noble Lord's statistics are drawn out of a hat to suit his argument and have no basis.
Lord Stoddart of Swindon: I merely quoted from the Answer which the Minister gave me. There was nothing about 1977 in that Answer. Therefore, since the Question was asked on 19th January 1994, I expected that the figures given were at that date. In any event, let me go on about the CBI report.
Lord McColl of Dulwich: May I ask the noble Lord what his contribution has to do with the amendment before the Committee?
Lord Stoddart of Swindon: It has everything to do with it. The amendments are based on claims made against tobacco smoking. I am trying to put those claims into perspective. The noble Lord may not like it. Whether or not he likes it—and it does not matter what the time is—many statements have been made, not only tonight but on other occasions, and I shall ensure that

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what I have to say goes on the record. It is about time it went on the record. It is going there tonight, however much noble Lords may object.
The CBI report, Absence Through Sickness, gives all sorts of causes of absenteeism through sickness. There is no mention of smoking as a serious cause. The report mentions drinking and drugs; stress at work in regard to manual workers; and poor motivation. What it does not mention is smoking. Indeed, the report says that in 1990 £964 million was the cost of sickness due to alcohol abuse.
Members of the Committee may not like what I shall say. The other assertion that is made relates to passive smoking. We are told that 300 people a year die from passive smoking. I put down another question for the noble Baroness on 19th January 1994. I asked:
"Upon what irrefutable evidence the Minister for Health made his recent assertion … that one non-smoker a day was dying from lung cancer caused by passive smoking".—[Official Report, 19/1/94; col. WA50.]
The reply, at col. WA50, was:
"In their Fourth Report (published in 1988) the Independent Scientific Committee on Smoking and Health estimated"—
there was no proof, no evidence—
"the numbers of lung cancer deaths in non-smokers in the United Kingdom exposed to environmental tobacco smoke over most of their lives as 'several hundred deaths per year'".
So we are now working, not on the basis of evidence but on the basis of supposition. It really is remarkable that a government Minister should make a statement of that sort, based not on evidence but on supposition. I could go on and on about the subject—
Lord Beloff: Will the noble Lord give way? Does he not know the difference between a scientific estimate and a supposition? They are two quite different things.
Lord Stoddart of Swindon: Yes, indeed. I shall answer the noble Lord's point. The fact is that in the reports that are mentioned the word "supposition" appears. That is why I used the word. But there is absolutely no evidence that passive smoking causes death or injury to other people.
Lord Rea: Nonsense. That is wrong.
Lord Stoddart of Swindon: My noble friend says it is wrong. But he can produce no irrefutable evidence that 300 people a year die from so-called passive smoking. In any event, 11 people per day die—this is absolutely factual information—in road accidents. Why not demand an advertising ban on road vehicles?
Now let us turn to the cost to the health service, which the noble Baroness, Lady Seear, mentioned. I shall tell the noble Baroness what the latest estimate is. It is £600 million a year. But smokers contribute tobacco taxes amounting to £8.25 billion a year, which represents 22 per cent. of the total cost of the National Health Service. I say in conclusion—
Noble Lords: Hear, hear!
Lord Stoddart of Swindon: Yes, it is useful, and I am very glad to have the support of the Committee. I am sure that Members of the Committee have been interested in what I have had to say and will not object to all that going on the record. The fact is that smokers

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have been treated abysmally. They have been refused treatment under the National Health Service. They have been made social outcasts on the basis of very thin evidence indeed. If the Committee accepts this and the other amendments tonight, I believe that it will be doing a grave disservice to free speech and individual freedom in this country. I hope therefore that the Committee will reject them out of hand.
Lord McColl of Dulwich: I should like to thank all those who have taken part in the debate. It has been absolutely fascinating and I was riveted by the contribution of the noble Lord, Lord Glenarthur. It brought to mind that famous line of Shakespeare:
"The lady doth protest too much, methinks".
What harm would it do to ban the advertising of smoking? It would not do any harm at all. What good would it do? It would save a great number of lives. That is the key.
I understand that the tobacco companies have a problem. My heart bleeds for them. They have to recruit 300 new smokers a day to take the place of the 300 who die every day. So they have a problem. I have to admit that tobacco is unique among commercially available products in that it kills nearly half of its consumers -provided, of course, that it is is used exactly as intended by its manufacturers.
Lord Monson: Does the noble Lord agree that his amendments go much further than banning the advertising of tobacco and tobacco products in this country? They would also ban the importation of certain newspapers and magazines from overseas in exactly the same way as British publications are banned in countries like Iran and Saudi Arabia.
Lord McColl of Dulwich: I thank the noble Lord for that intervention. I thank all Members of the Committee for their contributions. I am sorry that some speakers did not approve of putting the amendments on the back of the Bill. It was a perfectly reasonable device and it would have ensured that the subject was discussed and voted upon in another place. I believe in democracy. If a vote were to take place in another place, I can assure that Committee that the amendment would be passed.
I shall take very careful note of all that has been said. I thank the Minister very much indeed for her very careful contribution. I withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 164E to 164F not moved.]
[Amendment No. 164H had been withdrawn from the Marshalled List. ]
[Amendment No. 165 not moved. ]
Clause 142 agreed to.
12.15 a.m.
Lord Mottistone Lord Mottistone moved Amendment No. 166:
After Clause 142, insert the following new clause:
("Unauthorised parking of vehicles on private land in England and Wales
Parking on private land
. The Secretary of State shall make regulations requiring local authorities to issue licences for the use of immobilisation devices on private land and these regulations shall include the criteria by which local authorities shall grant a licence.").
The noble Lord said: This is a different subject and I hope that I shall be able to deal with it quickly. The amendment invites the registration by local authorities of the use of immobilisation devices, otherwise called wheel-clamping.
I am advised on this matter by the Magistrates' Association. It is carried on from the point at which it was raised in the Committee stage of the Bill in another place. On that occasion the Minister, my honourable friend Mr Maclean, expressed sympathy for the amendment but thought that licensing would be too bureaucratic. I shall come back to that point in a minute. He went on to say that there was no easy way of finding a decision at the moment. The amendment was narrowly defeated on a Division in Committee.
One could give examples of the frustrations of people who are wheel-clamped, especially the elderly who might be inconvenienced or indeed fearful, or women who might feel vulnerable when they cannot take away their car. My car was wheel-clamped recently in Waterloo Station because I was inadvisedly doing a reconnaissance to see whether or not there was somewhere to park. A sign said one could park at the back of the station, and I left the car for five minutes while I made an inquiry. When I returned, the car had been clamped. I had no objection to that in principle; they released me fairly quickly and it did not cost much money. But it was extremely irritating and could have been very inconvenient.
I only quote that as an example because I can see why people become frustrated and why in due course that leads to trouble, in some cases in the magistrates' courts. The fact is that if my amendment had been in force, unquestionably British Rail—or whatever it is now called—would have obtained a licence and the whole thing would have been perfectly straightforward.
The other factor is that there are certainly cowboy clampers operating and they need to be controlled in some way. The Home Office told the Magistrates' Association in March that it was still considering the matter. Its aim was to ensure that any measure to prevent or deter irresponsible and heavy-handed wheel-clamping on private land did not prevent landowners from taking sensible measures to control genuine parking problems. That is a wonderful statement to excuse somebody from doing nothing at all, even if it is thought that it is something which should be dealt with.
The Magistrates' Association thinks that the position should be clear and that there should be basic rules for clamping which the public understand and which magistrates can apply and apply fairly. The sort of suggestions they are making for rules are that every company or landowner must register with the local authority and have an operating certificate valid for 12 months, a copy of which is to be sent to the local police; every person who carries out wheel-clamping will have to be named and registered with the local authority and the police; every person involved with clamping should hold a certificate of identification, including a photograph, with the name and telephone number of the company or landowner, and actual clampers should wear a company uniform if they are operating for a

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company; companies must legally keep a register of any complaints against the company and that register should be available to any court on request.
That is all quite simple. There will not be a great many people wanting to register in a given police area and I do not believe the Government are right when they say that the system would be excessively bureaucratic. Local authorities have to carry out many other activities which are certainly no more complicated and sometimes much simpler. There are many good reasons, therefore, why we should have a solution of this sort. Something must be done. The amendment was suggested by both the AA and the RAC at an earlier time and I hope that the Government will give the matter sympathetic consideration as the Bill finishes its passage through Parliament. We may then be able to include in the Bill something on these lines. I beg to move.
Lord Brabazon of Tara: I support my noble friend in his amendment, to which my name is also attached. I am delighted that the noble and learned Lord the Lord Advocate is to reply to the debate. It was in Scotland, back in June 1992, that the Scottish courts judged that wheel-clamping on private land in Scotland constituted extortion and theft. That was a fairly strong judgment made by the courts in Scotland. Following that, and in reply to a debate on this subject in another place on 16th July 1992, the Minister of State for the Home Department said:
"I, too, am aware of the considerable concerns on the subject … It struck me that many of the attitudes displayed … are akin to acts of piracy".
He went on to say:
"I give him the assurance that we will look at the matter with all urgency".—[Official Report, Commons, 16/7/92; cols. 1260–62]
Eight months later—in other words, in February 1993 —no doubt acting "with all urgency", the best the Government could do was to publish a consultation document listing six options for addressing the problem of wheel clamping. In all, some 184 organisations responded to that consultation exercise.
The RAC—noble Lords may be aware that I am a member of its public policy committee although I have no financial interest in it whatsoever—and the AA recommended the statutory licensing of land where wheel-clamping is to be permitted. At the same time the RAC urged the introduction of a code of conduct for wheel-clampers, proposing that clamping on unlicensed land should be a criminal offence and offenders prosecuted with the full rigour of the law. The motoring organisations noted the Government's request to cost recommendations and advocated a self-financing operation—in other words, that licensing fees should be fully adequate to cover all operational overheads.
Following further representations from the motoring organisations about the deafening silence from the Government following the conclusion of the consulta-tion period in May 1993, the Government replied on 4th March 1994 that,
"the consultation did not produce a consensus of opinion on the six options canvassed. The Government are still considering what action it might be appropriate to take".

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That was 21 months after giving an assurance to Parliament that they would look at the matter "with all urgency".
Further evidence of the masterful inactivity was given by my right honourable friend the Minister of State at the Home Office when he said during the Committee stage of this Bill on the proposed amendment to establish a licensing regime for wheel clamping:
"I am still giving thought to what action it might be appropriate for the Government to take. The issue has proved one of the most difficult with which I have had to deal and I have not found easy solutions".—[Official Report, Commons, Standing Committee B, 8/3/94; col. 1264.]
The Government have now taken almost two years to reach the conclusion:
"A local authority licensing regime is not the right solution and we must consider others".
The Minister went on to say:
"I cannot give… an assurance that I shall find the solution within the next few weeks".—[Col. 1264.]
We must now really begin to fear that the Government, having spent some 84 weeks getting nowhere, may continue to consider the matter "with all possible urgency". The Government rejected the licensing option on the grounds of bureaucracy. The motoring organisations believe that the Government exaggerate the bureaucracy involved. Regulation could be operated in a simple way and on the basis of a self-financing operation. It may be noted that during these two years local authorities have been given considerable powers in respect of parking. Now, off the main roads, local authorities are responsible for meters, parking wardens and so on. Why is it so difficult to add this aspect of parking—in other words, wheel-clamping on private land—to that regime? Has not the time now come for the Government to agree to cease considering the matter "with all urgency" and simply agree to regulate?
When the courts in Scotland judged wheel-clamping extortion and theft, in June 1992, the Lord Justice General stated:
"In my opinion, an activity as sensitive to abuse as wheel-clamping requires careful regulation under the law, and if it is to be continued this should only be done under the authority of Parliament, as it is already in the case of the police".
I should like to ask my noble and learned friend the Lord Advocate what now is the position in Scotland. Has there been any wheel-clamping in Scotland since that judgment in 1992, or has it all ceased? If that is the case, why is the law so different in Scotland from what it is in England and Wales now? Surely the time has come when we have to come to a conclusion on this matter.
Clamping by the police on the public highway is a carefully regulated matter. For example, you are not allowed to clamp vehicles belonging to disabled owners which display an orange badge. That is not allowed. That can happen now because there is no regulation for clamping on private land. This amendment simply seeks to introduce a regime for the regulation of clamping. I urge my noble and learned friend to give it all consideration and to tell us when we can expect some conclusions from the Government on this matter.
Baroness Darcy (de Knayth): Perhaps I may say a very brief word in support of this amendment, following
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on what the noble Lord, Lord Brabazon of Tara, has said. As a disabled driver who would have enormous problems getting unclamped, I am very grateful for the protection which the orange badge gives against clamping in the street and in public places. I hope that the criteria and the regulations will contain similar provisions. I hasten to say that I endeavour not to park in clampable spots, but we all know that that can happen. Therefore, I warmly support the amendment.
The Lord Advocate (Lord Rodger of Earlsferry): My noble friend Lord Mottistone has raised this matter which is obviously of concern to everybody who has occasion to drive a car or who finds that cars are parked unlawfully on their land. As has been remarked, the position is different in Scotland as the result of the Black case in 1992. Without going into the matter in detail, it is sufficient to say that as regards the general background of the law relating to extortion or blackmail on the one hand, or theft on the other, the law in England is sufficiently different. The Scottish courts have reached one view. I am happy to say that they have reached it since I had occasion to argue a particular case and they supported the view which I argued. They reached that view but the law in England is different. I would not want to say more on that because, as some Members of the Committee are aware, a case is pending before the courts in England and Wales on the matter.
As to whether there has been any wheel-clamping on private land since the Black decision, I cannot say that there has not, but certainly we have no reason to believe that the decision has not been salutary. It is true to say, as my noble friends have said, that consideration of this matter has taken a long time. That is because it is difficult. The question has been raised as to whether or not it would be desirable to have clarity in the matter. As always with the law, it is desirable to have clarity, but it is also true that this is not an entirely straightforward matter.
On the one hand, it is quite clear that the kind of threats to which in particular women motorists, perhaps late at night, have been subjected, are wholly intolerable. On the other hand, it is equally true that people who park unlawfully on other people's land are doing something which is unlawful and intolerable and for which they have a right to a remedy. So one has to balance the various interests. It is that which has caused the difficulty here.
My noble friends have referred to the consultation document which did indeed give rise to a large number of views. As a result, we have had to consider those views. As my noble friends have said, that has taken a considerable length of time. My noble friend Lord Mottistone gave a particular version of regulations which has been proposed by the Magistrates' Association, but other versions have been put forward by other people, with other solutions. The Government are not convinced that the kind of licensing system which has been proposed by my noble friend would actually bring relief to motorists in the kind of situations which cause the most problems to them, and that it would clear the cowboys off the streets.

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Nonetheless, it is true to say that the Government have been considering this matter for some time. It is complex, and although I realise that in the light of the time it has taken it may not be entirely reassuring to my noble friends, I can say that the Government will put forward proposals in the near future on this matter. I cannot go further than that, but in the light of that undertaking I would ask my noble friend to withdraw his new clause.
12.30 a.m.
Lord Harris of Greenwich: But what, I wonder, does "in the near future" mean? After all, we had the Minister of State at the Home Office saying that it was going to be looked at with great urgency many light years ago. Now it is "in the near future". Does that mean before the Summer Recess, before this Bill comes for consideration at Report stage or at Third Reading? Really there is considerable public disquiet about this, as I think the noble and learned Lord recognises. He has added that as a result of this decision in the Scottish courts the problem appears to have been eliminated. Why cannot we have similar progress in England and Wales?
Lord Rodger of Earlsferry: It is true that the question of wheel-clamping has been eliminated. Whether the question of unlawful parking has been regulated in an entirely satisfactory manner is a matter which is perhaps open to question, and certainly it has been questioned by some people. I can say to the noble Lord, Lord Harris, that the matter was raised not exactly light years ago but on the 8th March when the remark to which he referred was made. I cannot say—I would if I could—that it will be within the timescale of this Bill. I cannot go further than to say that it will be brought forward as soon as possible and in the near future.
Lord Mottistone: I am sorry that my noble and learned friend has no more guidance than Mr. Maclean had in the other place when he was debating the matter in March. It struck me as we debated this -I throw this out for my noble and learned friend to consider - that I shall probably put down an amendment on these lines for the Report stage to see whether we can push it further. If the Government want this to come into force, it might be helpful if we had in this Bill a little clause giving the Secretary of State powers to make an order relating to wheel-clamping on private land. It need not say any more than that, but that would give the Government the underwritten power to go ahead and issue an order as soon as they had made up their minds. They might make their minds up at the end of the Summer Recess—who knows? People do work during the Summer Recess and so they would have this waiting for them. I shall leave this now, with a view to putting down an amendment on those lines at Report. At this stage I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clauses 143 to 145 agreed to.
Earl Ferrers Earl Ferrers moved Amendment No. 166A:
After Clause 145, insert the following new clause:
"Access to computer material by constables, etc.
Access to computer material by constables and other enforcement officers
. —(1) In section 10 of the Computer Misuse Act 1990 (offence of unauthorised access not to apply to exercise of law enforcement powers), after paragraph (b), there shall be inserted the following words—

"and nothing designed to indicate a withholding of consent to access to any program or data from persons as enforcement officers shall have effect to make access unauthorised for the purposes of the said section 1(1).

In this section "enforcement officer" means a constable or other person charged with the duty of investigating offences and withholding consent from a person "as" an enforcement officer of any description includes the operation by the person entitled to control access of rules whereby enforcement officers of that description are, as such, disqualified from membership of a class of persons who are authorised to have access."

(2) In section 17(5) of that Act (when access is unauthorised), after paragraph (b), there shall be inserted the following words—
"but this subsection is subject to section 10." ").
The noble Earl said: I beg to move Amendment No. 166A and I should like to speak to Amendment No. 179AA at the same time. These amendments make it clear that any notice purporting to prevent a police officer from gaining access to a computer system does not in itself make access unauthorised under the Computer Misuse Act 1990.
It is possible to gain access via the telephone network to stores of electronic information known as "bulletin boards". Telephone numbers are advertised in computer magazines and members of the public with the appropriate equipment can dial into these systems. Many of these bulletin boards are operated by private individuals for perfectly innocent purposes. Some bulletin boards, though, have been used to convey obscene material, including child pornography. The police have drawn our attention to a possible impediment to the investigation of this problem.
Some bulletin boards have built into them a notice purporting to deny access to law enforcement officers. Such notices are deliberately intended to attract the protection of the Computer Misuse Act 1990, which makes it an offence to gain unauthorised access to a computer.
The notice would not of course have any effect where the police had obtained a search warrant and had entered the premises concerned. However, it may apply where police are monitoring these systems or where they are carrying out preliminary investigations remotely; for instance, in a police station. The police would like to be able to gain access to these systems—in the same way members of the public can—without the fear that they may be committing a criminal offence.
This amendment does not give the police special powers to access private computer systems. Members of the public will remain entitled to operate computer systems to which they control access. The amendment simply makes it clear that the computer system's owner cannot invoke the provisions of the Computer Misuse Act in order to deny access to police officers while allowing access to every other member of the public.
Viscount Colville of Culross: I took the Computer Misuse Act 1990 through this House. At the time I had

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no idea that there would be a misuse of the Act, as referred to by the noble Earl. I am certain that it is correct to put the matter right. I support the amendment.
On Question, amendment agreed to.
Clause 146 agreed to.
Lord Windlesham Lord Windlesham moved Amendment No. 167:
After Clause 146, insert the following new clause:
("The Parole Board
. —(1) The Board which at the commencement of this section is known as The Parole Board shall be, by that name, a body Corporate and as such shall be constituted in accordance with, and have the functions conferred by, this Act.
(2) Schedule (The Parole Board: Supplementary Provisions) to this Act shall have effect with respect to the Board.").
The noble Lord said: This group of amendments concerns two important matters which relate to the Parole Board, of which I was chairman for six years in the 1980s. I am pleased to see in the Chamber, even at this hour, my predecessor and my immediate successor. In view of the hour, I shall deal with the amendments as briefly as possible.
Two unconnected matters are raised in this series of amendments. The first relates to the proposal to establish the Parole Board as a non-departmental public body. Amendments Nos. 167, 170, 176 and 178 deal with that. The second matter, to which I shall speak separately, relates to a flaw that has emerged in the legislation relating to recalls to custody.
Amendment No. 167 is a paving amendment for the substantial proposal contained in Amendment No. 170. I speak also to Amendments Nos. 176 and 178, which are consequential. In the Criminal Justice Act 1991 Parliament conferred significant new powers on the Parole Board. The two most significant were the responsibility to review and to take final decisions on the release of life sentence prisoners serving discretionary sentences of life imprisonment. The board was also given the duty to decide whether to release on licence prisoners eligible for parole who are serving sentences of four to less than seven years.
Moreover, because the local review committees are being phased out, the Parole Board is taking responsibility for some 5,500 interviews each year— about 100 interviews a week—of prisoners applying for parole. As a result of these and other factors, it will be seen that the Parole Board is becoming less of an advisory body and more of a decision-taking body. At the same time, its work is becoming increasingly diverse.
These amendments would establish the board as an executive non-departmental public body. Noble Lords may feel that that status is appropriate. It would mark the independence of the Parole Board from ministerial action, which has always been a hallmark of the system of parole since its inception.
I should be the first to admit that the drafting of this series of amendments, and in particular the very detailed drafting of Amendment No. 170, which is a new schedule, may not be perfect. I shall understand completely if the Government wish to take away the amendments to consider them before the next stage of the Bill. But an indication of support in principle from the Front Bench would be very welcome. I beg to move.
Earl Ferrers: I am grateful to the noble Lord for drawing attention to the need for these new clauses and the new schedule. The first new clause and the new schedule appear to be intended to give the Parole Board status as a non-departmental public body. The Government accept the need for that.
Before the introduction of the Criminal Justice Act 1991, the Parole Board was a purely advisory body offering recommendations to the Home Secretary on the early release of determinate and life sentence prisoners. As a result of changes introduced by the 1991 Act, it has now become more of an executive body, taking decisions on the early release of certain categories of prisoner.
In view of those changes to the role of the Parole Board, the Government agree that it should now become a non-departmental public body reflecting fully its independence and accountability in decision making. I understand that the board itself welcomes the prospect of becoming a non-departmental public body.
The other new clause suggested by my noble friend is, I believe, an attempt to rectify the current unsatisfactory arrangements concerning the recall to prison of people on parole. We welcome that. Where offenders misbehave while on parole, there is discretion to revoke their licence and to recall them to prison.
Until recently decisions to recall people on parole to prison in out-of-office hours were taken by officials on behalf of the Home Secretary. However, because of the way in which the Criminal Justice Act 1991 was constructed, two systems of recall are now running in parallel: one by the Parole Board; and the other by my right honourable friend. That is obviously not satisfactory. It is clearly desirable that there should be clarity and simplicity over a matter of this nature, and it has therefore been decided, in agreement with the Parole Board, that the decision to recall any people on parole should rest with my right honourable friend the Home Secretary.
We therefore welcome the new clause which my noble friend has tabled to try to achieve that. Unfortunately, the drafting of the amendment is, as he suspected, not perfect. If my noble friend will agree to withdraw the amendments, I shall ensure that the Government will consider the matter and will table suitable amendments to achieve those aims at Report stage.
Lord Harris of Greenwich: As a former chairman of the board, I welcome what the noble Earl said. As the noble Lord, Lord Windlesham, indicated, the Parole Board has changed in character very dramatically. When I was chairman, it was an advisory body. It now has clearly defined executive responsibilities. That being so, it is sensible for its constitution to be reviewed in the way proposed by the noble Lord, Lord Windlesham, which the Government have now accepted. Therefore, I welcome both what has been said and what is to be done in that regard.
The hour is now after 12.40 a.m. When this discussion began, there were 12 Members of the Committee in the Chamber, three of them former chairmen and one the current chairman of the Parole

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Board. Later this morning, there are before us a whole series of other criminal offences proposed either by Members of the Committee or the Government. In my view, that is no way to conduct public business.
The reason for the problems is the Long Title of the Bill—over 450 words. As a result of that, so far as I can see we can have a debate on any issue in the general area of criminal justice policy. But it is the Government's Bill. As it stands at present, it has over 150 clauses. I do not believe that this is a responsible way in which to consider legislation.
We expect people outside to obey the law of this country when it has been passed and adopted by both Houses of Parliament. That being so, it behoves us to ensure that, when we are considering that legislation, we do so in a responsible fashion. I do not believe that we are doing so when we are sitting here in an almost deserted Chamber discussing major changes to the law of this country.
12.45 a.m.
Viscount Colville of Culross: I see that the noble Lord, Lord Belstead, is about to rise to speak, but perhaps I may just precede him for a moment as I did in another capacity. I presided over the transitional stage when the 1991 Act was being put into effect by the Parole Board. It appears to me that the logic of what is now being suggested by the noble Lord, Lord Windlesham, and accepted by the Government is overwhelming. I am extremely glad to see it being put on the statute book.
Lord Belstead: I have just a brief few words to say. I listened with interest to the noble Lord, Lord Harris, and the noble Viscount, Lord Colville of Culross, who are both in favour of two amendments in the group. I should, first, declare an interest in the matter as I am the present chairman of the Parole Board. Having heard the response of my noble friend the Minister in which, as I understand it, he was good enough to say that he accepts the first two amendments in principle, I feel that we must now prepare ourselves.
However, perhaps I may ask my noble friend just one question. I looked with some care through the schedule to which some of the amendments in the group refer. In that schedule there is provision for pensions for both members and employees of the Parole Board. As my noble friend has already said that he wishes to take the amendments away for consideration there is no need for him to answer me tonight, but perhaps I may put to him the following point. I wonder whether the pension provisions need to be spelt out more fully; for example, to state that no pension scheme to which employees or some of the members may transfer should leave them worse off than they were previously. Of course, that is the kind of subject about which argument has raged during the passage of many Bills that have passed through this Chamber. I simply question whether that part of the schedule to which some of the amendments tabled in the name of my noble friend Lord Windlesham refer perhaps needs some fleshing out.

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Having said that, I simply thank my noble friend Lord Ferrers for his reply. However, before I sit down I should like to congratulate my noble friend Lord Windlesham on, if I may say so, getting a first in managing to get a group of amendments accepted which, in fact, is the second group of amendments to which he has not actually spoken. That is a remarkable achievement and shows the strength of his quiet, persuasive powers.
Earl Ferrers: I am all for expediting things where it is possible. With regard to the question raised by my noble friend Lord Belstead regarding pension pro-visions, I must say that they are always very important matters. When there are changes, it is important to ensure that the kind of pensions that people had been anticipating do continue. That is the kind of matter that we shall have to consider. As I explained previously, the amendments are not perfect and I shall certainly bear in mind the remarks made by my noble friend.
I turn now to the points made by the noble Lord, Lord Harris of Greenwich. The noble Lord said that there were only 12 people in the Chamber when the debate started, four of whom were previous members of the Parole Board. If I may say so, I believe that to be a very concentrated membership of people with an interest in the subject. The noble Lord then went on to complain vigorously about conducting the Government's business at this hour of night. All I can tell the noble Lord is that, if it is disagreeable for him, it is also disagreeable for a number of other people, including myself.
However, the noble Lord will realise that we have made arrangements, which were agreed through the usual channels, that the Bill should be continued and finished today. We had a fascinating debate a few hours ago on tobacco which went on for about one-and-a-half hours; and, indeed, we had an equally fascinating debate much earlier for about eight hours which concentrated on sex and all its capacities and varieties.
If Members of the Committee wish to speak upon these matters, no one can stop them, but the result is that it then makes it difficult for other people who speak later. I am sure the noble Lord, Lord Harris of Greenwich, will agree that all governments must have their plans and the way that we deal with these is agreed through the usual channels. It was agreed to proceed in this manner and I think that we should continue in this manner. I only hope that Members of the Committee will be slightly more restrained in their contributions than possibly was the case earlier today because obviously the longer people talk, the longer the proceedings will last. However, I think we are right to continue.
Lord Harris of Greenwich: I have just two comments following that, the first of which is about pensions, which the noble Lord, Lord Belstead, raised. If there is any question of moving towards a resolution of this particular problem before the Report stage, perhaps the noble Earl could write to a number of us indicating the Government's thoughts on the matter. Of course it is, as he rightly recognised, a matter of considerable importance.

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As regards the hour at which we are sitting, the problem is not some agreement reached through the usual channels—my own Chief Whip has not in fact assented to this arrangement; let me make that quite clear—but the length of the Long Title of the Bill. Once the Government decide to legislate on such a broad area as they have chosen to do for their own reasons—that is a decision by the Government, not by this House—and to produce a Long Title of such immense complexity, it is inevitable that there will be a prolonged Committee stage, particularly if there are going to be 150 clauses to the Bill. I must make it quite clear that, in my view, this is wholly unreasonable. I wish to say no more tonight but if this goes to the Report stage, when we are discussing similarly important questions in the early hours some of us will complain most vigorously.
Earl Ferrers: I do not think the noble Lord has done too badly this evening by complaining and I do not think it is really fair that the noble Lord, Lord Harris, should complain about the Long Title and say that, because we have been stupid enough to produce a Long Title, we have to take the blame for everything that has been added to it. The noble Lord will realise perfectly well that, for instance, the matter of the age of consent was never part of the Bill when it started. It was added in another place and Members of the Committee today have tried to add more things. The result is that the Bill has become longer and longer. Any business of the Chamber can be conducted only by mutual consent and by mutual restraint. I can only say to the noble Lord that if Members of the Committee speak at considerable length—that is their right—then of course that prolongs the proceedings for other people. I just hope that we will be more expeditious in our work.
Baroness Seear: I agree but I should point out to the noble Earl, Lord Ferrers, that most of the people who spoke at great length have now gone and left it to those who did not speak at great length to carry the can. Is it really absolutely impossible to move some of this onto a Friday? It really is extremely difficult to deal in a Committee of this size with matters of this importance when a great many of us are practically asleep anyway.
Earl Ferrers: The noble Baroness does not look as if she is asleep at all. I think she is very much awake. Of course that is what happens—people come in the earlier part of the day, make their great speeches at quite substantial length and then buzz off. That then makes it very difficult for everyone else. I understand the frustration of the noble Baroness, which I share, but one cannot control the Chamber. I think that if we were to try to move this business to a Friday that would cause as many complications as it would resolve.
Lord Windlesham: In view of the satisfactory nature of the reply given by the Minister on the Front Bench, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Windlesham Lord Windlesham moved Amendment No. 168:
After Clause 146, insert the following new clause:
( "Amendments of the Criminal Justice Act 1991
.—(1) Subsection (4) of section 50 of the Criminal Justice Act 1991 (which provides for the transfer by Order of certain functions to the Parole Board) is hereby repealed.
(2) Schedule 5 to that Act (The Parole Board) is hereby repealed.").
The noble Lord said: As the noble Lord, Lord Belstead, pointed out, the Minister was good enough to accept this amendment in principle before it had been moved. I am very grateful to him for that. I simply ask him to bear in mind when further consideration is given to the proposal that the purpose of Amendments Nos. 168 and 177 is to amend the procedural arrangements for the recall of prisoners who have been released on licence, particularly in emergencies—which are highly unsatisfactory as the result of an unintended provision in the 1991 Act—and not the substantive decision on whether to confirm or reject the actual decision, which properly belongs to the Parole Board. It is not proposed that that should be altered. I beg to move.
Earl Ferrers: I offer my apologies if I have inconvenienced the Committee. I spoke to that amendment merely because the amendments wen; grouped together and I thought that that would be a convenient way of dealing with it. I apologise if I inconvenienced my noble friend.
Lord Windlesham: There is no need for my noble friend to apologise. I am delighted with the way he has handled the amendments. As a last word in relation to the Parole Board, perhaps I may point out that such is the interest and importance of the subject that the audience in the Chamber has been increasing steadily. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Flather Baroness Flather moved Amendment No. 168A:
After Clause 146, insert the following new clause
( "Visual recordings of public events
.—(1) Without prejudice to any power which they may exercise for those purposes under any other enactment, a local authority may take such of the following steps as they consider will, in relation to their area, promote the prevention of crime or the welfare of victims of crime—

(a) providing apparatus for recording visual images of events occurring on any land in their area;

(b) providing within their area a telecommunications system which, under Part II of the Telecommunications Act 1984, may be run without a licence;

(c) arranging for the provision of any other description of telecommunications system within their area or between any land in their area and any building occupied by a public authority.

(2) Any power to provide, or to arrange for the provision of, any apparatus includes the power to maintain, or operate, or, as the case may be, to arrange for the maintenance or o[>eratior, of, that apparatus.
(3) Before taking such a step under this section, a local authority shall consult the chief constable of the relevant police authority.
(4) In this section "local authority" means a county council or a district council.").
The noble Baroness said: This is a very straightforward amendment. Its purpose is to provide local authorities with specific power to spend money on closed circuit television (CCTV) surveillance schemes. The clause is designed to help prevent crime and anti-social behaviour, and it should also reduce fear of crime. As such it accords entirely with the purpose of the Bill.
There are no public expenditure implications. The amendment does not seek additional financial resources for local authorities. It seeks only to give local authorities throughout England and Wales a clear legal power to install and maintain the provision of CCTV surveillance in the council's area.
These schemes are often the product of partnerships between local authorities, the police and local businesses. However, local authorities are finding that they are restricted in the extent to which they can contribute to CCTV schemes, particularly comprehen-sive town centre schemes which provide protection for property and visitors on the streets of our towns. There are currently no specific legal powers under which local authorities may encourage expenditure on these schemes, which extend wider than protection of the council's property or functions.
A scheme which covers only a council's housing estate would be permitted as incidental to the council's housing management. Similarly, one restricted to its leisure centres or its car parks would be incidental to those functions. However, that does not extend to town centre surveillance. Those cities which have received funding under central government initiatives—for example, Safer Cities or City Challenge—have been able to fund CCTV from that source. Where CCTV is not strictly for the protection of the council's own property the only power under which a local authority can incur expenditure on such schemes is under the general power to help communities under Section 137 of the Local Government Act 1972. Expenditure under that section is strictly cash limited to £1.90 per head of population, such that many authorities, particularly smaller district councils, are quite unable to use that power to fund CCTV schemes.
This clause is not a brand new innovation. It is modelled on a legislative provision in the London Local Authorities (No. 2) Act 1990, which the Government did not oppose during the passage of the Bill. In other words, the London boroughs already have the power that this clause seeks to give to our local authorities elsewhere in England and Wales.
As I have already said, the clause has no financial implications. It enables the council to choose to fund such a scheme within its overall budget considerations and reflecting its own local priorities. I hope that my noble friend will be able to take a generous view of the clause because it is causing some anxiety and the district councils outside London would like to be placed on the same footing as the London boroughs. I beg to move.
Earl Ferrers: My noble friend asks me to take a generous view of the clause; and indeed I can tell her that I shall do that. The Government are sympathetic to the aims of the amendment which my noble friend has put down. I am bound to tell her that we could not accept the amendment at this stage. We could not accept that the new clause is necessarily the right way to remove the uncertainty which appears to exist. However, I can assure my noble friend that we shall consider the amendment. I shall report back to the House as a result of the considerations. I hope that on that basis my noble
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friend will be good enough to withdraw her amendment in order to allow me to consider the points that she has made.
Baroness Flather: I thank the Minister for his words of hope and expectation. I look forward to the next stage of the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 147 [Sale of tickets for designated football matches by unauthorised persons]:
Lord Donoughue Lord Donoughue moved Amendment No. 168B:
Page 119, line 27, leave out from second ("a") to end of line 29 and insert ("sporting event for which 6,000 or more tickets are issued for sale").
The noble Lord said: In moving the amendment, I speak also to Amendments Nos. 169ZA to 169ZD.
Clause 147 makes it an offence,
"for an unauthorised person to sell, or offer.… for sale, a ticket for a designated football match in any public place".
The proposed amendments seek to extend the coverage of that from just football to all sporting events where more than 6,000 tickets are offered for sale.
I begin, first, by praising the Minister and the Government for introducing in Clause 147 the ban on football touting. As a spokesman on sport, I should add that a number of measures have recently been implemented—restricting racial chanting, invading the pitches, and now the ticket touting—which have made football safer and more enjoyable to watch. Together with the excellent reforms on VAT for bloodstock and on Sunday racing, to which we look forward, the Government's record in relation to professional sport is really quite good. Most of the measures have been in response to pressure from the Opposition and Back-Benchers on all sides. I wish not only to congratulate the Government on their concessions, but to promise to keep up the pressure.
The amendments in my name are supported by noble Lords from the Cross Benches, the noble Earl, Lord Carnarvon, and the noble Lord, Lord Weatherill, and noble Lords from the Government Back Benches, the noble Marquess, Lord Zetland, and the noble Lord, Lord Orr-Ewing. They will not themselves delay the Committee tonight. They fully support the amendment but do not wish to speak at this late hour.
We do not seek to criticise the Government's approach in the Bill, but simply to make a logical extension of the legislation to cover all sporting events at which more than 6,000 tickets are sold. That figure is not accidental. We do not wish to burden the police and authorities with regulating smaller events where there is normally no problem. But 6,000 is a number which covers both the No. 1 Court and the Centre Court at Wimbledon. It also clearly involves Twickenham, Cardiff Arms Park, Lord's, top golf, horse race and motor race venues. So it is targeted just to the areas where the problems exist.
I gather from previous discussions that some Ministers believe that ticket touting is a law and order problem only in football, and that elsewhere in sport it is simply a case of the free markets operating. That is deeply mistaken. There is much evidence that ticket touting has been taken over by professional criminals in

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other sports. It does not mean that all other sports are identical to football; we are not saying that it is an identical problem. This problem takes a different form in different sports. But the common element is the criminal element. The sporting bodies have documented the tactics used by touts to get tickets. Their actions regularly include fraud, theft, deception, forgery and intimidation. Those involved are often organised into Mafia-style gangs; and to obtain tickets they steal in the post, they mug ticket-holders in the street and steal from the hands of children.
I have the support for this view and for these amendments from the relevant governing bodies of the various sports from the All England Lawn Tennis Club, from the Test and County Cricket Board, the MCC, the Rugby Football Association and the Professional Golfers' Association. I have plenty of material available.
If the Minister has doubts about the criminality of touting elsewhere than in football, he should go and look for himself: talk to the police at Wimbledon, go there this week and see the criminals in action. As a reward, he might drop in at the Centre Court as part of his observations.
Sporting bodies such as Wimbledon have been forced into self-policing, including making tickets non-transferable and invalidated if transferred. But this transfers the penalty to the customer, the ordinary tennis-lover, often a tourist, who pays a high price for a ticket which is then worthless. That is deception and fraud, but currently not clearly a pursuable offence. That is surely wrong.
Wimbledon has done what it can through self-policing, but now confesses that this cannot be enough. The club has stated:
"We now look for further protection. A senior official of the club has stated that there is clear evidence of organised crime moving into this area".
"We have every indication that the people who are involved in ticket-touting in New York, who had to be driven out by the authorities there, have moved their activities across the Atlantic because there are such large sums of money to be made".
Today a man was before the courts in Wimbledon charged with deception. He was in possession of 100 tickets. But it is much more effective to stop this if there is a clear offence of touting. The officer in charge of policing Wimbledon tennis championships, Chief Inspector Coates, last week publicly called for new laws against touting in all sports, not just football. He said:
"The ticket touts will operate anywhere where there is money to be made, not just at big football matches. I would like to see the Government take the opportunity to legislate against touting per se".
That is precisely what we are seeking.
Ticket touting is a public order issue, not just in relation to football. There is evidence from the Police Federation that the police are concerned at the growth of criminality, at the extent of public nuisance involved and that under the present law they can do little about it. The answer is not a jumble of self-regulation, growing up in various sports introduced by various governing bodies and backed by private security agents. That is not desirable and not effective.
The answer is to deal with this serious and growing law and order problem and to deal with the criminal

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elements increasingly involved in it and to do so, I suggest, by these simple amendments. The Government have conceded the principle that ticket touting is a matter for criminal law, by applying it to football. There is in my view no logical or practical distinction between the criminals who tout tickets at Wembley and the gangs —so far legal—who tout at Wimbledon, Twickenham, Lord's or York Races. The amendment makes that logical improvement. I trust that the Minister will accept it in the positive and helpful spirit in which it is moved. I shall listen very closely to his reply. I beg to move.
1.15 a.m.
Viscount Mountgarret: I support the amendment moved by the noble Lord, Lord Donoughue. In my view it does not go quite far enough. The noble Lord has shown how places like the All England Tennis Club, the cricket clubs, rugby football and so forth suffer badly from ticket touts in general and the illegal sale of tickets.
I should like to extend the: thought for one moment to the field of the theatre. As the Members of the Committee know, there are some excellent productions in London, and indeed elsewhere, for which tickets are extremely hard to come by. The sale price of such tickets is whatever is thought to be the right price. But in relation to, for instance, "Phantom of the Opera", for which I understand one cannot get tickets even now for some nine months ahead, it is possible for ticket touts to sell tickets at considerably more than face value.
The net effect is that if people are prepared to pay, say, £100 for a ticket which has a face value of some £25 or £30, then money which should go into the arts, the support of the theatre, the artistes taking part, and so on, will be diminished. Therefore it would be desirable if the principle of these amendments might perhaps be accepted. I ask my noble friend Lord Ferrers whether the question of the theatre and that sort of touting (not at sporting events) might perhaps be looked at.
Lord Williams of Mostyn: The Minister said earlier, in justified self-defence, that we had spent many hours discussing various sexual practices —most of which seemed to be buggery. Not having the same intense interest in buggery as some other Members of the Committee who were then present, I thought that I might productively occupy myself by looking at Clause 147(1). I took an example for myself: if I had a ticket for a football match for which I had paid £20 and was not able to go, and met the noble and learned Lord the Lord Advocate in a public house and said: "My Lord, would you like this ticket for £25?" I believe I would be committing an offence under Clause 147(1). The serious point I make is that Clause 147(1) as presently drafted makes it,
"an offence for an unauthorised person"—
me in my example, because I am not,
"authorised in writing to sell tickets for the match by the home club or by the organisers"—
to sell to the noble and learned Lord the Lord Advocate,
"or offer or expose for sale, a ticket for a designated football match"—

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a designated football match of course being a match designated under the Football (Offences) Act 1991. Is this offence really intended to catch that sort of innocent activity? I rather doubt it.
Lord Burnham: Obviously at this hour of the morning I shall be brief. I find it extraordinary that a clause should be sent to us from another place with this very curious and inadequate wording. I have to confess that I have not read Section 1(1) of the Football (Offences) Act, but it seems curious that it would be an offence to offer for sale tickets for an association football match, a rugby football match, an American football match or the wall game, but not, on this the second day of Wimbledon, a ticket for Wimbledon. Therefore I ask my noble friend the Minister to look at this clause again. My noble friend Lord Mountgarret raised the question of theatrical events, but the amendment that we are debating, on which I give the noble Lord, Lord Donoughue, my fullest support, talks about sporting events.
In asking my noble friend the Minister to look again at this matter, will he consider the question of 6,000 seats? I am not certain whether Wembley Arena, Olympia, Earl's Court, whatever the place is called in Sheffield, and the NEC in Birmingham have in fact more than 6,000 seats. I understand that they are on the borderline. However, at all of them events are conducted from which one would hope that ticket touts would be banned. Therefore, in support of the noble Lord, I ask that this clause be looked at in detail in order that it may cover a wider field of sporting events.
Earl Ferrers: I was very excited when the noble Lord, Lord Donoughue, rose to move this amendment, as indeed I always am excited when the noble Lord gets to his feet. He started by praising the Government for what they had done about ticket touting and VAT on horses. He said that the Government had done very well for the sports part of the world. I am deeply grateful for that. He then claimed credit for all that had happened just because the Opposition had prodded the Government to do it. Well, he is entitled to obtain his credits where he can.
Lord Donoughue: Perhaps I may correct the noble Earl. I included Back-Benchers from all other sides. I do not wish to take away from them the great credit.
Earl Ferrers: The noble Lord is always generous. He has been generous again this evening in claiming that not all the credit was due to him—which, of course, it was not. Quite a lot of it is due to the Government. He continued with the intriguing suggestion that perhaps we would like to go to Wimbledon this week to see what would happen. I should be delighted to do so. But noble Lords like to keep the Front Benches here until 1 o'clock in the morning and so we cannot always go to Wimbledon.
I appreciate that for quite a lot of people ticket touting is rather offensive and a disagreeable and unpleasant activity. People do not like it. My noble friend Lord Mountgarret suggested that tickets for "The Phantom of
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the Opera" are very hard to come by and that the money that goes into the purchase of such tickets does not go to where it should; namely, on the arts.
I do not believe that that is true. I travelled in a taxi the other day and saw on the partition a note that there were two tickets for, I think, "The Phantom of the Opera", for £120 each. I was rather surprised to see it and asked the taxi driver about the tickets. He said that he, his wife and two friends intended to go to "The Phantom of the Opera" (if it was that show) and he had bought four tickets, not realising that his friend had also bought two tickets. So he was going to sell them. He had paid £120 each for them. Therefore he had two extra tickets which he wanted to get rid of. I cannot see anything basically wrong in that. The £120 for those tickets would not have gone to the theatre because the tickets were bought from the theatre at the original price. In that instance the market price was what people were prepared to pay. Therefore, from that point of view I do not feel that touting itself is wrong. If there is a market for a ticket for Wimbledon or a ticket for "The Phantom of the Opera", it is the same kind of market as there may be for a piece of antique furniture and it has to find its own level.
I do not believe that it would be appropriate to apply the criminal law to prohibit people reselling tickets which they had perfectly lawfully obtained. If people want to buy tickets from touts, they should be able to do so. After all, nobody is obliged to pay the price that the tout asks. But that is very different from tackling a public order and public safety problem when ticket touting is made an offence in relation to football. There is very little evidence that the same circumstances apply to other forms of sport or recreation as they do to football. The fact is that Lord Justice Taylor identified two evils over Hillsborough. He said first that the presence of ticket touts outside football grounds can act as a focus for disorder since it encourages those without tickets to travel to the ground hoping to obtain them which can sometimes result in unruly behaviour.
Secondly, he was concerned about the effect of the indiscriminate sale of tickets by touts. Ticket touts are in no way fastidious as to whom they sell their tickets. That can result in supporters of one team finding themselves propelled into the middle of the opposing team's fans with all the potential for mayhem and public disorder which that would have. Action was therefore necessary for reasons of public order and public safety.
That is the reason we introduced this part of the Bill. The conditions that apply to football matches do not apply, for instance, in the circumstances of Wimbledon, a cricket match or indeed Henley. Of course, should public disorder occur during the cricket week at Canterbury or the Henley Regatta, or for that matter the ice dancing championships, then we could take appropriate action. But frankly that is not very likely.
The noble Lord, Lord Williams of Mostyn, was perfectly correct. He said that if he met my noble and learned friend the Lord Advocate in some place and my noble and learned friend offered him a football ticket at above the appropriate price, he would be touting and creating an offence. As one might expect of a lawyer, the noble Lord, Lord Mostyn, is perfectly correct; my

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noble and learned friend would be indulging in an offence and I dare say that in accepting the ticket the noble Lord, Lord Mostyn, would be also. The fact is that that is touting of a football ticket and the reason one does not want touting of football tickets is because of the mayhem and public disorder which can result from such touting. But that does not apply in cases such as cricket matches, Henley, Wimbledon or anywhere else. That is the reason the Government do not feel moved to go along the road suggested by the noble Lord, Lord Donoughue, because it is not a public order problem.
Viscount Mountgarret: Before my noble friend sits down perhaps he would be kind enough to explain to me —I seem to have very little brain at the moment—the difference between a tout for the sale of tickets at a football match and a person who touts the sale of tickets to the theatre, Ascot and so forth. Are they not all ticket touts?
Earl Ferrers: I can quite understand my noble friend finding that his brain cells are not working too well at this hour of the morning. I tried to explain the difference. Lord Justice Taylor indicated that a problem of public order may arise at a football match. At football matches sometimes the problem of fights and mayhem occur. That does not normally happen at Ascot—at least not while I have been there—or at "The Phantom of the Opera" or the ice dancing championships. That is the difference.
Lord Harris of Greenwich: When the noble Earl refers, for understandable reasons, to the report of Lord Justice Taylor, as he then was, and says that that is what differentiates football from any other sport, the obvious answer is that Lord Justice Taylor was invited to produce a report on Hillsborough; he was not asked to adjudicate on wider issues involving other sports. The implication therefore that Lord Justice Taylor was opposed to widening this area of concern is entirely mistaken.
Earl Ferrers: That is one of the most extraordinary interventions I think I have ever heard. Of course Lord Justice Taylor was not asked to look at the village cricket match; there was no outbreak of violence at the village cricket match. There was terrible violence at Hillsborough and that is why Lord Justice Taylor was asked to look at that specific problem. As a result of looking at it, he made various suggestions. He made suggestions for football in general because that is where the problems arise; they do not arise outside the theatre showing "The Phantom of the Opera".
Lord Harris of Greenwich: One must not get too excited. The fact that it is 1.25 a.m. is probably why the noble Earl is beginning to jump up and down. The point was clear. The noble Earl constantly said, "Lord Justice Taylor says this, that and the other", the implication being that he was making proposals in relation to football and was not making them in relation to other sports. The point is an obvious one: he was only asked to look at the situation involving football.
Lord Williams of Mostyn: Is not the true explanation that what the Minister said was perfectly

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correct; namely, that he is not objecting to the selling of tickets per se but to the consequences in a particular area? It seems to me—I am sorry to be helpful —that that is a sensible explanation. However—and now the barb—I seriously question, again seeking to be helpful, whether the Government want to make the kind of informal transaction to which I referred earlier a criminal offence. It is very similar to the example of the taxi driver with the two legitimate tickets that he wants to sell on reasonable grounds. If he was doing that in a place to which the public have access—namely, a taxi —and the noble Earl had been sufficiently misguided to yield to temptation and sufficiently in funds to be able to afford to yield, they would both have been committing an offence. I respectfully suggest that the provision does need looking at.
Viscount Mountgarret: I am sorry to intervene yet again, but is my noble friend really suggesting that we have to wait until there is a disturbance or unacceptable rowdyism at the All England Tennis Club, at the Marylebone Cricket Club, and so on, before Lord Justice Taylor or some other Lord Justice is invited to comment on that? We have the opportunity here in the format of these amendments to deal with the matter of touts in general. That is all I am trying to say. I ask my noble friend whether he would be kind enough to look at this rather more seriously as I and many others think it is a very serious matter.
Earl Ferrers: I do not want to keep on, as the noble Lord, Lord Harris, would say, jumping up and down., and I am not getting at all excited about it. I am just getting rather frustrated having to say the same thing time and time again because my noble friend does not seem to understand it. If people want to pay £120 for a ticket, they are entitled to pay £120 for a ticket. If my noble friend wishes to buy a pair of shoes from a shop, he can pay £50. If he wants to have them specially made, he can pay £1,500. The choice is his. If because he buys a ticket that is likely to cause a riot, as a result of which people will be hurt and damaged, we have to take other steps.
In all the instances which have been given—whether it is tickets for "The Phantom of the Opera", Wimbledon or any of these other places—there has been no evidence of public riot, public trouble or public mayhem, and therefore there is no point in introducing controls. In the case of Hillsborough, this matter was looked at. One forgets that when that happened football was going through a very dangerous time. Thank goodness it has become a lot better. One of the reasons for the problem was touting. People came to football matches because they hoped to buy a ticket, at some exorbitant price, and hoped to get in. If the touts were indiscriminate they might feed into one part of the football ground the supporters of the other side, and therefore there could be trouble. That is why it was suggested that touting should not take place.
I quite agree with the noble Lord, Lord Williams of Mostyn, that if one has a ban and one takes an absurd example like, if I may suggest so, the noble Lord did, of course one will produce an absurdity. But the point is that there should be a ban to prevent touting If he buys

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a ticket from my noble and learned friend the Lord Advocate and that creates an offence, that by itself sounds absurd. But that is because the noble Lord takes an absurd example.
Lord Donoughue: I want the Minister to concentrate on the points which I made and which he has not focused on. He seems preprogrammed to focus on Hillsborough and public mayhem. I believe that the criminal law is not only concerned with public mayhem. We have a good deal of consideration of legislation here which is not wholly public mayhem. It may be between two young individuals.
I was quoting something for which there is evidence —criminal behaviour in relation to ticket touting. That includes deception, fraud, physical intimidation and theft. It is irrelevant whether there are not 500 people doing it. What is relevant is that there is criminal behaviour in relation to touting. In some areas it encourages corruption in the provision of tickets which, if there was not touting, there would not be the temptation to corruptly make tickets available.
The Minister has focused on one narrow area. He has focused on the Taylor Report. I agree wholly with the noble Lord, Lord Harris, that Taylor was not asked to look at anything else. Had he been asked to look at tennis and Wimbledon he might have come up with further shocking revelations and recommendations. The fact that he did not look at it and the fact that he was looking at public mayhem mean that it is fairly marginal to the points which I am raising.
There are serious issues here of concern to the Committee; of concern for public order and the criminal law. The evidence is available. AH the authorities in these sports have asked for something to be done. In my experience these are not wild bodies. I have in mind Wimbledon, the MCC and even the authorities of rugby football. They wish for something to be done because they feel that there is a matter of serious concern which requires the law to intervene. We are proposing a simple way. It is being done for football. We are simply saying that there is no logical distinction at this level between football and the other sports. It is quite simple to apply this proposal to the others.
I found the Minister's reply very unhelpful. He may underestimate the amount of support for these amendments. That would be demonstrated if it were a more reasonable hour. I would like the Minister to examine the points made.
Earl Ferrers: I do not want to prolong the matter much longer, but I must say this. The noble Lord, Lord Donoughue, said that I was pre-programmed on to Hillsborough and public mayhem. I can only say that at this hour I am glad that I have been pre-programmed on to something because otherwise I would be completely speechless.
The fact is that matters such as forgery, theft and fraud are already criminal offences. So too is misleading information about the face value of a ticket, which is an offence under the Consumer Protection Act. Those matters are already offences. My understanding is that Wimbledon has done a great deal over the past few years

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to organise itself and its tickets so that there is as little touting as possible. I disagree with the noble Lord when he says that there is no logical distinction between football and other sports. I believe that there is, because it is only as regards football that there has been public order trouble. It has not occurred with rugger, cricket, rowing or tennis.
I shall consider all that has been said. I am bound to tell the noble Lord that the only reason why this measure is in the Bill is because of the public order part of it which does not appear in other forms of sport.
Baroness Seear: I do not want to prolong this matter. If it is to be considered any more I am on the side of the Minister on this occasion. Surely, we need a definition of touting. I can see a distinction between selling which arises out of illegal activity through fraud and stealing and so on and what is simply creating a market by having the foresight to buy up tickets and then sell them at a profit. It may not be a very nice habit but I see very great difficulty in banning it when other forms of making a market are perfectly legal.
Can we have a definition of touting, if we are to continue along this line, which distinguishes it from the straightforward process of forming a market and selling tickets at a profit because the middle man, so to speak, has anticipated a rise in price? That is how markets have always operated, is it not?
Earl Ferrers: The noble Baroness is quite right. I do not know whether it would be particularly helpful to get a definition of touting. What happens is a perfectly acceptable transaction.
If the authorities, at Wimbledon, Henley or anywhere else, are prepared to sell tickets at £10 and somebody else then sells those tickets at £100, it is perfectly logical to conclude that possibly they should not be sold at £10 but at £100 if that is what the market takes. That is where one enters the area of what the market will sustain. I do not believe it would be helpful to have a definition of touting: it is not the definition that is important but what actually happens. I come back to the argument I have used previously. Where touting takes place at football matches, that is where you get public order trouble. It does not happen in other places. It may be disagreeable to some if people are walking around saying, "Would you like a ticket for Wimbledon for £200?" However, they would not do it if somebody was not prepared to pay £200.
Lord Donoughue: I am still not at all happy with the Minister's response. I have explained why. I do not think it is simply a market operating. If you were to go to Wimbledon and see the touts operating, or operating as they operate in some other places, it is not just some happy little country market. There is often physical intimidation and the cornering of the market. At this late hour I will not seek to take the opinion of the Committee but I shall come back to the matter again at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 169 to 169ZD not moved.]
Clause 147 agreed to.
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 169ZE:
After Clause 147, insert the following new clause:
Touting for hire car services
(" .—(1) Subject to the following provisions, it is an offence, in a public place, to solicit persons to hire vehicles to carry them as passengers.
(2) Subsection (1) above does not imply that the soliciting must refer to any particular vehicle nor is the mere display of a sign on a vehicle that the vehicle is for hire soliciting within that subsection.
(3) No offence is committed under this section where soliciting persons to hire licensed taxis is permitted by a scheme under section 10 of the Transport Act 1985 (schemes for shared taxis) whether or not supplemented by provision made under section 13 of that Act (modifications of the taxi code).
(4) It is a defence for the accused to show that he was soliciting for passengers for public service vehicles on behalf of the holder of a PSV operator's licence for those vehicles whose authority he had at the time of the alleged offence.
(5) A person guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding level 4 on the standard scale.
(6) In this section—
"public place" includes any highway and any other premises or place to which at the material time the public have or are permitted to have access (whether on payment or otherwise); and
"public service vehicle" and "PSV operator's licence" have the same meaning as in Part II of the Public Passenger Vehicles Act 1981.
(7) In section 24(2) of the Police and Criminal Evidence Act 1984 (arrestable offences), after the paragraph (i) inserted by section 137 of this Act there shall be inserted the following paragraph—
"(j) an offence under section (Touting for hire car services) (touting for hire car services);".").
The noble Lord said: Amendments Nos. 167ZE and 178ZEA are complementary and, with your Lordships' permission, I shall deal with them together. The purpose of the proposed new clause to be inserted after Clause 147 is to enable the police to take effective action against the people who tout for passengers for vehicles acting as unlicensed taxis. This is a serious problem, particularly in London.
There are two aspects to the problem. The more serious is the tout who preys on strangers and tourists, especially at railway stations and at airports, in particular Heathrow. Such people set out to fleece their victims and if they protest about the charges that are eventually levied, then the passengers are likely to lose their luggage, if nothing worse. The police at the London stations and at Heathrow have struggled to deal with the problem. They have had a degree of success but it has been at a high cost in resources. The aim of the amendment is to focus on this activity and to simplify the procedure of dealing with the offence.
The other aspect is where the touts do not own the cars concerned but offer the services of minicabs or private hire vehicles in the street or where the vehicle drivers themselves offer their car services outside pubs and clubs at closing time. In those circumstances the car is being used as an unlicensed taxi and there is always a risk that the driver may have no valid insurance. If something goes wrong and the passenger is injured he may have no redress against a person who is not insured. That is clearly undesirable and the clause would seek to make it an offence. The complementary amendment,

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Amendment No. 178ZEA, would mean that the new clause came into force immediately on the passing of the Bill.
Lord Harris of Greenwich: I am in favour of the amendment. Undoubtedly, there is a great deal if dishonesty among a limited number of people who are involved in this trade. As the noble and learned Lord said, the problem is significant, in particular in London and at Heathrow. Such people prey upon visitors, whose knowledge of English is inadequate, and present them with bills of a monstrous size.
I am entirely persuaded of the desirability of the amendment, even though it has the effect of lengthening an already very long Bill.
On Question, amendment agreed to.
Clause 148 agreed to.
[Amendment No. 169A had been withdrawn from the Marshalled List.]
[Amendment No. 170 not moved. ]
Schedule 9 [Minor Amendments]:
Lord Stanley of Alderley Lord Stanley of Alderley moved Amendment No. 170A:
Page 151, line 49, at end insert:
"Forfeiture of dogs.
4B.—(1) In section 4 above (provision as to seizure and forfeiture) there shall be added "any dog used for the purpose of committing or facilitating the commission of the offence" to the list of items which a police constable may seize, and which a court may direct be forfeited.
(2) Where a dog has been used or was present at the commission of an offence, the court, on convicting the offender, may in addition or in substitution for any other punishment, make either or both of the following orders—

(a) an order for the destruction or other disposal of the dog;

(b) an order disqualifying the offender, for such period as it thinks fit, for having custody of a dog.

(3) Any dog which has been seized and removed by a constable under section 4 may be retained in accordance with regulations made by the Secretary of State under subsection (4) below.
(4) The Secretary of State may make regulations regulating the retention and safe keeping of any dog seized under section 4, and may prescribe charges in respect of the removal, retention, disposal and destruction of dogs.
(5) Any authority shall be entitled to recover from a person from whom a dog has been seized such charges as may be prescribed in respect of the removal, retention, disposal and destruction of the dog by the authority.
(6) Any charges under subsection (5) above shall be recoverable as a simple contract debt.
(7) Any authority having custody of dogs under regulations under subsection (4) above shall be entitled to retain custody until any charges under subsection (5) are paid.
(8) Any person who has custody of a dog in contravention of an order under subsection (2) above is guilty of an offence and is liable on summary conviction to a fine not exceeding level 3 on the standard scale.").
The noble Lord said: Sadly, many Members of the Committee will be only too familiar with the problems of poaching and illegal coursing and the violence associated with that. These poachers are not the charismatic characters that history portrays. They are ruthless, cruel and selfish. They damage property during their illegal activities. They inflict cruelty on the deer or the hare because they seldom kill cleanly. They are

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particularly violent, often threatening and assaulting anyone attempting to control them, including the police. In fact, they disturb the peace.
The amendment would allow dogs, usually of the lurcher type, which have been used for poaching to be seized by the police and, if the court so rules, to be destroyed. That would be a real deterrent because the lurchers used are highly-prized, demanding high prices not least because large sums of money are waged on them. Therefore, large fines are a relatively small deterrent compared with the seizure of the dogs and the possible destruction of the prized lurchers.
Moreover, if the police have to hold the dogs that they seize the owners would be more than prepared to pay for their kennelling in order to try to gain repossession. The amendment to the Game Laws (Amendment) Act 1960 would bring the law into line with the Protection of Badgers Act 1992. Section 13(1) (a) of that Act states that the court may make:
"an order for the destruction or other disposal of the dog".
I suggest that what is right for the badger is also right for the deer or the hare. The amendment is strongly supported by the NFU, the CLA and the RSPCA. I believe that my noble friend Lord Ferrers, if he were here, would find that the police support the amendment because it provides that they do not have to pay for the kennelling of the seized dog.
I realise that due to the earliness of the hour the Committee will not now wish to discuss the matter in detail. I very much hope that my noble and learned friend Lord Rodger will be prepared to say that he will consider this increasingly serious problem. I beg to move.
Viscount Mountgarret: I support the amendment tabled by my noble friend Lord Stanley. I am sure that not many Members will speak on it tonight. However, I hope that my noble and learned friend realises that there is a strong belief that these provisions should be included in the Bill. Instead of digging in their toes, as I understand the Government have been inclined to do, it would be helpful if they would think more seriously about this matter between now and Report stage.
I do not wish to waste the time of the Committee by citing examples, but it must be obvious that where a fairly unpleasant animal is taken by somebody in order to commit an offence—whether it is a break-in, poaching or whatever—it has a direct effect on those activities. It is wrong that those people should not be penalised if caught. I hope that this amendment will receive a great deal of consideration.
1.45 a.m.
Earl Peel: I too support the amendment. I believe that my noble friend has identified a problem which is increasing at an alarming rate in rural areas. It is occurring not just in the urban conurbations; it is a problem which is reaching way into the countryside. There are far too many cases in which employers and employees, when confronting gangs of those people, are met with increasing levels of violence.
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The laws on poaching in the Game Act are complicated and, in many cases, outdated. However, I believe that this amendment gives us the opportunity to put right what I would describe as an obvious error without opening a can of worms. It seems to me quite logical.
I should like to raise another point in connection with game management. That is an extremely precise business. The culling of deer is conducted indiscrimi-nately by those individuals with their dogs. That makes it extremely difficult for the owner of the land to manage his deer in a way which is sustainable both in terms of quantity and quality. That is a very important point which should be taken into account when considering this matter. The same also applies to hares. Although it has been demonstrated clearly that the demise of hares has been caused largely by road accidents and what I may describe as unsympathetic cropping, there are areas in which hare populations are very low indeed and where they should not be killed by any method whatever, whether through poaching or non-poaching.
My noble friend has identified a problem which needs to be dealt with. I am sure that the only effective way in which to prevent the problem is through the control of the dogs. The dogs are the mainstay of the poachers. Although we welcome the increase in fines for poaching provided by the Government, I do not believe that that will be enough. I am quite convinced that my noble friend is right and I urge the Committee to support the amendment.
Lord Kimball: I hope that my noble and learned friend the Lord Advocate will look favourably upon the amendment moved by my noble friend Lord Stanley. This is a particular problem throughout the eastern counties and Lincolnshire where there is a host of disused airfields to which those people drive their vehicles. They stage illegal coursing matches with illegal betting. A large number of police are needed to disperse them. By the time sufficient numbers have arrived to try to disperse them, they have finished their sport, killed their hares, paid their debts and vanished. Those people are extremely violent and intimidating, and it is a growing and serious problem.
Lord Mancroft: I support the amendment. Points have been made which cover the issue very well indeed. This is a serious problem; it is not a marginal problem. It is a growing problem and most important, the solution which my noble friend suggests—the confiscation of the dogs—could nip the problem in the bud.
It would be dreadful were we to miss the present opportunity to deal with the problem. In five or 10 years time it may become a major, serious problem and then we should have to look again at the matter. The present Bill provides us with an opportunity to deal with a problem which will obviously worsen if it is not dealt with. The amendment provides a sensible and easy solution. There is no break in principle and I hope that the Government will look very seriously at this amendment.
The Viscount of Oxfuird: I support my noble friend's amendment from the point of view that there is

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a genus of the wolf coming into this country. It may be only 0.25 per cent. of the dogs breeding but the genus of the wolf must be controlled, not necessarily from the point of view of its containment but from the point of view of awareness. If that continues, we must be very aware of anything that happens in the future. We need the support of the amendment.
Lord Monkswell: I am sorry to forestall the Minister before his reply, but we have had a most interesting debate with many contributions. However, I wonder whether the amendment actually attacks the symptoms of a problem rather than its causes. During the course of the debate, we heard that poaching is a serious problem; that dogs are involved, and also that it is an increasing problem. But have Members of the Committee opposite considered why poaching is an increasing problem? I suggest that part of the reason is that the people involved in it have no other means of gainful employment.
As in so many spheres of illegal activity, part of the reason for the engagement of people in such activity is due, unfortunately, to the fact that we have mass unemployment and high levels of poverty in this country. It may be useful for noble Lords opposite to consider what could be done about those problems rather than just introduce new laws and penalties to tackle what I see as being the symptoms and not the causes of the problem with which we are beset.
Earl Peel: The noble Lord opposite may well have a point when he states the reasons for people wanting to go into the countryside and carry out such activities. However, with the greatest respect to the noble Lord, I do not think that poverty is really an issue in this question. Some of the prices that are paid for such dogs are very considerable. Moreover, the amount of betting that takes place between poachers is also at a very high level. Therefore, whereas the noble Lord may have a point about the reasons why some people cannot employ themselves in other matters, I can assure him that poverty is not a reason in this case.
Lord Rodger of Earlsferry: I hope that Members of the Committee will forgive me if I do not venture at this late hour into a deep, philosophical debate as to the causes of the matter, but simply address the particular issue raised by my noble friends in the amendment. As has been acknowledged, the position is that paragraphs 1 and 3 of Schedule 9 contain provisions which increase the penalties for poaching and also introduce powers in connection with the forfeiture of vehicles. It must be acknowledged that they are very substantial measures to deal with the kind of behaviour with which noble Lords are concerned.
The question is whether one should go further and introduce a particular provision such as that contained in the amendment. According to my information, I have to say that the police would not actually welcome the power of seizure contained in the amendment. In addition, a power exists at present in terms of the Powers of Criminal Courts Act 1973 to forfeit dogs if they are used for the commission of a crime. Therefore,

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I believe that Members of the Committee would wish to reflect on whether it is necessary in the circumstances to introduce such an amendment.
The amendment contains other provisions—for example, to disqualify people from the ownership of a dog—which seem to go too far. It is one thing perhaps to disqualify someone from owning a dog if that person has been cruel to a dog; but to disqualify him from owning any dog in these particular circumstances seems, prima facie, to go too far. Nonetheless, I have heard what the Committee has said; and without giving any undertaking at all as to what the outcome of my reflection will be, I shall bear in mind what has been said and will reflect upon it between now and Report.
Lord Stanley of Alderley: First, I wish to thank all Members of the Committee for their support, particularly at this early hour of the morning. As my noble friends Lord Peel,, Lord Mancroft and Lord Kimball have said, the only way to deal with this problem is actually to seize the person who is committing the crime, which in this case is the dog. Very often a gun is being used, in which case it can be seized, but in this case one cannot seize the dog if it has acted incorrectly or outside the law. I am afraid that the noble Lord, Lord Monkswell, did not listen to my opening remarks—I understand how easy that is to do —but he was put right by my noble friend Lord Peel.
As regards my noble friend on the Front Bench, I must say that he did not answer the vital question, which is: if it was right for the Badgers Act in 1992 why was it not right for the game Act in 1960? My information is that the police would welcome this power provided they do not have to pay for it. The amendment deals with that. I shall certainly check (as I am sure my noble and learned friend will) with the police between now and Report. In the meantime, I am glad that my noble: and learned friend said he will look at the measure again. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 170AA:
Page 153, leave out lines 19 to 23 and insert:
("(2) In Schedule 2 to the Firearms (Northern Ireland) Order 1981 (punishment of offences under the Order)—

(a) in the entry for Article 6(1) (possessing or distributing prohibited weapons or ammunition), in the entry in column 4 specifying the punishment on conviction on indictment, for the words "5 years" there shall be substituted the words "10 years"; and

(b) in the entry for Article 6(1 A) (possessing or distributing other prohibited weapons)—

(i) in the entry in column 4 specifying the punishment on summary conviction, for the words "3 months" there shall be substituted the words "6 months"; and

(ii) in the entry in column 4 specifying the punishment on indictment, for the words "2 years" there shall be substituted the words "10 years".").

The noble and learned Lord said: This amendment will ensure that offences relating to the possession or use of prohibited weapons in Northern Ireland continue to be dealt with on a similar basis to those offences in Great Britain. I beg to move.
Lord Harris of Greenwich: Yes, but we are talking about a remarkable acceleration in terms of the

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penalties. Under heading (b) of this amendment a sentence of three months becomes six months; two years becomes 10 years. Under heading (a) the punishment for conviction on indictment goes up from five to 10 years. Certainly in the light of recent occurrences in Northern Ireland one is disposed to agree with propositions of this kind.
I apologise for being tediously repetitive, but I draw the attention of the Government Chief Whip, who is present, to the fact that it is now nearly two o'clock in the morning and we are doubling a whole series of criminal penalties. I say this to him in the most restrained tones—there are not 30 people here in the Chamber, I can assure him of that. If my noble friend and I now moved that the House be resumed, the business this evening would be suspended because there would not be a quorum present. He is sitting now entirely as a result of the restraint of those on these Benches who have not been consulted about the way in which the Government have made their business plans. This is wholly unacceptable behaviour for which he must accept a measure of responsibility. I hope he will reflect on this matter between now and the Report stage because if he does not in the future my noble friends and I will move that the House be resumed and he will find himself in a rather disagreeable situation.
We work together normally in this Chamber in a rather satisfactory manner. I hope that will continue but that will only continue if proper consultations take place, and on this occasion I am afraid they have not taken place. But coming back to the point of substance, I would be grateful if the noble and learned Lord the Lord Advocate would just respond to this because I am not in any sense challenging the desirability of this measure but I find the doubling of the penalties a matter which deserves slightly greater attention than it has so far received.
2 a.m.
Lord Rodger of Earlsferry: The purpose is to keep this particular piece of legislation for Northern Ireland in line with the position which will obtain in the rest of Great Britain. This particular matter has not been dealt with appropriately for Northern Ireland, and therefore this amendment is put forward.
On Question, amendment agreed to.
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 170AB:
Page 154, line 10, at end insert:
"Anonymity of victims of certain offences
. In Section 4 of the Sexual Offences (Amendment) Act 1976 (anonymity of victims in rape etc. cases), after subsection (6) there shall be inserted the following subsection—
"(6A) For the purposes of this section, where it is alleged or there is an accusation that an offence of incitement to rape or conspiracy to rape has been committed, the woman who is alleged to have been the intended victim of the rape shall be regarded as the alleged victim of the incitement or conspiracy or, in the case of an accusation, as the complainant.".").
The noble and learned Lord said: The purpose of the amendment is to extend the protection which is provided of anonymity for victims of rape to situations

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where the person concerned is not actually a victim of rape but is the victim either of the crime of incitement to rape or of a conspiracy to rape. In those circumstances, where the crime itself is not rape but incitement or conspiracy to rape, it seems that the existing protection of anonymity afforded in cases of rape should be extended to people in that position. I beg to move.
On Question, amendment agreed to.
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 170B:
Page 154, line 41, at end insert:
("The amendments made by this paragraph shall cease to have effect on the coming into force of the amendments made by paragraph 22 of Schedule 4 to this Act.").
The noble and learned Lord said: In moving Amendment No. 170B, I should like to speak also to Amendment No. 170C. Both amendments are consequential on the provisions in Clause 40 and Schedule 4 to replace committal proceedings with a transfer for trial procedure. The substantive clause stands part of the Bill. I ask the Committee also to accept these essential amendments. I beg to move.
On Question, amendment agreed to.
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 170C:
Page 155, line 15, at end insert:
("The amendments made by this paragraph shall cease to have effect on the coming into force of the amendments made by paragraph 23 of Schedule 4 to this Act.").
On Question, amendment agreed to.
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 170D:
Page 156, line 30, at end insert:
("Confiscation orders in drug trafficking cases: variation of sentences
. In Section 1A of the Drug Trafficking Offences Act 1986 (inserted by Section 8 of the Criminal Justice Act 1993) (power of court to postpone determinations required before a confiscation order can be made), after subsection (9) there shall be inserted the following subsection—
"(9A) Where the court has sentenced the defendant under subsection (7) above during the specified period it may, after the end of that period, vary the sentence by imposing a fine or making any such order as is mentioned in section 1(5) (b) (ii) or (iii) of this Act so long as it does so within a period corresponding to that allowed by section 47(2) or (3) of the Supreme Court Act 1981 (time allowed for varying a sentence) but beginning with the end of the specified period.".").
The noble and learned Lord said: In speaking to Amendment No. 170D, I shall speak also to Amendments Nos. 170E and 171G. Again, these are purely technical amendments. They rectify an unintended and unwanted consequence of the postpone-ment provisions in the Criminal Justice Act 1993 and in the Northern Ireland (Emergency Provisions) Act 1991.
Unless the Members of the Committee wish, at this time of night I shall not detain the Committee with too much detail. In brief, the amendments ensure that the courts will be able to impose a fine or to make a forfeiture order in those cases where they decide to postpone the making of a confiscation order. There are various reasons why it may be appropriate to postpone the actual making of a confiscation order. The present terms of the legislation make it impossible for the courts

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to impose, for example, a fine or an order of forfeiture. The purpose of the amendments is to enable the courts to impose a fine or order of forfeiture in those circumstances. I beg to move.
On Question, amendment agreed to.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 170DA:
Page 157, line 5, at end insert:
("Competence of children
. In Section 33A of the Criminal Justice Act 1988 (inserted by Section 52(1) of the Criminal Justice Act 1991), after subsection (2) there shall be inserted the following subsection—"(2A) A child's evidence shall be received unless it appears to the court that the child is incapable of giving intelligible testimony." ").
The noble Lord said: I declare an interest. I am a trustee of the NSPCC, which for a number of years has been seriously troubled by the difficulties of the admissibility of children's evidence, particularly when they are complainants in allegations of sexual abuse. I ought to say how grateful we are to the noble Earl the Minister, who has been helpfulness itself in assisting with the drafting of the amendment.
The short purpose of the amendment is virtually self-evident. It is to enable a court to hear a child's evidence where that child can give an intelligible account of relevant events. It is then up to the court to determine what weight to give that evidence in the light of that evidence and all other material before the court. In recent years there have been varying decisions by courts about the admissibility of children's evidence. With the assistance of the Minister, the amendment is designed to give children an appropriate opportunity to give their evidence. I beg to move.
Lord Rodger of Earlsferry: I am pleased to be able to accept the amendment which the noble Lord moved. It replaces an earlier attempt to put the meaning of Section 52 of the Criminal Justice Act 1991 beyond doubt. This version is an improvement and we are happy to accept it.
On Question, amendment agreed to.
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 170E:
Page 157, line 26, at end insert:
("Confiscation orders: variation of sentence
. In Section 72A of the Criminal Justice Act 1988 (inserted by Section 28 of the Criminal Justice Act 1993) (power of court to postpone determinations required before a confiscation order can be made), after subsection (9) there shall be inserted the following subsection—
"(9A) Where the court has sentenced the defendant under subsection (7) above during the specified period it may, after the end of that period, vary the sentence by imposing a fine or making any such order as is mentioned in Section 72(5) (b) or (c) above so long as it does so within a period corresponding to that allowed by Section 47(2) or (3) of the Supreme Court Act 1981 (time allowed for varying a sentence) but beginning with the end of the specified period.".").
On Question, amendment agreed to.
Lord Tordoff Lord Tordoff moved Amendment No. 170F:
Page 157, line 26, at end insert:
("Infringement of copyright: increase in powers of seizure
( ) After Section 109 of the Copyright, Designs and Patents Act 1988, there is inserted the following section—
"Infringement of copyright: increase in powers of seizure.
109A.—(1) The functions of a local weights and measures authority include the enforcement in their area of section 107 of this Act.
(2) The following provisions of the Trade Descriptions Act 1968 apply in relation to the enforcement of this section as in relation to the enforcement of that Act—

Section 27 (power to make test purchases),

Section 28 (power to enter premises and inspect and seize goods and documents),

Section 29 (obstruction of authorised officers).

Section 33 (compensation for loss &c. of goods seized under s. 28).

(3) Subsection (1) above does not apply in relation to the enforcement of Section 107 in Northern Ireland, but the functions of the Department of Economic Development include the enforcement of that section in Northern Ireland.
For that purpose the provisions of the Trade Descriptions Act 1968 specified in subsection (2) apply as if for the references to a local weights and measures authority and any officer of such an authority there were substituted references to that Department and any of its officers.
(4) Any enactment which authorises the disclosure of information for the purpose of facilitating the enforcement of the Trade Descriptions Act 1968 shall apply as if section 107 was contained in that Act and as if the functions of any person in relation to the enforcement of these sections were functions under that Act." ").
The noble Lord said: I endorse what my noble friend Lord Harris of Greenwich said. It is ludicrous that at five past two in the morning we should be debating matters which although perhaps not of great criminal importance are of importance to parts of the industry of this country that I believed the Government were anxious to support.
I have to say that were rny late lamented friend Lord Lloyd of Kilgerran present he would have moved the amendment with a considerable amount of knowledge, which I do not have, and with much greater force. The Copyright, Design and Patents Act 1988 introduced criminal offences where copyright was infringed because the Government recognised how serious the offence was. Copyright infringement is a matter of grave concern to a number of companies and organisations in this country. Unfortunately, that Act gives powers only to the police to act, and it is proper that the police should act.
Until early this year the trading standards officers were able to rely on their powers under the Trade Descriptions Act 1968 to seize counterfeit goods. However, I understand that under a decision in Regina v. Price in the Divisional Court earlier this year the use by a trader of a disclaimer provides a defence under the Trade Descriptions Act. As a result, trading standards officers have been unable to take action under that Act.
That is not such a problem where trade mark goods are involved. They have a specific trade mark and it can be defended. But it is a problem with general packaging and art work which sells a number of goods—it applies to tapes and CDs—where the trade mark is routinely removed by traders. The content of the tape or compact disc is important.
If this important part of our trade in this country, in particular our export trade, is to prosper trading standards officers need to be empowered to search and to seize under Section 28 of the Trade Descriptions Act as they were before the Regina v. Price decision to which I have referred. No additional resources will be required if the amendment is accepted.
At this stage this is largely a probing amendment. However, I hope that the Government are prepared to accept that the principle is correct. If the amendment as drafted is not acceptable to the Government I hope that they will either put forward an amendment themselves or will give us assistance in putting forward a proper amendment at a later stage. I beg to move.
Lord Rodger of Earlsferry: The Government are sympathetic towards the concern underlying the noble Lord's amendment. We are aware of the importance of the battle against such crimes as he mentioned and that in some respects there is an anomaly. Some matters can be dealt with by trading standards officers and others, which are very close in kind, cannot. Therefore, we think this is a matter which is worth examination and we would wish to consider the amendment further. In the light of that, perhaps the noble Lord will withdraw it at this stage.
Lord Tordoff: I am grateful to the noble and learned Lord. Perhaps we may have discussions before we reach the next stage and if the Government would come forward with an amendment, no one would be more delighted than I. In the light of what has been said, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 171 to 17IB not moved.]
Lord Harris of Greenwich Lord Harris of Greenwich moved Amendment No. 171BA:
Page 159, line 45, leave out paragraph 35.
The noble Lord said: The issue which is raised in this amendment relates to curfew orders. This part of Schedule 9, paragraph 35, relates to a power given to the Secretary of State to introduce the curfew orders when, as the schedule puts it:
"arrangements for monitoring the offender's whereabouts are available in the area".
That means electronic tagging. We discussed the matter during the passage of what became the Criminal Justice Act 1991. As I indicated on that occasion, I did not approach the issue in a particularly negative spirit, simply on the grounds that those of us who argue that the prison population is far too large should not immediately rule out some alternative proposal which could have the effect of limiting the size of the prison population.
However, the more one looked at the American experience which was argued by the enthusiasts for change, the more sceptical one became. The Florida case was perhaps the most relevant. When one considered the cases there where people had been tagged, it was clear from the outset that they were the kind of people who would not have been remanded in custody in this country. I cite the Florida experience as a simple example, it did not seem to me, when one examined the matter in detail, to provide a strong case for moving in that direction.
As the noble and learned Lord the Lord Advocate will have been told, the last Home Office experiment involved three courts: Tower Bridge, Tyneside and Nottingham. The Home Office hoped at that stage that there would be 150 tags. In fact, there were only

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one-third that number. Forty-nine individuals were covered and one was tagged twice, making the number 50. In 29 of the cases, the individuals either breached their house arrest condition or they were charged with further offences. In all, there were 217 violations—in other words, more than four for every person who was tagged. There were 159 equipment failures or more than three for every person tagged. That seems to me a pretty high casualty rate. I look forward to the explanation that the noble and learned Lord will give us as to how, given this sad story, it would be appropriate to move further in this direction.
In the light of the experience that I have described the Home Office evaluation report used remarkably restrained language. It stated:
"Magistrates and judges did not seem to have much confidence in the applicability of electronic monitoring as an alternative to a remand in custody and commented on the difficulties of finding suitable candidates for it. They were willing to countenance a trial with a limited timespan, but if monitoring were to be introduced on any national basis then much greater confidence in the system on the part of both of these groups would be vital".
I am sure that the noble and learned Lord will tell us that the situation has been transformed since that unhappy experience. He will assure us that the manufacturers have dramatically improved the quality of their tagging devices. Well, they would—wouldn't they?—because there are some potentially very lucrative contracts involved.
We can see remarkably little justification for this policy. So far it has involved a substantial waste of public money. It is seen by many to have been little more than an expensive folly. It seems to me that on good value-for-money grounds it should be rejected. I beg to move.
2.15 a.m.
Lord Rodger of Earlsferry: The noble Lord, Lord Harris, said that he had not argued against this matter as a matter of principle when it came before your Lordships previously, but rather as a matter of practicality. Although with his remarkable powers of foresight he has predicted all that I have to say and has therefore perhaps made my remarks redundant, I think that nonetheless I should briefly give the position.
As the noble Lord will realise, the position is that the power to use curfew orders exists in legislation in the 1991 Act as it stands, so this Bill does not introduce that power. He will also of course recall that it was used, as he explained, in the previous experiment in connection with bail. The particular matter in the Act relates it not to bail but to a sentence. There is that difference.
We then come to the part that is all too predictable: that it is the case—however remarkable the noble Lord may find it—that technology has moved on in the intervening years. The position is that over those intervening years the technology has been used in the United States, not just in the jurisdiction to which the noble Lord referred. According to Home Office figures, as many as 200,000 offenders have been tagged over that period in the United States. During that time the technology has been developed. In those circumstances

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it is anticipated that the technology is now much more satisfactory than, admittedly, it was on the previous occasion when the experiment was conducted.
It is for that reason that it is desired to proceed with testing the technology. It is also for that reason that this particular provision in paragraph 35 of Schedule 9 is contained in the Bill. As the Committee will see, it in fact allows the introduction of curfew orders over different parts of the country to be introduced at various times. That provision is designed in order to allow the use of the technology to be tested in different places.
It is anticipated that there will be three trial areas. One will be Manchester, because there is a high density of population there and rather a lot of high-rise building. That will be one particular aspect of the test. Another area is Reading, where again there is a high density of population, but low-rise building. The third area will be Norfolk, because it is a rural area. In that way it is anticipated that we shall have a representative sample.
So the purpose of this particular paragraph is to allow the matter to be tested in various areas and not to be introduced and used throughout the country at the one time. In the light of those experiments it will be seen whether this measure works—as we hope that it will work—efficiently. In that event, it will provide a sentence which will be useful and allow us to dispose of cases without necessarily using custody, which I am sure that the noble Lord would not wish to do unnecessarily.
Lord Tordoff: I wonder whether the noble and learned Lord could assist the Committee. I am no longer a member of your Lordships' Science and Technology Committee and I suspect that not many members of that committee are in the Chamber tonight. For the record, I wonder whether the noble and learned Lord could assist the Committee by telling us the way in which the technology has improved. This is a learned Chamber in these matters and just to say that it has improved is perhaps not adequate. Could we have a description of the way in which the technology has improved in this matter?
Lord Rodger of Earlsferry: I do not think that I can give the Committee details of that. In America over the years it has been used. As a result, it has been found to be more reliable over that period. Its size has been reduced and in that way it has been found able to be used in a flexible way. For example, it is waterproof and so on and therefore people can wear it to the bath or in the shower and so on. In many ways it is more reliable. It does not need to send out a continuous signal and that kind of thing. In various ways it has been improved over the years. I cannot give the noble Lord the exact details, but if I can find any more detail on the matter I shall write to him.
Lord Harris of Greenwich: I am afraid that that does not persuade us that this is a sensible thing to do. The noble and learned Lord has said that the last experiment or project—call it what one will —took place in relation to bail. That is right. It was an abject failure. So, on the basis of an abject failure we are now to extend the scheme; on the basis of a rather less

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adequate description (if the noble and learned Lord will forgive me for saying so) of that huge advance in technology, which is supposed to have taken place, we are to extend it.
It seems to me that this is a piece of ideological nonsense. A junior Minister in the Home Office was the enthusiast for it. I certainly did not oppose the principle of an experiment. But the experiment was a failure. On the basis of the failure of the experiment, the Government have now decided to extend the scheme still further. That seems to me to be wholly wrong and I should like to test the opinion of the Committee.
2.23 a.m.
The Chairman of Committees (Lord Ampthill):The Question is, Whether the said amendment (No. 171BA) shall be agreed to? As many as are of that opinion will say "Content"; to the contrary "Not-Content". Clear the Bar.
Division called.
The Chairman of Committees: My Lords, Tellers for the Contents have not been appointed pursuant to Standing Order No. 51. A Division therefore cannot take place, and I declare that the Not-Contents have it.
I apologise to the Committee. Apparently I misread the note. I thought tellers for the Not-Contents were appointed and therefore I said the Not-Contents have it. The Not-Contents have it.
2.27 a.m.
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 171BB:
Page 161, line 50, at end insert:
("Discretionary life prisoners
. —(1) In Section 34 of the Criminal Justice Act 1991 (duty to release discretionary life prisoners after they have served the relevant part of their sentence and the Parole Board has. directed their release)—

(a) in subsection (6), for the words after "sentence" there shall be substituted the following words—

"—

(a) account shall be taken of any corresponding relevant period; but

(b) no account shall be taken of any time during which the prisoner was unlawfully at large within the meaning of Section 49 of the Prison act 1952 ("the 1952 Act")."; and

(b) after that subsection, there shall be inserted the following subsection-

"(6A) In subsection (6) (a) above, "corresponding relevant period" means the. period corresponding to the period by which a determinate sentence of imprisonment imposed on the offender would fall to be reduced under Section 67 of the Criminal Justice Act 1967 (reduction of sentences to take account of police detention or remands in custody).".
(2) In paragraph 9(2) of Schedule 12 to that Act (application of early release provisions of the Act to existing life prisoners), after paragraph (b) there shall be inserted the following paragraph, preceded by the word "and"—
"(c) in Section 34 of this Act, paragraph (a) of subsection (6) and subsection (6A) were omitted.".").
The noble and learned Lord said: Amendment No. 171BB allows remand time to be taken into account when calculating the "relevant part" of a discretionary life sentence. Remand time counts towards determinate sentences and was always taken into account in

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calculating tariffs in discretionary life sentence cases before the introduction of the new statutory arrange-ments governing these sentences in 1992. These arrangements, however, did not include any provision for that established practice to continue. It is desirable that it should continue and the amendment simply puts right that position. I beg to move.
On Question, amendment agreed to.
[Amendment No. 171BC not moved.]
[Amendments Nos. 17IC to 171E had been withdrawn from the Marshalled List.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 171F:
Page 162, line 42, leave out paragraph 44.
The noble Lord said: I beg to move.
2.30 a.m.
On Question, Whether the said amendment (No. 171F) shall be agreed to?
Their Lordships divided: Contents, 2; Not-Contents, 14.

Division No.4

CONTENTS

Morris of Castle Morris, L.

Tordoff, L. [Teller]

[Teller]

NOT-CONTENTS

Annaly, L.

Clanwilliam, E.

Brougham and Vaux, L.

Ferrers, E.

Burnham, L.

Goschen, V.

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Harlech, L.

St. Davids, V.

Mackay of Clashfern, L. [Lord

Strathmore and Kinghome, E.

Chancellor.]

[Teller.]

Oxfuird, V.

Trumpington, B.

Rodger of Earlsferry, L.

Ullswater, V. [Teller.]

The Chairman of Committees: Before announcing the result of this situation, I should report to the House that as regards Amendment No. 171BA, it was told to me first of all that Tellers for the "Not-Contents" had not been appointed and then that Tellers for the "Contents" had not been appointed. It seems that Tellers for both sides were appointed and therefore the matter has been unsatisfactorily resolved.
I now turn to Amendment No. 171F. It appears that fewer than 30 noble Lords have voted. In accordance with Standing Order No. 55 I declare the Question not decided, and, pursuant to the Standing Order, the House will now resume.
House resumed.

State Hospitals (Scotland) Bill [H.L.]
Returned from the Commons agreed to.

Local Government (Wales) Bill [H.L.]
Returned from the Commons agreed to with amendments and with a privilege amendment. The amendments ordered to be printed.
House adjourned at twenty-three minutes before three o'clock.