Sitting of 21 May 1976

Preamble
The House met at Eleven O'clock
PRAYERS
[Mr. Speaker in the Chair]
PRIVATE BUSINESS

  BRITISH TRANSPORT DOCKS (FELIXSTOWE)BILL
  Order for Third Reading read.
  To be read the Third time upon Monday next at Seven o'clock.

PETITION

  High Court Attendances (Officers of the House)
  Mr. John Cope: Mr. Speaker, I rise to present a petition from John Howard Burham Roney. In view of the fact that I shall seek to move a motion arising from this petition, I request that it be read by the Clerk.
  The Clerk of the House read the petition which was as follows:
  To the Honourable the Commons of the United Kingdom of Great Britain and Northern Ireland in Parliament assembled:
  The humble Petition of John Howard Burham Roney of 42–45 New Broad Street London EC2M 1LY Solicitor on behalf of Laker Airways Limited of Normandy House St Helier Jersey, Channel Islands, the Plaintiff in the action in the Queen's Bench Division High Court of Justice, No. 1976 L. No 883 against the Defendant Department of Trade, which said action is listed for hearing in London on Monday the 24th day of May 1976
  Showeth
  First
  That your Petitioner's claim in the action is for

  1. A Declaration that the guidance and directives given to the Civil Aviation Authority by the Secretary of State for Trade in the terms of or pursuant to the White Paper, "Future Civil Aviation Policy" (1976) Cmnd. 6400 are ultra vires the powers granted to the Secretary of State for Trade and further are contrary to the provisions of section 3(1) of the Civil Aviation Act 1971; and

  2. A Declaration that the Class A Licence No. A14011 granted to the Plaintiffs by the Civil Aviation Authority in respect of the air
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  service commonly known as "Skytrain" commencing on 1st January 1973 and expiring on 31st December, 1982, (subsequently redesignated No. 1 B/24214) is valid and not revoked and remains in full force and effect; and

  3. A Declaration that there are no grounds for withdrawing or amending the Designation of the Plaintiffs for operations on United Kingdom Route 2 of the Annex to the Agreement relating to air services between the United Kingdom and the United States of America signed at Bermuda on 11th February 1946, as amended by Exchange of Notes on 27th May, 1966, the said Designation having been made by Note dated 26th February, 1973, on behalf of the Defendants

  Second:
  That reference is desired to be made at the hearing of the action to the following Reports of Debates of your Honourable House:
  1975 Volume 896 No. 168 Columns 1502 to 1512 inclusive 29th July
  The Secretary of State for Trade and President of the Board of Trade (Mr. Peter Shore)

  M mr. Warren

  Mr. Donald Stewart

  Mr. Dan Jones

  Mr. Tebbit

  Mr.Dalyell

  Sir G. Sinclair

  Mrs. Thatcher

  Mr. Cryer

  Mr. Monro

  Volume 896 No. 170 Part II Columns 2307 to 2343 inclusive 31st July

  Mr. Kenneth Warren

  The under-Secretary of State for Trade (Mr. Clinton Davies)

  Mr. Norman Tebbit

  Mr. Michael Neubert

  1976 Volume 906 No. 57 Columns 635 to 696 inclusive 26th February
  The Secretary of State for Trade and President of the Board of Trade (Mr. Peter Shore)

  Mr. Speaker

  Mr. Tim Renton

  Mr. Churchill

  Mr. Stephen Hastings

  Mr. Terence Higgins

  Mr. Neil Marten

  Mr. Kenneth Warren

  The Under-Secretary of State for Trade (Mr. Clinton Davis)

  Mr. Norman Tebbit

  Mr. Donald Stewart

  Mr. John Stonehouse

  Mr. R. A. Crindle

  Mr. Les Huckfield

  Mr. Terry Walker

  Dr. Reginald Bennett

  Wherefore Your Petitioner Prays that your Honourable House will be graciously pleased to give leave to the Proper Officers of the House to attend the trial of the said action and to produce the said Reports and formally to prove the same before the court according to their competence
  And Your Petitioner, as in duty bound will ever pray et cetera
  Ordered,
  That leave be given to the proper Officers of this House to attend the trial of the said action to produce the said Report of Debates, and that leave be given for references to be made to the said Debates.—(Mr. Cope.)

ORDERS OF THE DAY
  SEXUAL OFFENCES (AMENDMENT) BILL
  As amended (in the Standing Committee), considered.
New Clause 1

  ANONYMITY OF DEFENDANTS IN RAPE ETC. CASES
  '(1) After a person is accused of a rape offence no matter likely to lead members of the public to identify him as the person against whom the accusation is made shall either be published in England and Wales in a written publication available to the public or be broadcast in England and Wales except—

  (a) as authorised by a direction given in pursuance of this section or by section 4(7)(a) of this Act as applied by subsection (6) of this section; or

  (b) after he has been convicted of the offence at a trial before the Crown Court.

  (2) If a person accused of a rape offence applies to a magistrates' court, before the commencement of his trial for that offence, for a direction in pursuance of this subsection, the court shall direct that the preceding subsection shall not apply to him in consequence of the accusation; and if at a trial before the Crown Court at which a person is charged with a rape offence in respect of which he has not obtained such a direction—

  (a) the judge is satisfied that the effect of the preceding subsection is to impose a substantial and unreasonable restriction on the reporting of proceedings at the trial and that it is in the public interest to remove the restriction in respect of that person; or

  (b) that person applies to the judge for a direction in pursuance of this subsection, the judge shall direct that the preceding subsection shall not apply to that person in consequence of the accusation alleging that offence.

  (3) If, before the commencement of a trial at which a person is charged with a rape offence, another person who is to be charged with a rape offence at the trial applies to a judge of the Crown Court for a direction in pursuance of this subsection and satisfies the judge—

  (a) that the direction is required for the purpose of inducing persons to come forward who are likely to be needed as witnesses at the trial; and

  (b) that the conduct of the applicant's defence at the trial is likely to be substantially prejudiced if the direction is not given,

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  the judge shall direct that subsection (1) of this section shall not, by virtue of the accusation alleging the offence with which the first-mentioned person is charged, apply to him.
  (4) In relation to a person charged with a rape offence in pursuance of any provision of the Naval Discipline Act 1957, the Army Act 1955 or the Air Force Act 1955, the preceeding provisions of this section shall have effect with the following modifications, namely—

  (a) any reference to a trial or a trial before the Crown Court shall be construed as a reference to a trial by court-martial;

  (b) after the word "Wales" in both places there shall be inserted the words "or Northern Ireland";

  (c) in subsection (2) for any reference to judge of the Crown Court there shall be substituted a reference to the court-martial; and

  (d) in subsection (2) for any reference to a magistrates' court and in subsection (3) for any reference to a judge of the Crown Court there shall be substituted a reference to the officer who is authorised to convene or has convened a court-martial for the trial of the offence or, if after convening it he has ceased to hold the appointment by virtue of which he convened it, the officer holding that appointment.

  (5) An order in pursuance of section 49 of the Children and Young Persons Act 1933 (which among other things imposes restrictions on reports of certain court proceedings concerning juveniles but authorises the court and the Secretary of State to make orders lifting the restrictions for the purpose of avoiding injustice to a juvenile) may include a direction that subsection (1) of this section shall not apply to a person in respect of whom the order is made.
  (6) Subsections (5) to (7) of section 4 of this Act shall have effect for the purposes of this section as if for references to that section there were substituted references to this section; and—

  (a) in relation to a person charged as mentioned in subsection (4) of this section, section 4(6) of this Act, as applied by this subsection, shall have effect as if for paragraphs (a) to (c) there were substituted the words "he is charged with a rape offence in pursuance of any provision of the Naval Discipline Act 1957, the Army Act 1955 or the Air Force Act 1955";

  (b) in section 5(3) of this Act the reference to the purposes of section 4(2) of this Act shall be construed as including a reference to the purposes of subsections (2) and (3) of this section; and

  (c) in relation to a person charged by virtue of this subsection with such an offence as is mentioned in subsection (6) of section 5 of this Act, that subsection shall have effect as if for the reference to section 4(1) of this Act there were substituted a reference to subsection (1) of this section'.—[Mr. John.]

  Brought up, and read the First time.
  The Minister of State, Home Office (Mr. Brynmor John): I beg to move, That the clause be read a Second time.
  With this there are the following related amendments: No. 26, in page 4, line 42, leave out Clause 4; and Government Amendments Nos. 33 to 37.
  It might be convenient to the House if I explain that when the Bill went into Committee the relevant clause provided anonymity only for the complainant, and that the Government maintained that position in Committee. However, the Committee decided by a large majority that anonymity should extend to the defendant as well as to the complainant. The Government, having carefully considered the matter and the will of the Committee, have accepted that point of view. The new clause therefore seeks to enshrine in the Bill a proposal to give the necessary force to the Committee's decision.
  Perhaps I might indicate briefly the scope of the new clause. Subsection (1) provides that, after a person has been accused of a rape offence, no matter likely to lead members of the public to identify him as a defendant shall be published except by virtue of the operation of this clause or unless conviction of the offence has taken place.
  Under subsection (2), a person charged with a rape offence may himself apply for a direction to lift the prohibition, and if no such direction is obtained at the magistrates' court, he may apply to a judge at the trial in the Crown court. It would then have to be done if there were exceptional circumstances which referred to the defendant himself or if there were such exceptional circumstances as to be of public interest.
  Subsection (3) deals with the question of a co-defendant who is charged with a rape offence. If for the purpose of collecting evidence it is necessary to lift the restriction on the name of his codefendant, he may apply to the judge for such a direction.
  Subsection (4) applies the anonymity provisions to courts-martial. Subsection (5) relates to the Children and Young Persons Act, and subsection (6) adapts Clause 4, subsections (5) to (7), of the original Bill for the purpose of this clause.
  Amendments Nos. 33 to 37 are technical and are designed to secure that in

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  Northern Ireland the relevant provisions relating to anonymity for complainants and defendants are brought into force simultaneously when a Order is made by the Secretary of State.
  Mr. Robin Corbett (Hemel Hempstoad): I should like first, as the principal sponsor of the Bill, to thank the Government for coming forward with this new clause, which carries out the intentions of the work we did upstairs in Committee.
  The House will remember that the Heilbron Report dealt fairly shortly with the matter of anonymity for the defendant. Paragraph 176 did not reject the possibility that the defendant should also have this anonymity but argued rather that this should wait until there was a review by a committee concerned with the criminal law generally. The report concluded, at the end of paragraph 176:
  "we do not think it desirable to recommend changes in the law of rape which would make it more anomalous than it is at present".
  But the sentence did not end there, and I draw attention to the last three words of the sentence:
  "without strong justification".
  It is that strong justification which, on balance, the Committee upstairs decided exists, though I readily acknowledge—this was commonly agreed during the discussion—the point made in the Heilbron Report that to this extent it would create a further anomaly in our criminal law. There is, I think, the general argument about the need as far as possible, and particularly in relation to the criminal law, to try to ensure equality between the defendant and the complainant before the law.
  11.15 a.m.
  There has also to be taken into account —it was this factor which persuaded me to this point of view eventually—an assessment of the effect on the defendant of publicity arising out of a trial on a charge of rape, even though at the end of the trial he is acquitted.
  My hon. Friend the Member for Derby, North (Mr. Whitehead) cited the case of a prospective parliamentary candidate who, a few months before a General Election, was charged with a rape offence, went through the trial and was acquitted. Nevertheless, his whole
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  prospective parliamentary career was ruined by his attendance at the court. It does not need me to underline the effect of such an event on the selection bodies concerned with these matters. The very fact that someone offering himself as a candidate has been through the courts, even though he has been acquitted, could—and in that case did—weigh heavily with those making such a decision.
  In a less dramatic way, it is helpful to look at this matter in the context of a small town. There is the man's wife, his children and his immediate family to whom he has to say "I have today been charged with the offence of rape". There is the devastating effect on them of that knowledge. There are his friends in his social life and at the pub around the corner from where he lives. There are his workmates and, perhaps more important, his bosses, those who take decisions about his future employment and, indeed, about his future career. Their reaction is understandable, but there is the risk that when such a charge is laid against a man, even if he is acquitted, the stigma remains with him throughout his life in the community within which he lives and works.
  What I am trying to say—I do not say uniquely, but this is the circumstance about which we are talking—is that acquittal on a charge of rape is not enough finally and thoroughly to clear a man's name and cleanse his character. There will always be those in the community and at work who are taking decisions about career prospects of the man who will say "No smoke without fire", and that can be most damaging to the individual.
  I want to make quite clear, Sir Myer, that I am not in any way seeking to support justice in the dark or secret courts. That is not what is being suggested in the clause. I consider that the naming of a defendant is not crucial to the exercise of justice in the open. I admit. Sir Myer, that this opens a wide door—
  Mr. Deputy Speaker (Sir Myer Galpern): Order. Just for the sake of the record, I hope that the hon. Member will extend anonymity to me also while I am in the Chair and address me as Mr. Deputy Speaker.
  Mr. Corbett: I am sorry, Mr. Deputy Speaker.
  I admit that this will open a wide door in relation to other criminal offences, but I do not apologise for that because I believe that as a result of the discussions in Committee it has emerged that it would be a good idea in our changed society to review the whole principle of the automatic naming of defendants in criminal charges. This is a wide door. It is a new principle that we are seeking to establish in this case, but it is important and is one to which I hope that others will pay some attention.
  Here at least we can say that as far as this offence is concerned, and it is one of the most horrific and serious with which a man can be charged—the more so if acquittal follows—there is the strong justification for which Heilbron was looking. I thank the Government again for bringing in the clause and I urge the House to support it.
  Mr. Deputy Speaker: In case it has not been appreciated, I remind hon. Members that with New Clause 1 we are discussing Amendments Nos. 26 and 33 to 37.
  Mr. John Lee (Birmingham, Hands-worth):I take it from what you have just said, Mr. Deputy Speaker, that the scope of the debate will be wide. The amendments standing in my name, particularly No. 26, seek to delete the whole of Clause 4 and give us an opportunity for the wide-ranging debate that this matter merits. Before I embark on a rather wider discussion of the matter, I should say that my hon. Friend the Under-Secretary of State has conceded the point, perhaps a little belatedly. The Home Office failed at the outset to recognise the enormity—I do not think that is too strong a term to use—of allowing, in a situation like this, anonymity for one party but not for another.
  As the Bill has emerged from Committee, until the amendment in the name of the Minister is passed, someone who brings a completely groundless and, perhaps, malicious accusation of rape can be protected both from the social disapproval of the community and, in most cases—I shall refer to one exception in a moment—from other redress at the hands of the unfortunate defendant, while
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  the defendant's name can be stigmatised even if he is fully acquitted. This is quite intolerable, and my hon. Friend the Member for Hemel Hempstead (Mr. Corbett) is to be congratulated on conceding this point.
  The one rare exception—as the hon. and learned Member for South Fylde (Mr. Gardner) will know, as a practising member of the Bar—is that there is a theoretical possibility that after a successful acquittal, an action for malicious prosecution and wrongful arrest could be brought by the defendant, but the ingredients needed to prove that malicious intent or injury are uncertain and extremely difficult to prove. It is, of course, one of the few civil actions that are triable by a jury. I have, on occasions, been a little cynical of juries, in references to "jury roulette", but certainly, in respect of civil matters, juries can be perplexingly unpredictable in their attitude.
  There is no reason why a complainant in a rape case should be more privileged than anybody against whom other accusations are made. There are graver accusations than that of rape, such as accusations of espionage, treason and blackmail, which are sometimes cloaked with anonymity. Indeed, for some people even a simple allegation of shoplifting carries with it just as much a stigma as a charge of this kind, which often carries with it the certainty of imprisonment. I read in the newspaper this morning about the case of a justice of the peace charged with the shoplifting of goods worth nothing more than 50p. Although he may be vindicated on appeal his name and status are known, and so is the allegation. I doubt very much whether the anguish that he will continue to sustain will be any less than that of either of the parties in a rape offence—the complainant, if she is disbelieved, or even believed, or the defendant, if he should be vindicated by a jury.
  In war time, in official secrets cases, it was the practice for the names of the defendants and witnesses and, indeed, everything to do with an espionage charge, to be blanketed with a cloak of secrecy, for obvious and understandable reasons. Sometimes, the first that one ever knew of the existence of a spy trial was the news that defendant had been executed. But there is a totally different situation in war time.

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  There have been a number of instances in recent years, including that of a former hon. Member of this House, who was tried at the Central Criminal Court a few years ago on a long indictment, including many allegations of espionage involving an East European country. Publicity appertained to his arrest, to his committal for trial and even throughout the trial, to such an extent that every time the jury came back to ask questions it was clear that there was disagreement amongst them on certain matters.
  Mr. David Weitzman: May I ask my hon. Friend what is the logic of saying that because we have publicity in other cases we ought not to have publicity in this case?
  Mr. Lee: If my hon. and learned Friend will bear with me, the point I was making, perhaps not very well, was that I do not see why either of the parties in a rape offence situation—complainant or defendant—deserves to be priviliged in relation to the law and in respect of an allegation which, in fact, is somewhat less serious than other offences that we have never enveloped in the cloak of secrecy.
  What is the position of the former hon. Member for Morpeth? We all know his name—Mr. Will Owen. He served for many years in this House and was acquitted, of the charge bought against him, but there was always a stigma, in the sense that those who knew him were aware that he had been accused and had gone all the way to a jury acquittal. Serious though rape may be, an accusation of treasonable kind is a more serious and far graver matter than that. No one extended the cloak of anonymity to the former hon. Member for Morpeth, although—this brings us back to, and reinforces, the justification for the Government's attitude on this matter—anonymity was extended to the Special Branch witnesses who gave evidence at the Central Criminal Court trial in 1970 against the former hon. Member for Morpeth. I think that answers my hon. and learned Friend's question.
  I turn to the basic reason why I am seeking to delete Clause 4, which gives the whole scope of anonymity. I know the rationale in the mind of my hon.
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  Friend the Member for Hemel Hempstead. It is that the clause will remove one deterring factor from the emotionally and psychologically unbalanced woman who is minded to bring reckless accusations of this kind. I understand and respect the views of my hon. Friend. It is perfectly true that a number of women, victims of appalling attacks, have had the additional ordeal not merely of the witness box but of the publicity involved. We do not need much imagination to understand what that can mean.
  11.30 a.m.
  To draw an analogy from civil law—the law of defamation—in the celebrated case of Yussupoff v. Metro-Goldwyn-Mayer, a civil court held that to publish the suggestion that a woman had been the victim of rape was itself defamatory, and the High Court awarded damages. I can understand the reasoning behind the clause, but what troubles me about the purpose behind it is that, bearing in mind that the only way that we can effectively test the veracity of a witness is to subject him to some measure of ordeal, and that a legitimate ingredient in that element of ordeal is the measure of publicity that attaches thereto, we make it that much easier for wrongful convictions to occur.
  Mr. Corbett: Does my hon. Friend accept that a large number of women are deterred from properly laying charges of rape by the fear that their names will appear in the local paper and perhaps even in the national Press? Apart from what happens in court, does not that fear prevent them from seeking redress and justice? I can substantiate that from my postbag.
  Mr. Lee: I understand that, but I can cap that example by relating an experience of mine without revealing the identity of the persons concerned. My wife and I heard screams outside our house. At first we took no notice, because we thought the noise was made by children playing. It became apparent to me that there was an urgency about the screams which suggested that something serious was occurring. I went outside, as did several of my neighbours, to find that a girl had been attacked. It was not a sexual attack; someone had attempted to murder her. I dialled 999 and the police arrived. We did not catch

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  the attacker, although both the victim and some of the neighbours had a shrewd idea who he was.
  The police wanted to prosecute. This was an offence that would at least have supported the charge of assault occasioning bodily harm, contrary to Section 2 of the Offences Against the Person Act 1861. Indeed, there could have been an indictment for attempted murder. Because the girl was reluctant to pursue the matter further, and regarded as abhorrent the further ordeal of giving evidence of the attack—knowing how it could be sensationalised just as easily as could a sexual offence—the matter was never pursued and the offender, whose offence was at least as serious, if not more serious, than a sex offence, was allowed to go free.
  There is a danger of getting sexual matters in the wrong perspective. Offences against the State, offences of violence and, in certain contexts of society, serious allegations of dishonesty, carry with them a moral stigma just as anguish-causing and just as demanding in terms of ordeal as any sex offence. Without being unseemly and frivolous, perhaps I may point out that it is said that Malcolm Muggeridge, before he contracted religious mania, once said that the English had sex on the brain, which is not the most suitable place for it.
  I have profound misgivings about the clause. The Government have done something to improve it. Without the Government's amendment the position would be indefensible.
  I wish to seek your guidance on procedure, Mr. Deputy Speaker, and raise a point of order in my speech. Although it was not made clear before the debate started, I assume that there will be separate Divisions on the amendments. I wish to support New Clause 1, but I also wish to move my amendment separately.
  Mr. Anthony Fell: A few moments ago the hon. Gentleman astounded me by accusing Mr. Malcolm Muggeridge of religious mania. Anyone less maniacal than Mr. Malcolm Muggeridge I cannot imagine.
  Mr. Lee: The hon. Member for Yarmouth (Mr. Fell) is entitled to his
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  opinion, and I am entitled to mine. Perhaps he has a kinder nature than I have.
  Mr. Edward Lyons: My hon. Friend the Member for Birmingham, Handsworth (Mr. Lee) should remember that he is absolutely privileged and he should consider his words with care before saying that someone is maniacal.
  Mr. Lee: I suppose that my comment could be regarded as unkind. If my hon. and learned Friend the Member for Bradford, West (Mr. Lyons) thinks I am being unduly discourteous, perhaps I should not have said it. Religion sometimes leads people up strange paths and, as an unashamedly unreligious person, I deplore the baleful influence of some religious attitudes. I withdraw the comment if my hon. and learned Friend thinks that I am taking advantage of parliamentary privilege.
  I was addressing you on a point of order, Mr. Deputy Speaker—
  Mr. Deputy Speaker: It is unusual for a point of order to be interwoven in a speech. It makes it difficult for the Chair. No assurances have been given. It is most unusual for separate Divisions to be allowed on a measure of this kind. However, if the hon. Member will have a word with me after he has completed his speech, I shall listen to whatever representation he has to make. So far, no assurance has been given about separate Divisions.
  Mr. Lee: I am grateful to you, Mr. Deputy Speaker. I shall discuss the matter when I have completed my remarks.
  The difficulty that lies behind the Bill is brought about by a commendable though, I suspect, wrong-headed anxiety occasioned by a number of particularly horrendous rape situations that have arisen in the past year or so. There was one case in particular that was so horrifying that one can understand only too well the desire to make it easier for victims to pursue a well-founded and thoroughly meritorious complaint. I do not know whether this is the appropriate point at which to do so, but I shall put forward one other factor that is germane

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  to this subject—namely, the question of identity.
  It so happens that in the last fortnight there have been a spectacular number of instances in which convictions have been wholly set aside, and in which the Home Secretary at least has felt that the sustaining of a conviction was so unsafe because of the suspect character of the identification evidence that he has released the defendants. Indeed, I note that the hon. Member for Rochdale (Mr. Smith) suggested that a special tribunal should be constituted to sift suspect identification cases. There may be some merit in that suggestion, but since I know from personal experience how overloaded is the Court of Appeal, Criminal Division, I am not sure that the Lord Chief Justice will thank the hon. Gentleman for making such a suggestion, since it may lead to a further complication in the administrative arrangements of the High Court. Nevertheless, it may be that the number of such cases will develop from a trickle into a flood.
  Often where the defence is a total denial of involvement the prosecution evidence depends almost entirely on the identification of one person. Sex, whether consensual or non-consensual, is still for the most part a private activity. It is not carried out knowingly in the presence of other witnesses. Therefore, in a situation in which somebody disappears after committing an alleged rape, one is dependent on a lone person's identification of the offender. In other words, if we give to a complainant the cloak of anonymity we shall make it that much easier for a person not to take seriously the demanding task of identification. I do not say it is more than a marginal factor, and most of the time one is dealing with people who are dealing seriously with genuine situations, but the danger of miscarriage of justice must be in the forefront of our minds.
  It is bad enough that witnesses can be honest but mistaken; it is more difficult still if a witness is not wholly honest and, perhaps, not too careful about the enormity of the consequences of misidentification.
  I put my basic objection to Clause 4 on the anomaly that this Bill, if passed with that clause intact, will cause in
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  relation to the general body of English criminal law.
  11.45 a.m.
  Mr. Ivan Lawrence: I have the utmost misgivings about this new clause, and those misgivings may be widely shared by lawyers. In a trial of rape it distorts the fabric of our criminal justice to single out the defendant for the special privilege of not having his name drawn to the attention of the public.
  If the arguments that give him this special consideration are valid, they are equally valid for every defendant against whom a false accusation is made. If we were to extend this principle to other offences widely spread across the criminal calendar, it would be a change of such substance that I believe a great deal more time and application by all should be applied than has been the case up to the present. There is no suggestion from any quarter that defendants who are acquitted should not receive publicity. The main reason is that if we start on that slippery slope we shall end up by having a system of justice which, if not secret because people will be able to go into a public gallery and attend hearings, will be seen to be secret because publicity will not be given. It has always been thought to be one of the great protections of defendants and victims, and part of the system of justice of which we are proud, that the public at every moment have a right of access to information disclosed in those courts.
  I have considerable sympathy with the Heilbron Committee, which considered this matter and which said, in paragraph 175:
  "… we do not think it desirable to recommend changes in the law of rape which would make it more anomalous than it is at present, without strong justification. …We think it erroneous to suppose that the equality should be with her—it should be with other accused persons and an acquittal will give him public vindication."
  There does not appear to be the strong justification for protecting the defendant that there is for protecting the complainant.
  Although it is a matter that has properly been raised and that we considered to some extent in Committee, the principle involved is to great that it should be considered at far greater length before we introduce this concept into our law.

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  A committee is now discussing sexual and other offences, and we shall be hearing the more considered views of the Criminal Law Revision Committee on this matter. I do not think that we should rush ahead today with an amendment that, in effect, distorts the fabric of our system.
  I have some sympathy with the point made by the hon. Member for Birmingham, Handsworth (Mr. Lee), that if secrecy was accorded to a defendant it would help the police—who in many cases act as a sort of filter against improper, unjustified allegations made by women who are unstable—to be able to say to such women "Even if you press this matter, there will be no publicity against the accused". But that situation arises in probably only a small number of cases, and the police can in other ways act as a more substantial filter than having to rely upon this particular lever—if that is not an absurd mixture of metaphors. For that reason alone, there would not be sufficient justification for distorting the fabric of our law.
  Therefore, I ask the Minister of State to think again, and to hold his horses until the ramifications of this clause, in terms of the whole fabric of our criminal law, are fully understood in much greater depth. If that is done, I think that it would meet with the agreement of most lawyers and most people who have thought a little longer about this matter than others may have done—others who are more easily reflective of the very strong emotions that this whole subject arouses.
  Mr. Jack Ashley: I do not propose to address myself to the long, rather rambling ragbag of ideas put forward by my hon. Friend the Member for Birmingham, Handsworth (Mr. Lee), because I do not believe in using this debate as a vehicle for trotting out every idea that I have ever had about the subject and, secondly, because many Members who served on the Committee have already dealt in great detail with those points, which have now been repeated on the Floor of the House.
  However, this is a very important new clause that is proposed by the Govern-
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  ment and supported by the main sponsor of the Bill. I want strongly to support it. The succinct view put forward by the hon. Member for Burton (Mr. Lawrence) has a great deal of force, admittedly, and I respect it very much. I can understand his feelings. In fact, the Heilbron Advisory Group, as he said, shared those fears and was against extending anonymity for men, for the reasons that the hon. Gentlema so clearly outlined.
  However, we should remember how this whole controversy began. Many of us, on both sides of the House, were very concerned about the way in which lawyers were indulging in character assassination of women who had been raped. These assassinations would then be quoted at great length in the Press. I know that some of my hon. Friends say that cross-examination is a vital part of justice. That is fine. I am not against cross-examination. But I am against character assassination, and there are many cases of women who are forced in court into a humiliating position when irrelevant matters are dragged in. The fact is that many women suffered as a result of this kind of cross-examination, and were emblazoned in the Press. I think that most of us will agree, therefore, that women should be given anonymity. That is one of the most important aspects of the Bill.
  The matter becomes controversial, as Heilbron said, on the question whether we ought to give equality with other accused persons or with women. Much as I respect Heilbron and hon. Members who oppose the clause, I believe that men should be given anonymity as well, on the same basis as women. I recognise that, as my hon. Friend the Member for Handsworth said, there are other more serious crimes. There is murder, and arson, and we have to answer the question why we should not grant anonymity to people accused of those crimes.
  Mr. Lawrence: How does it protect the complainant against character assassination to give anonymity to the defendant?
  Mr. Ashley: The hon. Member is dealing with a separate part of the Bill. There is another part of the Bill—with which I cannot deal at present in detail, because I would be ruled out of order—that deals with cross-examination. As the hon. Gentleman will realise, that

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  aspect of the Bill prevents lawyers in court from bringing in a woman's past sexual history. This new clause will not prevent cross-examination or character assassination, but another part of the Bill will do that. I know that the hon. Gentleman will be aware of the clause that we cannot discuss now. I hope that that deals with the point he raises.
  I was about to try to answer the charge that there are other crimes that are more important and for which there is no anonymity given to the defendant. First, let me deal with the general charge put forward by hon. Members. All this talk of "Do not rush ahead" and "the slippery slope" is the standard argument against progress of any kind. Whenever any hon. Member brings forward any kind of progressive suggestion, it is always said "You must not rush ahead". But women have been raped since the beginning of time. We have been discussing the law regarding rape year in and year out, ad nauseam, and the time has really come for action now.
  There is a time when one needs research and discussion, but not on this subject, because we know all about it. Women have very clearly expressed their views themselves, individually and through organisations, and women Members have expressed their views in the House. We do not give anonymity to other people because of the argument put forward by Heilbron—that we do not want secret justice. The reason I suggest anonymity for men in this case is because rape is an exceptional crime. No other crime is emblazoned in the Press and attracts so much public attention as the shout of "Rape"!
  The fact is that acquittal of a charge of rape does not lead to vindication because of the special attitude of the public towards rape. It is as simple yet as profound as that. If a man is charged with murder and acquitted, that is generally the end of the matter and the public accept it. If a man is charged with rape and is acquitted, the people say "Oh, it was probably a crafty lawyer", or "One could not really prove it, because rape is never done in public. It is done in private."
  Given the prevailing public attitude towards rape, I believe that we have to accept the reality and make special pro-
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  vision for it. That is why I strongly support the new clause. I want anonymity for women and anonymity for men in these special circumstances. I hope that the House will take due regard of those special circumstances in the Bill.
  12 noon
  Mr. Edward Gardner: I welcome the hon. Member for Pontypridd (Mr. John) on his transition from defence matters to home affairs and congratulate him on his appointment as Minister of State, Home Office.
  I, together with many other hon. Members on both sides of the House, have felt for a long time the need to protect the complainant in a rape case against the anguish of publicity which is inevitably added to the distress that goes with an experience such as that which a victim of rape has to suffer. I welcomed what the hon. Member for Stoke-on-Trent, South (Mr. Ashley) tried to do by way of his Ten-Minute Bill, and what my hon. and learned Friend the Member for Ruislip-Northwood (Mr. Crowder) tried to do in his Ten-Minute Bill, which had the same intention.
  Like hon. Members on both sides of the House I have felt for a long time that if it were possible, as indeed it is, to give the victim of a blackmailer protection from publicity, the argument for giving the same protection to the victim of a rapist was even stronger. The victim of a blackmailer is usually a person who has done something of which he or she is ashamed. Therefore we must bear in mind that, in the case of the victim of a rapist, we are dealing with somebody who has nothing to be ashamed of.
  Mr. Keith Stainton: Necessarily.
  Mr. Gardner: Necessarily. In the ordinary way, nothing but appalling humiliation attaches to the experience.
  The hon. Member for Hemel Hempstead (Mr. Corbett) put forward his views cogently. It is argued that if we are to protect by way of anonymity the victim of a rapist, we ought in fairness to extend that anonymity to the defendant. I look upon that argument with a great deal of anxiety and caution. The Heilbron Advisory Group made it clear that it viewed the implications of anonymity for defendants as being an extension of a

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  principle which could have the most remarkable effects upon the law as a whole.
  As the hon. Member for Birmingham, Handsworth (Mr. Lee) has said, why should a defendant in a rape case be in any better position than the defendant charged with other crimes that might be ever more serious, or, indeed, less serious? The example of the person who is charged with shoplifting has been given. The person who comes before a court with a respectable background and good character and standing in society has as much to lose as anyone who comes before a court charged with a more serious offence. In fact, he may have more to lose. The fact that a crime is grave does not necessarily mean that the consequences of being charged with the lesser crime cannot be equally damaging.
  There may be an argument to be adduced, though personally I do not appreciate it or see it as being forceful enough, to justify the extension of anonymity to defendants. I do not believe that it is an argument that we should follow or, at this stage, even consider. We are considering a narrow point, and I think that it is a bad point.
  Mr. Stainton: May I briefly recount something that occurred to me? I was holding an interview at a constituency surgery as a Member of the House. The last constituent to attend that morning was a female. Although my divisional secretary had been present in the suite of offices, she had at this stage gone home; we had effectively reached the end of the surgery. To my alarm—I cannot wholly recall my feelings now—this female started to undress herself. Various situations evolved from that. Happily, the ultimate did not occur. But I could have found myself in an extremely difficult situation.
  Mr. Gardner: I entirely agree with my hon. Friend that a man, however respectable and innocent he may be, may find himself in the direst peril. Such situations occur not only in offices and private places but in public railway carriages. I do not think one can take these exceptional—I shall not say "eccentric" —and dangerous situations as being a guide to our decision whether we should
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  give the blanket of anonymity to the victim of the crime of rape. I have heard no argument so far that comes near to convincing me of the need, or justification, for extending anonymity to the defendant.
  The hon. Member for Stoke-on-Trent, South said that we should not delay reforming the law. The law stands in need of many reforms; I do not dispute that. If we are to have a root-and-branch reform, of which I suggest this is an example, we must be careful not to cut down the tree. We are in danger if we introduce not a new principle but an extension of principle over the whole field when there is no justification for it.
  The hon. Member for Stoke-on-Trent, South talked with indignation—I share his indignation—of character assassination in court. I hope he will be the first to understand that the purpose of the judiciary is to ensure that there is a fair trial. If there is irrelevant character assassination of the kind to which he has referred, it is not a fair trial, and I should be the first to join the hon. Gentleman in condemning it. But, at the same time, I pay tribute to the members of the judiciary who can, and in fact do, prevent this sort of thing from happening. However, no doubt, when we reach the appropriate stage of our proceedings, we shall be able to refer to the clause dealing with this matter.
  Mr. Ashley: Can there be a fair trial if counsel, in court, is able to indulge in character assassination because that is permitted under existing legislation? One of the main purposes of the Bill is to ensure that such irrelevancies are not allowed. By excluding the woman's sexual history, we shall prevent that kind of character assassination, which is now legitimate, regrettable though that is. It will not be allowed if and when this Bill becomes law.
  Mr. Gardner: I do not wish to go outside the narrow boundaries of this debate, but I am invited by the hon. Gentleman to deal with a point that is not perhaps entirely outside them. Unless a matter is relevant, it would be wrong for a court to entertain evidence on that issue, and if anyone in a court of law attempts to bring in for consideration a matter that is irrelevant to the point at

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  issue, he will be stopped from continuing either with his allegations, be it in examination-in-chief or in cross-examination.
  For myself—I hope that hon. Members will join me in this view—I have complete confidence in the general proficiency of the judiciary in its ability to stop this kind of misuse of our courts. Of course, it happens; it happened recently, in a case raised yesterday in the House, on the Police Bill, in reference to the man Scott. There will be times when one cannot prevent someone from saying something in court. One cannot prevent perjury in court merely by passing an Act of Parliament against the liar. But one can show the intention of the legislature, as this Bill sets out to do in its declaratory clauses.
  But on the essential and immediate point, I have to say, regretfully but strongly, that I am opposed to New Clause 1; I am opposed to extending anonimity to the defendent. Before we do anything as radical as this I want to see the Criminal Law Revision Committee give full consideration to the point, so that we can examine all its implications and act upon any recommendation of that committee.
  Mr. David Weitzman: As one who can claim to have had considerable experience over the years in prosecuting and defending in rape cases, I support New Clause 1 strongly and oppose the deletion of Clause 4.
  First, we have to recognise that a great deal of harm is caused to the defendant and, of course particularly to the woman, by the allegation of rape. For the defendant, the mere insertion of his name in a local paper on the charge which is being made against him is sufficient to cause irreparable harm to him and to any position of standing that he has in the community. People will say that there is no smoke without fire, even though it is a "quickie". It is therefore extremely important that the defendant's anonymity should be preserved.
  Mr. Lawrence: Does not the same point apply to any criminal prosecution of any kind?
  12.15 p.m.
  Mr. Weitzman: I dealt with that point in an intervention earlier, but I will do
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  so again. The defendant may desire to have his name published, and the new clause provides for that in subsection (2). It seems to me utterly illogical to say that, because we publish names in other crimes, in a crime of this nature the name ought therefore to be published. I do not see the logic of that. It may be, of course, that in other cases publication of a name causes harm, and one appreciates that. But we are dealing here with an extremely peculiar crime, that of rape. As far as the woman is concerned, it surely unanswerable that if her name is published the distress that may be caused, even though she is vindicated, is so terrible in its way that the case for anonymity is clearly made out.
  As for the defendant in a case of rape, where a conviction can be made upon uncorroborated evidence, where it is often said that it is so easy to make the allegation and so very difficult and often impossible for a person to defend himself against it, the peculiar case of rape in its way calls for a distinction from other crimes and I am all in favour of anonymity being given, as it is given by New Clause 1.
  Mr. Lawrence: Would not the hon. and learned Gentleman give the same concession to defendants who were defending themselves against charges of blackmail, sexual offences upon children or offences for serious dishonesty? If not, what is the distinction in seriousness to the character of the defendant between rape and these other offences?
  Mr. Weitzman: In blackmail cases we know that anonymity is often given and preserved by the court. In the case of sexual and other offences I believe that there may be a case for consideration, but that could be dealt with by the Criminal Law Revision Committee. We have, however, the opportunity now of dealing with this peculiar crime of rape, and it seems to me essential to insert a clause of this kind in order primarily to protect the woman but also to protect the defendant in a case where it is extremely difficult for him to prove his innocence. I am therefore entirely in favour of New Clause 1 and against the deletion of Clause 4.
  Mr. John: The debate has ranged on two levels. The first was the level of

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  my hon. Friend the Member for Birmingham, Handsworth (Mr. Lee), who not only opposes new Clause 1, although by some perverse logic he seems to welcome it as a certain measure of equality, but seeks to delete the protection already given in Clause 4 to the complainant. As I understand it, he is unique in the Chamber at this time on that issue. I ask the House firmly to resist Amendment No. 26.
  I shall be brief because the arguments have been well rehearsed already this morning and need little underlining by me. First, there is the slippery slope argument. As my hon. Friend the Member for Stoke-on-Trent, South (Mr. Ashley) has said, it is trotted out frequently. In particular cases it is fairly convincing, but it is raised far too widely in this context to be acceptable.
  The hon. Member for Burton (Mr. Lawrence) was seeming to suggest that we could not make a particular reform without reforming the whole field. In other respects that would be doctrinaire, because a great feature of the British Parliament, which it trumpets on all occasions, is that it is pragmatic. If that is so, it can deal with matters on a case-by-case basis, judging whether in the particular circumstances of the case it is right or wrong to make the particular reform. Therefore, the slippery slope argument in this case is, I suggest, because it might affect other cases, not entirely relevant. We must judge in the circumstances of this case whether it is right to make that particular amendment.
  Mr. Lawrence: The Minister misrepresents me slightly. I was intending to convey that it would be wrong to make an anomalous situation from that which generally applied, where the principle which applied generally was not shown to be different from the principle which would apply in the case of the proposed anomaly. In other words, where the principle is the same, the slippery slope argument is a strong one. The slippery slope argument is a weak one only where the principles are different.
  Mr. John: The hon. Gentleman and I would, I think now agree the nub of the matter to be whether the question of rape in itself is sufficiently special in the cir-
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  cumstances of the crime to extend anonymity to the defendant. There are some crimes which are accounted, even now, to be of sufficient exception to extend the exception to the complainant. I am thinking particularly of blackmail. I have sought to draw a distinction between the case of my hon. Friend the Member for Handsworth and that of the hon. Member for Burton. There is general agreement in the House that Clause 4, inasmuch as it relates to the complainant, is justified and that, therefore, the nature of the crime of rape itself is sufficiently special to warrant the complainant's being protected.
  If that is so, I should have thought, with respect to the hon. Member for Burton, that it is illogical for him to say "But, of course, it is not special." He has already conceded that in relation to the complainant it is special. My view would be that the crime itself is special. The contributions on all sides this morning have sought to suggest the very special nature of the crime of rape. Therefore, if it is special for the complainant, there is at least an argument that it is special for the defendant. This is the argument put by my hon. Friends on this occasion.
  The Helibron Report came down, as hon. Members have said, somewhat hesitatingly against the recommendation of anonymity for the defendant. There was a long debate in Committee, and I do not thing that the hon. Member for Burton is being entirely fair to anyone in suggested that this is a kind of rushed decision. It has been thought about by the Government following the carrying of the amendment, and in my judgment, notwithstanding some of the points that hon. Members have put that it is right and proper that we should carry the new clause and extend anonymity to the defendant—
  Mr. Edward Gardner: Has the Minister had any advice from any of the Law Lords or Law Officers, or is there any possibility that the Criminal Law Revision Committee might now have views which would be of assistance to the Government, so that when the Bill goes to another place and is considered there, such views and opinions could be put before those in another place and advantage taken of them? This really is an

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  attempt to widen a principle very dramatically. Before undertaking it, would it not be wiser and better to take the best advice available?
  Mr. John: I thank the hon. and learned Gentleman for that intervention. Of course, Ministers receive advice. The hon. and learned Gentleman gave certain particular instances. I am bound to tell him that, in my judgment, my advice to the House will be to carry the new clause this morning because we believe it to be right and consistent to do so. But, of course, anybody wishing to tender advice upon the subject—which is not free from difficulty, as the hon. and learned Gentleman says—is welcome to do so, and it will be given consideration. This is not the end of the legislative process on the Bill, and any subsequent advice would, of course, be considered.
  With that in mind—
  Mr. Lawrence rose—
  Mr. John: With respect, Mr. Deputy Speaker, I have given way on a number of occasions. I know that this is the Report stage and that in that sense it is not a formal debate, but the points have been fully canvassed.
  Question put, That the clause be read a Second time:—
  The House proceeded to a Division—
  Mr. David Stoddart and Mr. John Ellis were appointed Tellers for the Ayes and Mr. John Lee was appointed a Teller for the Noes, but no Member being willing to act as a second Teller for the Noes, Mr. DEPUTY SPEAKER declared the Ayes had it.
  Clause accordingly read a Second time, and added to the Bill.

Clause 1

  MEANING OF "RAPE" ETC.
  Mr. Lee: I beg to move Amendment No. 3, in page 1, line 7, after 'intercourse', insert:
  'using physical force or by duress'.
  One of the extraordinary things about the law of rape is that, whereas almost every other offence in the criminal calendar is meticulously defined, rape is not. The Bill deals with the problems of anonymity, with which we have just
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  dealt, and with the problems of the right to cross-examine as to character, which we shall be dealing with in due course, but it is only by way of a side wind to these matters that we find ourselves dealing with the central aspect of the offence itself.
  I am somewhat surprised to find that the Government, having themselves given the Bill a measure of benevolent support, have not chosen to insert a definition of their own of a comprehensive character.
  According to paragraph 2871 of Archbold, which is the criminal lawyer's bible,
  Rape consists in having unlawful sexual intercourse with a woman without her consent by force, fear or fraud."
  That is a very old definition. It refers back to some rather old legal tomes.
  12.30 p.m.
  There are a number of amendments on the Notice Paper, some of them in the name of the hon. and learned Member for Thanet, West (Mr. Rees-Davies), whom I do not see in his place. It may be that I shall find myself moving them in his stead. But my own attempt to improve this clause is somewhat spatch-cocked in character. However, what should commend itself to the House is that, to this extent at least, it enlarges the offence, because I specifically use the term "duress" as being a means by which rape is attained. But I shall come to that in a moment. I deal first with the words of the amendment in the order in which they appear.
  One of the hazards that the law, as it has developed, seems to produce, making life difficult for a man—I do not say this in any cynical, frivolous or unseemly sense—is that verbal non-consent can be sufficient to sustain a charge if it is believed to be genuine and if it is believed by the defendant to be genuine at the material time. I think that that is as succinct a paraphrase of Morgan v. DPP as anyone could manage.
  I seek by this amendment to make it clear in express terms that a measure of physical force shall be present. If I emphasise my own amendment, it may be that I should have attempted to define the degree of physical force to make it clear beyond peradventure, though it is made clear in a later amendment that

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  the measure of force must be such that if it occurs and if it is needed by the would-be rapist, no would-be rapist could be in any doubt that what he was doing was not being consented to. I think that this problem has vexed—
  Mr. Weitzman: My hon. Friend will recognise that he himself has not said what the physical force has to be. It might be a minimum of physical force. Surely every act of intercourse is accompanied by at least a minimum of physical force. Does not my hon. Friend's amendment really go to the question of consent?
  Mr. Lee: My hon. and learned Friend raises two points. To the second the answer is, quite simply, "Yes". The first raises a philosophical point about whether there can be any act intro vagina which does not involve an element of, perhaps, involuntary physiological muscular resistance and that, if what my hon. and learned Friend said was taken to the reductio ad absurdum, it would mean that any act of sex carried with it the rape ingredient. If I put the interpretation that my hon. and learned Friend seems to seek to put upon my amendment or, indeed, upon the law as it now is, it would be to make every act of sex outside marriage a potential rape situation, and I cannot believe that even the Mary Whitehouses of this world would seek to do that.
  I am grateful that the Chair has selected this amendment, disappointed though I am that New Clause 2 was not selected. However, we shall have an opportunity to discuss the substance of that when we come to Amendments No. 10 and 11. This debate provides the opportunity for some degree of discussion of the definition of this offence.
  I apologise to the House for not having worded my amendment in sufficiently comprehensive terms, but it seems to me that we must get away more and more from the idea that the words are the most significant aspect. Persons in a sexual situation may use phrases in a not very rational way, and I think that it is dangerous to rely upon words evidentially in a criminal trial alleging a rape offence.
  I think that the well-known old phrase bears repetition. I hope that I shall not
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  furrow the brows of either Front Bench by seeming again to treat this in a frivolous or lighthearted way, because I am not. We all know the old phrase that if a lady says "No", she means "Probably"; if she says "Probably", she means "Yes"; and if she says "Yes", she is not a lady.
  The purpose behind this part of the amendment is that we should get more and more away from the hazardous legal situations that are sometimes involved as a result of the words that may accompany a sex situation.
  I do not think that the second part of the amendment requires very much definition or elaboration. In a sense, it repeats part of what is already stated. But duress goes a little further. A person may be forced into a sex act by blackmail. That is readily recognised. What is not recognised quite so readily is that a duress situation can be produced constructively.
  The hon. Member for Burton (Mr. Lawrence) was counsel in the Kray case. He will remember the celebrated ruling of Mr. Justice Melford Stevenson with regard to a defendant named Barrie, in which he enunciated the doctrine of constructive duress. It is that a person may be in fear not because of the immediate physical circumstances but may act in terrorem because of fear induced by some preceding or even prospective situation—in this case fear of a powerful gangster—and that such a person charged with a criminal offence, which in this case was murder and allied offences against the person, was able to rely on the defence that he was still in fear of the person who had caused the fear, even though he was not in the immediate physical proximity of the person.
  That part of the phrase helps to introduce that concept. In a sense, it widens the scope of the offence. I want this clearly understood, because although my hon. Friend the Member for Hemel Hempstead (Mr. Corbett) is probably irritated by my tactics, he must appreciate that I do not seek irresponsibly to make light of this offence. I hope he will understand that they are a token of my earnestness.
  If the amendment were to be accepted in my submission its phraseology would

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  enlarge the scope of the offence where it is a genuine offence. We are all at one in wishing to ensure that we do not convict people who should not be convicted. As a precedent to that, we must more clearly define the offence that is alleged against them.
  Mr. Norman Miscampbell(Blackpool, North): I believe that the words in the clause which state that a man commits rape if
  "he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it"
  are admirable. The clause should be left in exactly its present form. The hon. Member for Birmingham, Handsworth (Mr. Lee) says that his amendment would enlarge the crime or enlarge the possibility of conviction. I do not understand that at all. He goes on to put a constriction on the matter by saying "by those who ought to be convicted".
  The amendment refers to physical force or duress, but the words
  "does not consent to it"
  can easily be put to a jury. On that basis, any jury can decide whether the circumstances were such that the woman did not consent to intercourse. Anything else that tries to restrict the jury's consideration of those words will do nothing to help.
  Mr. Lee: I do not know whether the hon. and learned Gentleman proposes to do so at this stage, but perhaps he might choose at some stage to say whether there should be a point at which consent might be assumed—for example, if relationships had reached a certain degree of intimacy.
  Mr. Miscampbell: If I am being asked whether I shall support a clause which provides that there may be rape within marriage—no, I am not. With that exception, however, I take the view that it is entirely a matter for the common sense of a jury. It is for a jury to look at the matter in the round and to ask itself "Has consent been proved or has it not?" Alternatively, the members of a jury might ask themselves whether it is something that they have to consider. To put the matter very shortly, I think that this is something we should leave entirely to the common sense of the jury. The amendment will not help.
  Mr. Lawrence: The amendment is unnecessary and undesirable. It is unnecessary because physical force and duress are both evidence of lack of consent. As my hon. and learned Friend the Member for Blackpool, North (Mr. Miscampbell) has said, those are matters which juries always consider in cases of the sort we are discussing.
  Secondly, the amendment is undesirable because by the mere definition "force or… duress" it excludes a number of situations in which rape applies. For instance, if someone represented that he was a doctor and was about to treat the patient in a way that involved sexual intercourse, when it was clear that the patient would not give her consent if she did not believe him to be a doctor, that would be rape by a trick.
  12.45 p.m.
  If a defendant crept into bed while a woman was sleeping and had intercourse with her while she was insensible through sleep, drink or drugs, even though there was no physical force or duress, there would be rape. There would be rape if there was intercourse with a woman, the woman believing that the person with whom she was having intercourse in the night, in the dark, was her husband whom she expected to be in bed with her. That would not necessarily involve physical force or duress.
  Mr. Lee: The hon. Gentleman has given a number of definitions, but if part of his wording were interpreted literally it would mean that, in a common law wife-husband situation, if the "husband" got into bed with his mistress, she being asleep, and had sex with her, that would be an act of rape. I am sure he does not mean that.
  Mr. Lawrence: If the woman consents, there is no rape. I am postulating a situation in which a woman consents because she believes the man to be her husband. But if the man who is in bed with her is not the husband, and if he knows that she would not consent, that would be rape. It would be rape even though there was no element of physical assault or duress.
  It is also established law, I believe, that if a man has intercourse with a woman of such weak intellect as to be

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  considered incapable of giving her consent, that would be rape although neither physical injury or duress would be involved. There are a number of situations which are excluded by the use of the words in the amendment.
  My third reason for saying that the amendment is unnecessary and undesirable is that, had it been thought necessary over the years to have the qualification that is introduced in the amendment, it would have occurred in the years since East and Hale, who, I think, held force in 1800 or thereabouts. Ever since then the law, without the addition of these words, has been found adequate.
  Mr. Lee: Oh, has it?
  Mr. Lawrence: As far as I know, no attempt has been made to introduce legislation to change the wording. I suggest that what has held good for 176 years might hold good a little longer.
  Mr. John: It might be as well for me to indicate the Government's attitude to the amendment. In my view, the definition as inserted by my hon. Friend the Member for Birmingham, Handsworth (Mr. Lee) would narrow and not widen. Heilbron, in paragraph 19, provides that the essential of the crime is
  "sexual intercourse with a woman without her consent".
  In my view, the importation of physical force or duress narrows the matter considerably.
  There are rare examples in the law reports of cases in which fraud is used to obtain sexual intercourse. My hon. Friend will know very well the case of the King v. Williams in 1923, when sexual intercourse was obtained by a music teacher on the basis that he was thereby improving his pupil's voice. That is the sort of bizarre example which evokes mirth, and justifiably, but it would make it wrong for this legislature, by means of the Bill, to narrow matters and to take out of the protection of the law someone who is induced by fraud to have sexual intercourse with another.
  Mr. Lee: May I give my hon. Friend an example which I hope he will not think distasteful? He has already given one bizarre example. Let us consider the case of Lord Lambton and the lady with
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  whom he had his unfortunate affair. If she was paid by cheque and the cheque had bounced, that, I suppose, would be fraud. Would it be rape?
  Mr. John: Consent is to the act and not to the surrounding contractual circumstances.
  I am quite clear that this would be an undesirable amendment. I hope that the House will reject it or that my hon. Friend, now he realises that the amendment would narrow the definition, will withdraw it.
  Sir Michael Havers(Wimbledon): I agree with the Minister and with my hon. Friend the Member for Burton (Mr. Lawrence). I am clear in my own mind that the amendment would limit and not widen the definition of rape. The examples given by my hon. Friend are not all that rare. There was a case this week in a South of England Crown court about a girl who was rendered unconscious by the man, who then had intercourse with her. That is a clear example of where physical force had been used, but there will be examples of where a girl is rendered unconscious in other ways, particularly by drink, and then there might be a defence.
  The definition as drafted seems to be good and effective, and the House should reject any restriction of it.
  Mr. Lee: I introduced the amendment in a genuine attempt to widen the definition, but in view of the views expressed on both sides of the House I beg to ask leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Mr. John: I beg to move Amendment No. 11, in page 1, line 21, leave out subsection (3).
  Mr. Deputy Speaker (Mr. Bryant God-man Irvine): With it we are to discuss also Amendment No. 10 in page 1, line 20, at end insert —
  '(3) A husband commits rape if during the continuance of a separation order or any agreement not to molest his wife he has sexual intercourse with his wife when she does not consent to it.'
  Mr. John: I can understand the concern of some of my hon. Friends who spoke in Committee about this problem and who referred to the circumstances which can arise in domestic situations. I

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  hope that in moving the amendment I shall not be seen as guilty of some of the last-ditch attitudes towards marriage which sometimes characterise spokesmen on both sides of the House. Nevertheless, there are a number of very good reasons why a provision of this kind in a Bill such as this is undesirable.
  First, the status of marriage is an area which the law would be right to invade only after due thought and consideration. That does not mean that the law never invades the status of marriage to make a criminal offence of matters which exist between husband and wife. There is Section 30 of the Theft Act 1968. Nevertheless, due consideration should be given before such an invasion, and I do not believe that that consideration has yet been given.
  Even where the law is sanctioned to intervene in the case of marriage, as with the Theft Act, special limitations are imposed to ensure that such complaints as are made are not in themselves an extension of the matrimonial friction. Many complaints can be made upon a particular occasion which are not genuine long-term complaints but are emanations of existing frustrations. The law naturally and rightly is chary of intervening in those circumstances. The Theft Act therefore provides for safeguards on complaints of theft by one spouse against another. The subsection in the Bill imports no such limitations. It would be highly undesirable, without special circumstances, to do so.
  My hon. Friends who feel strongly on this matter cannot disregard practical experience. Perhaps as a representative of the other branch of the legal profession I have had a little more experience of the mechanics of matrimonial complaints than members of the Bar. On many occasions spouses come to a solicitor swearing that they have finished with their marriage and that it is their settled intention to proceed with a matrimonial complaint. They say that they never want to see their partner again, but the solicitor, having taken the necessary steps, subsequently finds that happiness is restored and that the couple have made it up and do not want to pursue the complaint.
  Unless there are safeguards in the Bill, complaints of rape by a wife against her husband could lead to a great many complaints which. while not frivolous, are
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  not maintained to the point of trial. If there are a number of cases in which complaints are not proceeded with because of the relationship between husband and wife, that will inevitably weaken the general protection of a Bill of this kind for genuine cases. Those who have to enforce the law and conduct the cases would become, by the very nature of unmaintained complaints, somewhat cynical.
  Mr. George Cunningham: Does my hon. Friend agree that, whether a woman makes a complaint frivolously or otherwise, all she can do at the moment is to ground it on the charge of assault and not rape?
  Mr. John: My hon. Friend is right in suggesting that there is some protection in the criminal law against force and injury. Certainly the question of an assault is relevant in this situation, but there are many cases of assault in which the police do not intervene but leave the matter to a private prosecution.
  I hope that in view of its limitations the subsection will be seen as likely to do more harm than good to those who are rightly protected under the rest of the Bill against this serious crime.
  There is another point which bears upon the implications of the subsection. There are other sections of the Sexual Offences Act which also involve and impute the question of "unlawful" which would have to be amended as well if the situation were not to become in the meantime hopelessly anomalous.
  But this is not the only opportunity that the House will have to consider the matter. The Criminal Law Revision Committee is examining questions of sexual offences. It is right that it should consider this problem, and I undertake to draw this debate to its attention so that it may specifically examine it if it so desires. I hope that that will reassure hon. Members who felt it right to include the subsection. It would not be right in the present state of the law for the subsection to remain.
  1.0 p.m.
  Mr. Alexander W. Lyon: I agree with the Minister of State that the subsection should be deleted. I am sure that my hon. Friend the Member

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  for Islington, South and Finsbury (Mr. Cunningham) will agree, too. I only hope that the message which will go to the Criminal Law Revision Committee will be clear—that we want it to approach this issue with a completely open mind, recognising that in the Standing Committee there was a strong body of opinion to the effect that this change in the law should be made. The change was supported, in particular, by the lady members of the Standing Committee.
  Whatever the arguments about privacy of marriage or the difficulties of proving complaints made by wives against husbands, the fact is that my hon. Friend the Member for Islington, South and Finsbury totally demolished such arguments as I was able to advance in Committee and which have been advanced again on Report, by pointing to the absurdity arising from the fact that a wife cannot allege rape against her husband but she can allege a criminal assault in almost identical circumstances, and that the issues that arise therefrom are almost the same, except for the question of penetration. In those circumstances, there is great logical force in the case that my hon. Friend the Member for Islington, South and Finsbury advanced in Committee and will no doubt advance again today.
  The Criminal Law Revision Committee should ask itself whether, nowadays, in view of the changed attitude to marriage, we still need this exemption from the criminal law for a husband acting in this way. If it approaches the question with a fresh eye and without any suggestion that either the Government or the House have a bias towards retaining the present law, I am content that the matter should go to the Committee rather than be adjudicated on here today.
  Mr. George Cunningham: I am very grateful for that intervention by the former Minister of State, Home Office.
  I am content to accept the assurance that the present Minister of State has given, to the effect that the matter will be specifically referred to the Criminal Law Revision Committee and that that committee will be asked to address its mind to the question without simply falling into the rut of doing what has normally been done in English law.
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  As that is my attitude, I shall not go over all the arguments that were rehearsed at some length in Standing Committee. I would make only a few points. First, it is worthy of notice that, as I read the authorities—I say again that I am no lawyer, and I therefore apologise to the lawyers, because I may get things wrong—it is not absolutely clear that in a very hard case the court would hold that it is legally impossible for a husband to be found guilty of raping his wife; there is still an element of doubt about that.
  If over the past 50 years there had been a suitably fortunate or unfortunate series of cases, which had led the courts from the very hardest possible case to a slightly less hard case, we could have now had case law that reflected the view set out in the subsection that the Government ask the House to delete.
  Secondly, as my hon. Friend the Member for York (Mr. Lyon) said, a woman has a legal ground of complaint at present if her husband has intercourse with her without her consent and uses any degree whatsoever of violence. She can bring a charge of assault against him. That is the answer to the objection that, if we were to put this provision into the law, thousands of women would run down the street shouting "Rape!" because of a little tiff with their husbands. If they were minded to do that now, they could do it, but even though they shouted "Rape"! now they would have to get the police to bring a charge of assault. So I do not think there are grounds for the worry that there would be masses of cases in which charges of rape were brought for trivial reasons against husbands. If an accusation were made, the police would be even more reluctant to have anything to do with the matter than they are in the case of an assault charge. If the police took action, the wife would find it very difficult to bring sufficient evidence in court.
  What is objectionable about the present situation is that we assume, not because of anything in the mores of the twentieth century but because of things that are in the mores of previous centuries, that a woman, having once consented to conjugal rights for her husband, consents for all time and on each occasion to his having intercourse with

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  her, whether or not at the time she consents to any particular act of intercourse.
  If we were starting from scratch now, we should not make that the law. There must come a time when the law changes to take account of the changing mores of the age.
  On the basis of the assurance that the Minister of State has given, however—that the matter will be explicitely referred to the Criminal Law Revision Committee and that that committee will be asked to address its mind to this point—it would be wise for the House to remove the provision from the Bill. I say that particularly because, if, in the meantime, there is a case where a husband "rapes" his wife, there is a legal remedy; he can be charged with assault and we can correct the illogicality of the present situation after we have had the advice of the Criminal Law Revision Committee.
  Mr. W. R. Rees-Davies: The position that now arises may prove somewhat unsatisfactory from the Government's point of view. I entirely support the move to delete subsection (3). I think that it is utterly wrong that a husband can be regarded as guilty of raping his wife at the time when the parties are in cohabitation.
  However, if Amendment No. 11 is accepted and subsection (3) is deleted, I am not sure that it follows that Amendment No. 10 can be accepted. Perhaps I should therefore refer to Amendment No. 10 —
  "A husband commits rape if during the continuance of a separation order or any agreement not to molest his wife he has sexual intercourse with his wife when she does not consent to it."
  I submit that that is a perfectly proper amendment. If a man who is judicially separated from his wife, or who has a separation order of the court from his wife, or who has entered into a non-molestation clause in an agreement in which he has agreed that he will not in any way molest his wife, then has sexual intercourse with his wife when she does not consent to it, I am perfectly prepared to concede that that could amount to rape, because the conditions of marriage have all been abrogated either by the order or by the agreement of the parties.
  I have taken the view that we can insert Amendment No. 10 as a replace-
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  ment after we have taken Amendment No. 11, which of course I support. However, can Amendment No. 11 be taken before Amendment No. 10? If the words set out in Amendment No. 10 were to be inserted into the Bill, would they be taken out by Amendment No. 11? I do not know whether you, Mr. Deputy Speaker, can shed any light on this proposition, which goes to the question of the debate on Amendment No. 10.
  Mr.Deputy Speaker: It might be helpful if the Minister would express his view on this amendment before we go further into that matter.
  Mr. Rees-Davies: I do not know whether there is a practical problem. I agree with the Government that the question of a man raping his wife when they are living together should not have been included in the first place. At the same time, I should like the Government to consider the position that arises on Amendment No. 10—namely, when there is a separation order.
  The Home Office, the courts, and the country generally are in some confusion. There is an appeal before the courts at present that concerns the position in the event of there being a de facto separation. In that case the husband and wife were separated. The question is whether the husband committed rape in the circumstances.
  Mr. Lee: On a point of order, Mr. Deputy Speaker. While the Under-Secretary of State is considering the point that has been made by the hon. and learned Member for Thanet, West (Mr. Rees-Davies), may we have the assistance of the Chair on another matter? It will not be within your recollection, because you were not in the Chair at the time, but in the first debate this morning, on New Clause 1, with which I was coupled my Amendment No. 26, I asked whether there could be separate Divisions. I was invited to and did consult the Chair, as it were, behind the scenes, and was advised that there could not be separate Divisions. I loyally accept that decision. However, I think that it would be of assistance if, before the debate develops much further, the hon. and learned Member for Thanet, West could be informed of the attitude not only of the Home Office but of the Chair on the question whether these matters may be dealt

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  with in, as it were, separate debates. We shall then know how far we can go on the matter as a whole.
  Mr. Deputy Speaker: I think that I can help the hon. Gentleman. Amendment No. 11 has been selected for debate, and with that we are taking Amendment No. 10 for discussion. That is as far as can go at the moment.
  Mr. Rees-Davies: I think that we can take it that Amendment No. 11 is likely to commend itself to the whole House. The question then arises as whether Amendment No. 10 can be called for a Division, because it is a replacement and the House might wish to vote on it. That is a totally separate matter, which seeks to take account of the position that arises when the parties are separated.
  Mr. John: With the leave of the House, it might be of assistance if I respond to the hon. and learned Member for Thanet, West (Mr. Rees-Davies) regarding the Government's attitude to Amendment No. 10. I should not invite the House to substitute the definition in Amendment No. 10 if the other definition were taken out. There are three reasons. First, the amendment suggests that during the continuance of a separation order in which there is a non-cohabitation clause a husband commits rape.
  Secondly, the amendment seeks to bring in
  "any agreement not to molest his wife".
  That seems much too vague. It does not go to the root of the question whether the agreement is committed to any particular form, before any particular body, or for any particular purpose.
  Thirdly, the amendment does not import the mental attitude that is necessary on the part of the defendant to constitute the absence of consent. Therefore, there is a great danger that it might lead to an offence of strict liability in these circumstances.
  1.15 p.m.
  Mr. Lawrence: I support the Government on their attitude to Amendment No. 11 and my hon. and learned Friend the Member for Thanet, West (Mr. Rees-Davies) on his request. The position is not quite as clear as the Minister of State
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  asserted with great confidence regarding the separation order.
  The relevant passage in "Archbold", which contains the definitive statement of the law, as we practitioners understand it, states that
  "It is a general proposition that a husband cannot be guilty of a rape upon his wife; but it would seem that the proposition does not necessarily extend to every possible case. A separation order made by justices containing a provision that the wife be no longer bound to cohabit with her husband has the effect of revoking the consent which the wife by process of law, namely, marriage, has given to the husband to exercise the marital right during such time as the ordinary relations created by the marriage subsist between them. Consequently, whilst such order is in force the husband is not entitled to have sexual intercourse with the wife without her consent and, if he does, he will be guilty of rape.
  Semble, a separation agreement, particularly if it contained a non-molestation clause, would have the same effect as a separation order; but the mere filing of a petition for divorce by the wife, or the giving of evidence by her in support of a petition which has been adjourned, does not operate as a revocation of the wife's implied consent to intercourse."
  The doubt is over the separation agreement. It seems that, as there is doubt surrounding the whole matter, it might be right for Amendment No. 10 to go forward so that another place may consider it at greater leisure. I am mindful of the Minister's undertaking that the Criminal Law Revision Committee will, in any event, consider it, but I should not like to think that an amendment of this nature would necessarily be dismissed because it did not go forward. That is a risk that is sometimes taken in these circumstances.
  Mr. John: It is not the case that matters are not considered by the appropriate committee merely because they do not go forward. Obviously, the committee has access to the Journals of this House. If it believes it to be of sufficient doubt, it would clearly consider the matter.
  Mr. Lawrence: I am obliged to the Minister.
  I should like to address my final remarks to Amendment No. 11. There are some strong arguments to be made for the proposition by the hon. Member for Islington, South and Finsbury (Mr. Cunningham) about the change in attitude towards the sanctity of marriage. I do not think that a change in attitude

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  towards the sanctity of marriage is good. Nevertheless, the law in general should not be seen to be lagging behind public opinion. There is no doubt that the attitude towards the sanctity of marriage and the status of the wife is not quite the same as it used to be.
  Mr. George Cunningham: The sancity element is not involved here.
  Mr. Lawrence: I am perhaps paraphrasing the general line of argument adopted by others than the hon. Gentleman. My reason for supporting Amendment No. 11 is that the practical difficulties are considerable. Those of us who have had any dealings in the courts with domestic conflicts between husband and wife have the most forbidding experiences of how far such conflicts will go. It was Congreve who said:
  "Heav'n has no rage, like love to hatred turn'd,
  Nor Hell a fury, like a woman scorn'd."
  When that stage of hatred is reached, the more hurtful the allegation the more likely it is to be made.
  It has been said that a situation now exists in which a woman can cry assault and therefore there is no need for her to be discouraged from crying rape, but assault and rape are not the same. During the earlier debate on the clause hon. Members on both sides of the House agreed that the stigma attaching to rape was so great as to differentiate the rules that would necessarily be required to be followed from those of other offences. Rape has an emotional context—a psychological effect upon people's minds that one does not find when a wife complains that her husband has hit her.
  Perhaps more substantial than that, if a wife goes to the police and claims that she has been assaulted, before the police take any action they are likely to want to see an injury. They will try to calm her down. They will try to get a woman police officer to sit with the complainant for half an hour to give the policewoman a chance to assess the situation if there is no evidence at all that the husband has assaulted or hurt the woman. The same considerations do not apply for rape. There does not have to be any evidence of injury. All that a woman has to do is to disarrange her clothes, and it would be a courageous police officer of either sex
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  who would at that stage desire to go deeper into the evidential matters on an allegation of that kind.
  For those reasons, there is a substantial difference between the attitude of a woman crying rape and that of a woman crying assault. By not supporting the Government on this matter we should be laying in store for ourselves—I do not mean just lawyers, but also those for whom the lawyers act in society—a whole barrel-load of trouble. That would be the result if we were to give way to the blandish. ments of the hon. Member for Islington. South and Finsbury (Mr. Cunningham) who has merit in his theory but none in his analysis of the practice.
  Mr. George Cunningham: Does the hon. Gentleman agree that if the development of the law had been such that a woman could not bring a charge of assault against her husband and I had been here moving a change of the law to say that in future she could be allowed to bring such a charge, all these arguments would be brought out about the sanctity of marriage, how difficult it would be to prove it, that a policewoman would sit with her arm around the complainant, and so on? The law allows a wife to make such a charge, and, in principle, that is right and it does not present insuperable difficulties. Some day we shall take the extra step and people will find that the pillars of the temple will not collapse, and they will wonder why it took so long to make this logical move.
  Mr. Edward Lyon: I agree with the Government's view that Clause I should be deleted. I appreciate, too, that this is a matter that should be considered by the Criminal Law Revision Committee, but there are one or two points that I should like to make.
  First, it seems to me—I said this in Committee upstairs—that since the essence of the existing law is that one cannot prosecute a husband for rape because there is cohabitation, where there is no cohabitation rape ought to lie. Rape should, therefore, lie not only in cases where there is a separation order with a non-cohabitation clause but also where the parties are living apart but where no separation order exists. That seems to be obvious.

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  Nowadays, many people do not bother to take out separation orders. If a wife is driven from her husband or leaves him and is earning money on her own behalf, she may see no advantage in going to the magistrates' court to achieve a separation order. That being so, she has made a decision to live apart from her husband. They are living separately but there is no order, yet the law gives her no protection if the husband coerces her while she is living away from the previous matrimonial home. That situation ought to be rectified.
  Often when a wife wishes to obtain an order it might be months before the hearing at the magistrates' court is fixed. It may be difficult to find the husband to serve the papers on him. Throughout that period the husband may go to the separated wife and rape her, and no charge of rape would lie. Those are matters which I hope the Criminal Law Revision Committee will consider.
  I do not take the view of my hon. Friend the Member for York (Mr. Lyon) that in Committee upstairs when he was Minister of State his arguments were thoroughly demolished by my hon. Friend the Member for Islington, South and Finsbury (Mr. Cunningham), even though, as always, he was highly persuasive. The fact is that a private complaint by a wife on summons to a magistrates' court that she has been assaulted by her husband usually produces at the most a fine. It has to be a serious offence to get more than that, and the occasion attracts no publicity. But a case of rape goes to the Crown court. The magistrates' court has no jurisdiction whatsover in that case. Accordingly, one is in a different league entirely in terms of both publicity and penalty. Indeed, one is in a different league also in terms of legal costs to the defendant or, if it is legal aid, to the State.
  Rape is different from assault in its immediate and practical consequences. I agree that mores have changed and that it is right that a wife is entitled to say to her husband that whatever she did yesterday she is not prepared to do today. But one has to look at the practicalities, and what worries me is that if the law says that there can be
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  rape during cohabitation under the same roof many cases may go to the Crown court, where the husband would be open to the most serious penalty. I say that because I have never yet seen a rape case in which a conviction has not resulted in a sentence of imprisonment.
  Mr. Ashley: I should like my hon. and learned Friend to explain to the House why he wants to change the terminology. If a woman is raped by a man, irrespective of whether they are married, cohabiting or not married, it is still rape. Is it not the case that all that my hon. and learned Friend and those who agree with him are seeking is a change in the name, when in fact it is, still rape and should be treated as such?
  Mr. Lyons: I agree that if a woman in marriage says "No" and her husband insists, that is rape; but one cannot divorce from that consideration the fact that rape is treated as an enormously serious offence. One therefore has to look at the ease with which a charge can be made.
  In marriage, the charge can be made with ease when the couple are living under the same roof. Normally, in a charge of rape of a woman in the street, medical evidence of various kinds is adduced by the prosecution. When there is no evidence and there is absence of injury, the prosecution would not normally countenance or instigate a prosecution, because it would not consider it prudent to do so. There is always the danger that it might. It seems to me that the Criminal Law Revision Committee should consider this carefully before introducing rape as an offence while the parties are cohabiting.
  1.30 p.m.
  Mr. Lee: Let us be quite clear about what has been said. I agree with my hon. Friend the Member for Stoke-on-Trent, South (Mr. Ashley) that rape is an extremely serious offence. My hon. and learned Friend the Member for Bradford, West (Mr. Lyons) said that he has never known of a conviction which did not result in imprisonment. What he was saying, if I understood him correctly, was that, first, there can be rape. in the philosophic sense at any rate, within marriage, and secondly, it should carry no penalty when the parties were cohabiting.
  Mr. Lyons: I am saying that there can be rape in that sense, but one must also have regard to the ease with which the allegation can be made in marriage and the greater ease of a false allegation being made. All I am saying is that the Criminal Law Revision Committee should bear that in mind. I hope that it will be able to find a formula, resulting from its greater investigation, which will accommodate the views of my hon. Friend the Member for Islington, South and Finsbury so that a woman's dignity can be protected in marriage. What worries me at the moment are the practicalities of finding a formula.
  Mrs. Ann Taylor: Is my hon. Friend really saying that because it is easy for a woman to bring a charge of rape against her husband she is likely to do so frivolously? Surely the woman would charge her husband with rape only after a very difficult situation had already arisen. It is not something she would do lightly. We know already, from the evidence in the letters referred to by my hon. Friend the Member for Stoke-on-Trent, South (Mr. Ashley), that women are reluctant to bring a charge of rape at any time. Surely a wife would be even more reluctant to bring a charge in these circumstances.
  Mr. Lyons: I do not accept for one moment that women, when they bring a charge of rape, always bring a trivial charge. I do not accept either that a woman would bring a charge of rape against her husband only when it had been committed. In the past, practitioners have found that in many matrimonial cases there is hatred and emotional involvement to such an extent between the parties as not to recommend itself to the light of reason.
  It would be quite possible for a wife, after a stormy argument with her husband, to go to the nearest police station, even though she had not been to bed with him for a week, and say that her husband had raped her the previous day. Because sexual intercourse had taken place and the man's seminal traces were on her clothes, a very difficult situation would be created. I am saying that before the law permits a husband to be put in jeopardy by that sort of allegation it should be considered carefully to see
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  whether a safeguarding formula can be achieved.
  Mrs. Ann Taylor: Surely the point is that it would be very difficult for the wife to bring sufficient evidence against her husband, and, therefore, she would not embark on this kind of situation lightly simply because she had a grudge against him. Before she did that or brought any other charge against her husband, she would have to be driven to do it. Is my hon. and learned Friend saying that a woman who has every reason to bring a rape charge against her husband should not be allowed to do so? He has to explain why we should accept that situation.
  Mr. Lyons: With respect to my hon. Friend, I have not said that a wife should not be allowed to do so. I have said that I see great difficulty and that the matter should be considered by the Criminal Law Revision Committee. I do not accept that when a woman makes a complaint of rape against her husband she will necessarily get a conviction or is even looking for it. The danger is that in the heat of the argument she will report the matter to the police and the husband will be charged with rape. The fact that he is acquitted, at considerable expense to himself and the State, is some consolation, but the damage would already have been done. A woman who is raped in the street has no animus against the man except that he raped her, but there are many reasons why a woman could be vengeful towards her husband irrespective of sex. Therefore, one has to be very careful.
  Mr. Rees-Davies: I should like to follow what the hon. and learned Member for Bradford, West (Mr. Lyons) has just said with one or two further points for the consideration of the House. My first point is that the details of marriage—
  Mr. Deputy Speaker (Sir Myer Galpern): Order. I have just taken over the Chair, but I understand that the hon. and learned Member has already taken part in the debate on this amendment.
  Mr. Rees-Davies: That is right, Mr. Deputy Speaker, in relation to Amendment No. 10, when I was seeking the guidance of the House as to whether we could have a separate Division in respect of that amendment. So far, I have not

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  got an answer whether we can have a Division on Amendment No. 10.
  Mr. Deputy Speaker: Order. I take it that the hon. and learned Gentleman confined his remarks merely to asking that question and that he has not really spoken. As far as the question of a Division is concerned. I should point out that that amendment was selected purely for discussion and not for a Division. I shall give the hon. and learned Member the benefit of the doubt.
  Mr. Rees-Davies: If I am wrong, Mr. Deputy Speaker, perhaps I may have the leave of the House to speak. I shall confine myself to Amendment No. 11, because it has been said that the mover of the original amendment has agreed to withdraw the amendment, which became part of the Bill at is now stands, so that the matter can be considered by the Criminal Law Revision Committee.
  I would make three or four points. It seems to me that the whole tenor of marriage is that it should be out of the public gaze, that what goes on in the matrimonial bed and questions of allegations made by husbands against their wives or wives against their husbands should not be reported, and that there should be the maximum privacy.
  The second point is that rape, next to murder, is one of the most serious crimes in the calendar. It is a very easy charge to make but a difficult one to rebut. However, if a person is convicted of rape it will ruin his career for the rest of his working life. He will not be able to work in any of the professions or maintain a job of any kind. Therefore, to lay a charge of rape when there may be an alternative charge is an extremely serious matter which would ruin that man for the rest of his life. It is, of course, true that wives can always lay a charge of assault and that the man can be convicted.
  My third point is that I know from my experience in the divorce courts, and from advising on these matters over a period of years, that many hundreds of baseless allegations are made by husbands against wives, or by wives against husbands, particularly where money is involved. If a woman could substantiate a charge of rape against her husband, she would be able to substantiate a petition
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  on the grounds of cruelty. If she did that, she would then succeed in her petition and be able to obtain the maintenance that she sought. If she could secure that on a baseless allegation, or one without substance, she would be in a position of very great strength, and the mere threat of the publicity might be sufficient to cow the respondent to a petition to drop proceedings and agree to divorce.
  Mrs. Ann Taylor: The hon. and learned Gentleman has been explaining how serious is the charge of rape. No one is disputing that. A man who rapes his wife should recognise the seriousness of the offence and pay the penalty. We should not change the penalty because he happens to be married and enable him to take advantage of this legislation.
  Mr. Rees-Davies: What about the wife who is in a bad psychiatric condition, finds it easy to work herself up into an intense emotional belief and alleges that she has been sexually assaulted by her husband? The fact that the two live together makes independent corroboration difficult. For all these reasons it would be unfair and dangerous to allow rape to come into the question.
  There is also a contractual element of marriage, quite part from its religious aspect. It would be going far beyond the bounds of anything hitherto imagined to allow this serious crime to come into the matrimonial bed. I believe that the Criminal Law Revision Committee should consider this matter. Let us not forget that the marriage contract between the parties connotes that they are in bed together by agreement. If the parties are no longer in the matrimonial bed by agreement, it is going too far to suggest that the law should be changed to enable this crime to be pursued.
  Mr. Ashley: I feel deeply about this problem, although I recognise that the majority in the House is against preserving the subsection. I believe that we should keep subsection (3) and that a man who rapes his wife should be charged with precisely that offence.
  I am not impressed by suggestions that the matter should go to the Criminal Law Revision Committee. I have nothing against that body, and I am sure that the distinguished lawyers who serve on it would be able to bring expert opinion

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  to bear, but it is the House which legislates. It is our job to analyse the problems and legislate accordingly, and we have discussed this issue at considerable length, thanks to my hon. Friend the Member for Islington, South and Finsbury (Mr. Cunningham).
  It is totally wrong for the wedding ring to be a licence for unlimited sexual intercourse. Basic to a happy marriage is consent, and consent is basic to all sexual intercourse. A woman who does not consent to sexual intercourse is, in my book, being raped. That means that the man must pay the penalty. It is as simple as that.
  The preposterous wedding contract that the woman must love, honour and obey her husband is anachronistic. By all means let the woman love and honour her husband, provided that he is prepared to do the same, but the idea of a woman obeying a man in this modern age is absurd.
  Hon. Members who want to remove the subsection say that they do not want the law in the bedroom. That is an admirable principle, but neither do we want rape in the bedroom. We have the clear choice. Are we to interfere when a man rapes a woman in the bedroom or are we to allow rape in the bedroom? I suggest that we should allow rape nowhere, in or out of the bedroom. Rape is rape and should be treated as such.
  I know that I am a loser on this occasion, but I give notice that I shall raise the matter again as soon as possible because I am convinced that every man should ask every woman for her consent on every occasion.
  1.45 p.m.
  Mr. Edward Gardner: It might be helpful for me to give the views of many Opposition Members on the deletion of subsection (3) and the addition proposed by my hon. and learned Friend the Member for Thanet, West (Mr. Rees-Davies). I think I am right in saying that most of us on the Opposition side of the House—and I hope many on the other side—take the view that there are good reasons for deleting subsection (3), and that those reasons are relevant to our consideration whether to insert the words proposed in my hon. and learned Friend's amendment.
  1970
  Traditionally one hopes that in fact if not in law love and marriage go together, as someone romantically said, like a horse and carriage. But rape and marriage do not go together either in the public mind or in fact. That is not to say that technically, in exceptionally rare cases, there could not be rape within the marriage state.
  We have to keep our feet well on the ground and bring to bear a little earthy common sense. There are some women who are so unscrupulous that if they were given the encouragement of a statutory provision such as subsection (3) they might well be prepared to commit perjury and bring their husbands into a criminal court for the sole purpose of breaking up the marriage. That result is not likely to be regarded as desirable by the House or by anyone else who wishes to improve the law.
  Mr. George Cunningham: That can be done now, on the spot.
  Mr. Gardner: I hope that I shall not be accused of being unrealistic in suggesting that we should look at the matter in as earthy a manner as possible. Whatever technical offence may be committed within the marriage state, such cases would be rare indeed. Therefore, to legislate merely to accommodate the exceptional and rare case would be to go down the road towards bad law.
  Mr. George Cunningham: The crime of murder is also rare.
  Mr. Gardner: Obviously, that is a quite different offence. Rape is an offence committed by a man on a woman, usually in the intimacy of a private place. We are now looking beyond that to the sanctity, if I may use that word, of the married state. If there is a need for this provision, I have not discovered its existence in any of the arguments that have been put forward so far. Therefore, on behalf of the Opposition, I warmly welcome the Government's decision to delete this offending provision from the Bill so that the matter may be examined by the Criminal Law Revision Committee. I must say to my hon. and learned Friend the Member for Thanet, West, who has given deep and anxious thought to this problem, that it would be wise to leave consideration of the

  1971
  matters he has advanced also to examination by that committee.
  Mr. Lee: The hon. and learned Member for South Fylde (Mr. Gardner) began to get himself in some difficulty when he suggested that rape was a delicate situation, committed in the confines of privacy —a subject difficult to deal with within the provisions of a Bill. I think that, inadvertently, he drew attention to the profound cynicism implied in the law as it stands—a matter to which my hon. Friend the Member for Islington, South and Finsbury (Mr. Cunningham), to whom we are all grateful for this opportunity to discuss this matter, drew attention. Indeed, the fact that the Standing Committee carried an amendment on this topic has forced a discussion on this aspect of the law.
  Stripped of its verbiage, the law at present says that rape is a profoundly serious offence—so serious that it can carry a maximum sentence of life imprisonment—and can be committed by any male person on any woman except his wife. The important aspect of the criminal law that distinguishes a married state from a non-married state as between two parties is the right to commit rape on one's partner. For those who have regard to the sanctity of marriage, such a concept is a blasphemous reflection on the nature of marriage, and they believe that these proposals may land us in a difficult situation. It is true that there are instances of what in any other circumstances save for the contract of marriage, would be the most appalling rapes, leading to long prison sentences. The only reason that such instances do not lead to that situation is that those concerned possess a marriage certificate, obtained from a church or register office. That cannot be a satisfactory situation.
  However, the problem does not end there. If it is said that one cannot deal with this matter by amending the law in this way, it puts every marriage into a potential rape situation every night of its existence. It is thought that no action must be taken, because it may give an opportunity to an unscrupulous person. Since the amendments dealing with the possibility of a woman committing a rape upon a man have not been selected, we cannot go into that situation.
  1972
  Although it may be true that many minor assaults by a husband on a wife are not pursued, the fact is that there has been recent comment on the matter. A number of chief constables have said, in terms, that this is not the kind of policy they wish to see pursued and that policemen should be more willing, more courageous, and more prepared to come forward to assist a prosecution of even minor assaults not amounting to grievous bodily harm, where the wife is the victim of the husband. However, I believe that that will not do. The feeling about the law is changing.
  The position does not end there. As the law stands at the moment, a husband can commit murder on his wife; in certain circumstances he can commit an assault or a theft; but in no circumstances can he commit rape. That seems to be an idiotic situation.
  The Government's objection to the proposals put forward by my hon. Friend the Member for Islington, South and Finsbury is that in dealing with rape within marriage one faces two almost intractable problems—one evidential, and the other dealing with the logic of relationships of people cohabiting but unmarried.
  2.0 p.m.
  Let us deal with the first. This concerns the problems that many of us have been worried about in earlier debates today. It is one of the great troubles and dangers about this law, and it is inescapable and in the very nature of the offence, as the hon. and learned Member for Thanet, West made clear, that rape is an accusation that is very easy to make, requires comparatively little evidence and is very difficult to refute once it is made and set on the path towards trial. Therefore, if one concedes that there can be rape within marriage, that problem raises itself in even more extreme circumstances, because there can be minor tiffs or major tiffs leading to accusations that are even more difficult to refute outside the marriage bed.
  Basically, rape falls into two categories, one of which probably ought not to be subject to the law at all. There is the snatch-and-grab situation—the kind of situation that existed in the appalling cases in Cambridge—and the situation in which two persons are in an intimate emotional relationship vis-à-vis each

  1973
  other, which looks like leading to consensual sexual intercourse, but in which, at the very last moment, the woman concerned withdraws consent and the man, by that time, is in such a state of sexual excitement that he cannot stop. He has been led into a rape situation of a totally different kind.
  In some respects, the task of rebutting the accusation in the latter case is more difficult, because in circumstances of privacy it is more likely that there will be no independent witness available to give evidence as to the genuineness or otherwise of the situation. In the case of snatch and grab, there will be evidence of assault and of damage to clothing, and possibly someone will have seen evidence of distress afterwards, which is useful from the point of view of negativing other evidence.
  That leads to one difficulty, and whichever way the House comes down on this matter, we must face it.
  Mr. Alexander W. Lyon: As I understand the drift of my hon. Friend's argument, he is arguing, as the Minister did, that we ought to remove this subsection. We have spent three hours on the Bill today already, and we have not reached the end of Clause 1. If my hon. Friend is seeking to talk out this Bill, he had better say so. This measure would make a considerable improvement in the law, much requested by women's organisations all over the country. It is a measure to which the whole House is apparently giving its general consent. If my hon. Friend, personally, is seeking to talk out a Bill of this importance, perhaps he will have the courage to say so; then we can all decide whether or not to go home.
  Mr. Lee: That is a tendentious observation. My hon. Friend knows perfectly well that this law is a difficult matter. He has said so himself. If his view is that the Bill is perfect and should go through, one may ask why he sought to intervene in the debate at all.
  These matters must be carefully considered. It is a difficult situation, involving a grave offence. The Bill cannot be passed merely because a series of women's organisations, probably misunderstanding the case of the Director of Public Prosecutions v. Morgan, has
  1974
  decided that it should be railroaded through.
  Mr. Edward Lyons: Will my hon. Friend answer the question put by my hon. Friend the Member for York (Mr. Lyon)? Is it his intention to talk out the Bill? Yes or no?
  Mr. Lee: I am talking on the Bill, not talking out the Bill.
  Mr. George Cunningham: Oh! Really!
  Mr. Lee: The position is that New Clause 2 was not selected for debate.
  Mr. George Cunningham: My hon. Friend is filibustering.
  Mr. Lee: My hon. Friend should subside. I was not a member of the Standing Committee. I did not speak in the Second Reading debate. I could not be present on that day. There is no licence to the effect that only those hon. Members who took part in the Second Reading debate should take part in debates on Report. My hon. Friend the Member for Islington, South and Finsbury is experienced enough to know that that is true.
  Mr. George Cunningham: This Bill is not like some that come up for debate on a Friday, having had inadequate consideration by the House or by a Committee, in terms of time. This Bill has had a proper Second Reading debate and has had four Sittings in Standing Committee, I think—certainly three Sittings —so no one can say that inadequate attention has been given to it. By the normal standards of parliamentary democracy, therefore, to which I am sure my hon. Friend would subscribe, it ought to pass if there is a majority in favour of it and it ought not to fail because one hon. Member is prepared to talk it out. That would not be a democratic way of behaving. Surely my hon. Friend is not saying that he is prepared to use—some would say "abuse"—the privilege of one Member being able to put forward his view in order to prolong the debate. The Bill should pass and the House should have time to give consideration to the amendments, including those that he has tabled.
  Mr. Lee: I shall deal with those points in reverse order. If the Bill merits the attention that my hon. Friend suggested,

  1975
  and if it commands the support that he claims it has, no doubt the Government will do what the then Government did in the case of the Capital Punishment Bill in 1965—provide extra time so that it can be considered. As I want to consider these matters, I shall not foreclose on my speeches merely because my hon. Friend tells me—on what authority I know not—that there is an overwhelming majority in support of the Bill. He has spoken on the Bill in an intervention, rightly and relevantly. Perhaps he will allow me the courtesy of talking about those matters that concern me and about which I believe there are difficulties.
  The fact that we have had this extraordinary confusion about whether or not rape should apply within marriage, and that my hon. Friend the Member for Stoke-on-Trent, South (Mr. Ashley), who is one of the sponsors of the Bill, is quite clearly in a minority in the House as a whole in propounding that it should, is an indication of the difficulties that we are in.
  Perhaps I may continue with the body of matters involved. If there are evidential pitfalls standing in the way of admitting rape within marriage, there are surely difficulties, which the House ought to recognise, with regard to non-marital cohabitation situations. I see that my hon. Friend the Member for Islington, South and Finsbury is now about to leave the Chamber. He will know perfectly well that there are hundreds of thousands of people who live together in circumstances unsanctioned by marriage. In many cases those relationships are as stable, as loving and as enduring as many marriages sanctioned by law. They, too, are no doubt subject to the same kind of emotional tension situations referred to by the hon. and learned Members for South Fylde and Thanet, West. They, too, may give rise to a combustible situation, in which one or other partner may march out in a fit of rage or pique, causing the woman to seek revenge by bringing a rape accusation.
  The law at present does not protect the man in that situation. The law puts him in the same situation as those involved in a casual encounter—a leap-in-the-dark, highway-robbery rape. This seems the major objection to the accept-
  1976
  ance of the law as it stands at present. If we include as exceptions to the law of rape subsisting marriages, not impeded by non-cohabitation or non-molestation provisions, we should also include cohabitation situations. It is no good the Minister's saying that we cannot define cohabitation. The Department of Health and Social Security defines it for the purpose of social security benefits.
  Miss Jo Richardson: Inadequately.
  Mr. Lee: Yes. I recognise that my hon. Friend has done yeoman work in this respect.
  Eventually we shall get the matter right. Nobody has said "It is too difficult. We will not attempt to define it. Therefore, we will ignore the situation." The term "common law husband and wife" is used by practising lawyers time and again in courts. Although one or two judges may take exception to it—I know of one who sits in a court not far from London who gets excited about it—hardly anyone else, other than the ecclesiastical lawyers, does so because we know what it means. Therefore, both should be included in or excluded from the law of rape.
  I wish to know from the Minister whether, if he seeks to delete the Standing Committee amendment which would permit rape, he recognises the anomaly which would obtain—in fact, it obtains now as the law stands—regarding cohabitation. If he seeks to preserve the protection of the husband rapist—because that is what he would be doing by deleting the amendment of my hon. Friend the Member for Islington, South and Finsbury—will he extend the scope of that rape licence to cohabitation where two people live together? We might have to stipulate a statutory minimum period, but where there is a stable quasi matrimonial relationship that would be the only fair thing to do. If the Minister does not do that, he is subscribing to the view, which I should have thought every hon. Member would regard as indefensible, that marriage is distinguishable from non-marriage for one reason only, and that is the right to commit rape.
  There are no other distinctions. The distinction in the law of property has

  1977
  largely gone. The cynicism that obtained before the 1884 Act, when it was said that husband and wife were one and the cynic said "The husband is the one", has gone. We have gone a long way towards protecting wives regarding the matrimonial home under the Matrimonial Homes Act. We have preserved since 1884 the concept of separate property, and no one would wish to alter it.
  We are reaching the stage—some of my hon. Friends who do not like my intervention might reflect on this —where the matrimonial law with regard to property divisions in a common law relationship between man and woman is being more and more approximated to the situation which obtains within marriage, because the day has long since gone when the Court of Appeal consisted of disapproving old gentlemen who thought that two people who were not married but were living together were destined for hell. There was a time when some judged subscribed to that view. They have largely gone and the law which they sustained has been eroded. We should take the same line in this respect. I therefore want a clear answer from my hon. Friend the Under-Secretary of State on it.
  2.15 p.m.
  It has been said many times in this debate, and it is time that it was corrected, that there are no circumstances in which there can be rape within marriage. The hon. and learned Member for South Fylde touched on the fact that there is an exception but he did not develop it. It is odd that he should not have done so. The celebrated criminal case of Morgan v. Director of Public Prosecutions—the hon. and learned Member for Blackpool, North (Mr. Miscampbell) will remember it—raised the question of constructive rape. It laid down a definition of rape with regard to the unreasonableness of belief, or, at least, it was thought that it did. That had always been the law, but it was only then that outside organisations woke up and proceeded to misunderstand it. The principal defendant in the case was convicted of constructively raping his wife because he assisted others in an act of rape against her. There is, therefore, an exception in that respect. It has been completely forgotten by those who are
  1978
  resisting and those who are supporting the amendment.
  I do not wish to detain the House much longer because hon. Members will want to discuss other aspects. Even if we cannot do it in the Bill, as I have tried to do, perhaps not very successfully, by the amendments which I tabled but which were not selected, I hope that we shall be able to enunciate the doctrine of rape on a man by a woman. That would be pursuant to Section 2 of the Sex Discrimination Act 1975. [Interruption.] My hon. Friend is falling into the same error as Queen Victoria made. When the Criminal Law Amendment Act 1885 was passed, with subsequent persecution of homosexuals—it was known as the Labouchere Act which we repealed only in 1965, and thank goodness we did—it was said that it should be applied to lesbianism, and Queen Victoria, with her eminently practical but misunderstanding mind, said that it was impossible. Nobody thought of explaining to her that it was possible.
  If in the Morgan sense there can be constructive rape within marriage, I believe that a woman can commit rape on another woman by helping someone else. If that is so, is it so incomprehensible that there can be rape by a woman on a man? It is not just a question of physiological difference. Under the present law, indecent assault can be committed by a woman on a man or a boy; it frequently occurs. If a woman gets hold of a young, perhaps juvenile, male who is vastly younger and less experienced—
  Mr. Edward Lyons: On a point of order, Mr. Deputy Speaker. I hesitate to interrupt my hon. Friend when he gives out such gems as the fact that the only advice he can give about the difference between marriage and two people living together outside marriage is the right to rape, which is marvellous advice for the young perhaps, but not advice with which many of us would agree—
  Mr. Deputy Speaker: Order. What is the point of order?
  Mr. Lyons: The point of order is this. What have the points made by my hon. Friend in his latter remarks to do with Amendments Nos. 10 and 11? He is discussing whether rape by women is

  1979
  feasible, and in my submission it has nothing to do with the amendments.
  Mr. Deputy Speaker: There is no doubt that certain questions were put by the hon. Member for York (Mr. Lyon) to the hon. Member for Birmingham, Handsworth (Mr. Lee) which were not answered, but, unfortunately, there is nothing as far as I can see that does not conform to the Standing Order.
  Mr. Lee: I am obliged, Mr. Deputy Speaker. I shall deal with the point briefly. It is simply that, if the Bill is intended comprehensively to reform, revise and amplify the law of rape, it should in all fairness address itself also to that question. I have already said that the equality of the sexes demands it and that the logic of law reform demands it. We suffer too much from piecemeal reform of the law.
  I was saying that we know perfectly well that there are situations of a woman, as it were, seducing a much younger male person in circumstances which, if it were the other way round, would be sufficient to constitute a rape offence.
  Mr. George Cunningham: On a point of order, Mr. Deputy Speaker. The two amendments that we are supposed now to be considering relate to the circumstances, if any, in which, within marriage, a man can be convicted of raping a woman. There are later amendments, which may or may not have been called, bearing upon the point that my hon. Friend the Member for Birmingham, Handsworth (Mr. Lee) is raising of whether it should be the law that a woman can rape a man. But surely it is not right for him to be allowed to introduce that subject matter into the discussion of these two amendments? The fact that he does so seems to support the proposition that what he is doing is filibustering to talk the Bill out.
  Mr. Deputy Speaker: I am obliged to the hon. Gentleman for raising that point. The hon. Member for Birmingham, Handsworth (Mr. Lee) is making it abundantly clear that his latter remarks are entirely out of order, and I rule accordingly. They have nothing to do with the subject matter of Amendments Nos. 11 and 10.
  Mr. Lee: The one institution in this House with which I never argue, Mr. Deputy Speaker, is the Chair, and I accept what you say. I say a few words briefly, therefore, on Amendment No. 10.
  Mr. George Cunningham: Do the fair thing, John.
  Mr. Lee: I commend the amendment to the House. At least it recognises and puts on record a situation which is not, as it were, fraught with the same difficulty, logically and morally, as has subsisted in non-impeded marriage—that is, a marriage where there is no impediment to the partners, and they are living together. Despite what the hon. and learned Member for South Fylde has said, there should be no particular reason why we should not consider accepting that amendment. If we do, the matter can be taken further in another place, which has some uses sometimes, I suppose, and we might make a convenience of it in this case.
  Amendment agreed to.

Clause 2

  RESTRICTIONS ON EVIDENCE AT TRIALS TOR RAPE ETC.
  Mr. Lee: I beg to move Amendment No. 13, in page 2, line 1, leave out Clause 2.
  Mr. Deputy Speaker: With this we shall take the following amendments:
  No. 15, in page 2, line 1, leave out Clause 2 and insert:
  '2.—(1) At any trial of an alleged offence of rape no evidence shall be adduced and no cross-examination permitted relating to the sexual experience or sexual disposition of the complainant with any person other than the defendant save by leave of the judge on an application made in the absence of the jury.
  (2) the judge shall not give leave unless the evidence relates to—

  (a) the circumstances in which the defendant is alleged to have committed the offence which is the subject of the trial;

  (b) a rebuttal of evidence given at the trial by a witness called otherwise than by a defendant that the complainant is of good character in sexual matters;

  (c) the res gestere connected with any offence with which the defendant is charged at the trial;

  (d) previous conduct or disposition by the complainant in sexual matters which, if

  1981
  unchallenged, would lead to the conclusion that the complainant had acted as alleged by the defendant on the occasion when the offence was alleged to have been committed'.

  No. 14, in page 2, line 1, leave out from '(1)' to end of line 23 on page 3 and insert:
  '(1) If at a trial before the Crown Court at which a person is charged with a rape offence to which he pleads not guilty the judge is satisfied that it is irrelevant to issues arising in the trial to question the complainant regarding her sexual experience with any man other than the defendant the judge may rule that such evidence is inadmissible wholly or in part as he thinks fit.
  (2) An application to exclude such evidence in subsection (1) above may be made at any stage of the trial on behalf of the prosecution or in his discretion by the trial judge during the trial.'.
  No. 22, in page 3, leave out lines 32 to 43.
  Mr. Lee: I do not propose to be long. My hon. Friends seem to be under the impression that I am trying to talk out the Bill. I do not propose to be long-winded. [Interruption.] The more my hon. Friend the Member for Islington, South and Finsbury (Mr. Cunningham) interrupts, the longer I shall be. If he wishes to subside and go and have a cup of tea, I do not mind. He can come in again later.
  The real proposition here is that once again we are up against the problem of privilege in relation to these matters. We have had a rather lengthy debate on the difficulty concerning secrecy, and the matter reappears in Clause 2. One of the difficulties here is that those sponsoring the Bill are trying to limit the scope of cross-examination in relation to sexual matters. I am sorry that my hon. Friend the Member for Stoke-on-Trent, South (Mr. Ashley) is not here, because I would like to put him right on this subject.
  My hon. Friend seems to be under the impression that members of the Bar who cross-examine quite often, as I have had to do, put offensive questions to witnesses on instructions. Of course, they have to amplify them to some extent because most of the time, I suppose, one of the reasons why a professional advocate is engaged in a case is that he is thought likely to be more articulate than many of the people he represents. The clause, if it is passed as drafted,
  1982
  will restrict quite unfairly the scope of cross-examination. Apart from the nature of the case, just as any rape accusation carries with it imputations that are adverse to the character of the defendant, so in a sense inevitably any defence to a charge of rape other than the alibi situation — "it was not me but somebody else" —involves a measure of counter-imputation against the complainant, because the defendant is saying "Sex took place. It took place outside marriage but with consent. The complainant is a liar and I am telling the truth." That, in substance, really applies to almost every case other than the alibi situation.
  The trouble is that we are dealing with situations in which there is a high degree of emotion—situations made for the neurotic, the unbalanced and, indeed, the exhibitionist kind of person. It has always seemed to me unfair that there should be any restriction on cross-examination other than on matters which are totally irrelevant. There is here a point which perhaps non-lawyers may not appreciate, but let us forget rape for a moment. If in any case the defence is the line that the witnesses for the prosecution are liars and have made the story up, and if at the end of the day the defendant is convicted, the judge can and frequently does take demeanour into account in imposing sentence. In bridge terms it is 100 for the insult, if one plays it that way.
  Rather more appropriate to this situation is the law of defamation. If a person pleads justification, saying "Yes, I said it. I meant it and it is true" and he is disbelieved, and if it is proved that it was not true and was not justified, he pays the penalty in aggravated damages. Why should there be any restriction—subject to relevance and matters of order—on the power of cross-examination in relation to rape rather than anything else?
  2.30 p.m.
  Mr. Corbett: I do not mean to be offensive or to provoke my hon. Friend, but has he actually read the Heilbron Report and seen the importance which that report—which, I agree, is not infallible—attached to the question? In paragraph 110 it is stated that
  "some curtailment of unnecessary cross-examination of the woman is probably one

  1983
  of the most important and urgent reforms now required".
  Has my hon. Friend read that passage?
  Mr. Lee: Yes. I am aware not only of that but also of the fact, of which I do not think my hon. Friend is aware, that if as an advocate I began to ask a series of gratuitously offensive questions, quite clearly unrelated to the matters in hand, I should be called to order by any judge worthy of the name. But that is a different matter from being able to ask questions which are, in a general way, referable to the sexual character, conduct and demeanour of the complainant. If I were to start a cross-examination by asking "Mr. Snooks, did you poison your neighbour or did you poison two of your neighbours yesterday?" I should soon be called to order. I have used a frivolous example, but the House will know perfectly well what I mean.
  I have the greatest respect for the hon. and learned Mrs. Justice Heilbron, but I cannot see the logic of this approach. Why, in relation to the offence of rape, should there be considerably more hampering of a defendant's rights than in other cases?
  I hope that my hon. Friend accepts—I have assumed hitherto in the debate that he does—that the burden of proof and the same sorts of requirements apply to rape as to any other kind of criminal offence, namely that the defendant shall be proved beyond reasonable doubt to have committed the offence. If we accept that, however, we must accept also that there will inevitably be an element of offensiveness in the questions put in cross-examination.
  Mr. Ashley rose—
  Mr. Lee: Even with some restriction, it is still, I suppose, regarded as insulting—certainly by the complainant subjectively, if not by anybody else—for question to be put such as "of course, you are telling lies. You consented."
  Mr. Ashley: Is my hon. and learned Friend aware—
  Mr. Lee: I am not hon. and learned. I am not a "silk".
  Mr. Ashley: —that if he kills the Bill by a filibuster it will be one of the
  1984
  grossest acts of irresponsibility that I have seen in a very long time in this House? It will be gravely damaging to the interests of women, and certainly one of the most disgraceful episodes that I have ever known in the House. The House wants to listen to constructive suggestions. I hope that my hon. Friend will remember that some of us will never forget it if he talks out and kills the Bill.
  Mr. Lee: I shall answer that rather intemperate and emotive interjection in this way. If the Bill is as important as my hon. Friend believes it to be—I ask him to accept my assurance that I also regard it as important—the Government will no doubt give extra time for it, and rightly so. I ask my hon. Friend the Member for Islington, South and Finsbury to note that if there is any doubt about it I shall support him in any request to the Leader of the House for the matter to be given further time.
  What I am not prepared to do or to be a party to doing is to skimp through matters relating to an offence of the gravest character, carrying with it a sentence of life imprisonment. As the hon. and learned Member for Thanet, West (Mr. Rees-Davies) has made clear, any conviction means the ruin of the person convicted of this offence. I shall not derogate from my duties as a Member of Parliament merely because it suits my hon. Friend the Member for Stoke-on-Trent, South.
  Now perhaps I may return to the subject in hand. As I was saying, Mr. Deputy Speaker, in every cross-examination there is the possibility of an element of offensiveness. Practising members of the Bar —there are several of them here—have all had the distasteful experience of having to make accusations. I shall give an example which, I hope, will appeal to my hon. Friend the Member for Stoke-on-Trent, South. Members of the Bar are frequently asked to attack the character of policemen—perhaps when defending a particularly nasty and violent criminal. I do not think it would be right for me to go into personal experiences in this matter, but it is not a pleasant task when one may believe, in the privacy of one's own thoughts, that the accusations having to be made are in fact perjurious and impudent as well as insulting.
  I cannot see that it is more heinous to attack a woman's sexual character and to

  1985
  suggest that she has been promiscuous with A, B and Z than to say to a policeman "You thumped the living daylights out of the defendant"—who perhaps has about 26 convictions for violence— "in a police cell, you made up a confession and you forged his signature." Suggestions of that sort are just as insulting and offensive to a policeman as are the sorts of suggestion put to a complainant in a rape case.
  Policemen may be case-hardened and used to giving evidence in court, but do not let anyone imagine that they have no personal feelings or do not feel insulted by some of the accusations made against them. No doubt there are some tough "coppers" for whom it is all in a day's work to be accused of every crime under the sun, from witchcraft and sorcery to fraud and pinching the police canteen funds, but there are police officers who are deeply offended at suggestions put to them. This applies particularly to young officers newly on duty. They find it just as unpleasant an ordeal to have to be subjected to a barrage of offensive questions directed at their integrity as do complainants in rape cases.
  It would seem to be because of the neurotic obsession with sexual matters which somehow affects some hon. Members that it is being put forward that a complainant in a rape case should receive special privileges and special treatment. I cannot see why this should be so.
  A woman's propensity to sexual conduct of a particular sort may well be indicated by her conduct in relation to other persons. It may not be, and on the other hand it may be. It seems to me to be perfectly legitimate—always provided that an advocate does not go beyond his proper province—for him to put the sort of suggestion which is normally made in cases of rape. I know that my hon. Friend the Member for Stoke-on-Trent, South does not like the legal profession, but I hope he would be prepared to concede for the purposes of the debate that it is legitimate for an advocate to act in this way.
  In regard to this matter, I hope that we can go on having a more reasonable debate than some of the interjections which have been made in respect of my proposals so far. Suffice it to say that there will always be, especially in criminal
  1986
  cases, bitter accusation and counteraccusation, and someone may well be mortified by it. I cannot see why the law on rape should be any different from any other law.
  Mr. Alexander W. Lyon: The reason for Clause 2 is that the rules relating to the cross-examination of a complainant in a rape case have long been very much wider than the rules that allow relevant cross-examination of the character of a complainant in any other kind of case. They have now reached the stage where, despite the suggestion that advocates keep within reasonable bounds, women have been attacked about their sexual conduct in circumstances that could have no clear relevance to the circumstances in hand. It was that judgment that caused Heilbron to recommend this clause, and it is on that basis that the clause was included.
  My only doubt in Committee was whether the clause as drafted was too complex, and whether it would be possible simply to give the judge the discretion. As I indicated in Committee, the speeches of the hon. and learned Member for Thanet, West (Mr. Rees-Davies), persuaded me that it might be risky simply to leave it to a member of the legal profession, even though he had been elevated to the Bench, to decide what was relevant and what was not. Some of the hon. and learned Gentleman's hair-raising stories were amusing, but they were hardly indicative of a dispassionate view of what was relevant in a sex case. That failing has been reinforced from what has fallen from the lips of my hon. Friend the Member for Birmingham, Handsworth (Mr. Lee). In those circumstances, I remain of the view that I formed in Committee, that the clause is necessary.
  However, I think that the clause is too complex. It was my hope that the parliamentary draftsman would produce a simpler draft. I see that he has not. I sat down at five minutes' notice to draft Amendment No. 15. I do not pretend that it can adequately meet the circumstances of the case. That is why I am paid £5,000 a year and the parliamentary draftsman is paid a great deal more. He ought, at any rate, to sit down for rather longer and earn his keep in deciding a simpler draft, which meets the. circumstances of the case.

  1987
  I fully accept that the brief before the Minister shows the inadequacy of this drafting, but it is clear that, given a little time and a little more effort, a simpler way could be devised to meet the requisites of Clause 2 in a way that would make it much more easy to administer in court.
  The parliamentary draftsman should recognise that these matters are decided in the middle of a trial by a judge who has to make up his mind almost immediately whether an issue is relevant. It would be of more help if the language could be simpler than that at present contained in Clause 2.
  I have no doubt that the Bill will have difficulty with the judicial members of the other place if we do not simplify it, Therefore, all that I say in respect of Amendment No. 15 is that perhaps, before the Bill goes to the other place, the Government might look at it again to see whether it is possible, without altering the content of the clause, to make it more simple to read and therefore to administer at short notice.
  2.45 p.m.
  Mr. Edward Gardner: I wish to express my own disbelief in the efficacy of Clause 2 as it is drafted at present. As the hon. Member for York (Mr. Lyon) said, the aim of such a clause is to put in as simple language as possible, so as to gives as lucid and as clear a guide as can be drafted, rules that a judge can follow and that we can all understand.
  What we have in the clause is a minor piece of obfuscation. It is obvious that something must be done about it. I hope that I am not being too optimistic in saying that I am sure the Minister will take the point and see that something is done about it.
  The amendment of the hon. Member for York certainly has the virtue of being much simpler than the original clause. Provided that we have the undertaking that I hope will be forthcoming from the Minister, that the whole matter will be looked at again and that something more simple and plain, like the drafting of the hon. Member for York, ultimately will be part of the Bill, if we are not happy —because there is some uncertainty about whether we need a clause of this kind at all—at least we shall not have the
  1988
  feeling of disquiet that the present clause gives us.
  Mr. Lawrence: I have two objections to Clause 2. The first is that which has been adumbrated by the hon. Member for York (Mr. Lyon) and my hon. and learned Friend the Member for South Fylde (Mr. Gardner), which is that it is absurdly complex. It will raise a number of issues, any one of which could give grounds for appeal, with all that that involves—an appeal against the judge's rulings—which will unnecessarily waste time and public money and cause much human distress.
  Perhaps I may indicate what will happen if the clause is left in the Bill. Counsel appearing for someone who has been convicted of this offence may question, in a higher court, whether the judge might reasonably have been satisfied; what is relevant generally; what is relevant in this case; what the words "disposition in sexual matters" mean; what is "a striking relationship"; what are "matters connected with a way"; and, really, what the whole of subsection (3) means.
  Reading through the subsection quickly, it appears to say that cross-examination as to the victim's disposition in sexual matters is not relevant unless the judge considers it to be relevant, which is an absurd proposition. Therefore, I am concerned not only about the clause as it stands—I say this out of no disrespect for the hon. Member for York, who served in his position with such recent distinction—but about the complexity of the amendment.
  I hope that this whole matter will be reconsidered from the point of view of complexity. There does not seem to be any point in making more work for lawyers, because that means trouble for everyone else in our society who has to pay money.
  My second objection is even more fundamental. I fear that subsection (3) may lead to injustice. A woman with a past can be the victim of rape—that is established legal precedent—but she is less likely to be the victim of rape than a maiden aunt, an unpromiscuous virgin, or a respectable married woman. If a defendant is to be stopped from drawing to the attention of the jury, which is to decide the entire issue, the question of

  1989
  consent, which in many cases is a very difficult matter for it to consider, and if he is to be denied the right to draw to its attention the fact that the woman has a past—if she has one—which is not an issue that necessarily goes to the definition of truth at that stage, I am worried that the jury may take a completely different view of the case than if it had known that the lady had a past.
  Any woman who is subjected to allegations that are found to be unjustified by the jury needs to be protected. I am often accused of being a bit reactionary, but I agree that it has always been wrong to publish unjustified allegations. It is right that the victim should be protected. That is why we have given the woman that right in the Bill. by anonymity. However, unfounded accusations would now be confined to the ears of the very small public that attends most courts these days, and the cars of those who are concerned with the trial itself. In view view that is a small price to pay for the avoidance of any possibility of injustice to the accused in an offence as serious as rape.
  I have real doubts about the whole tenor of the clause. Even if it were reworded and redrafted to avoid some of the complexities, I should still have those doubts. It may not undermine the other important aspects of the Bill, and we have no desire to impede the Bill's passage, but I am worried. I know that hon. Members on both sides of the Chamber, especially some of the lawyers, are worried about the possibility that the restriction on cross-examination will lead to some injustice. I ask for the matter to be reconsidered.
  Mr. John: The effect of the clause is to give effect to the Heilbron Group's recommendations Nos. 3, 4, 6, 7, and, in most part, 5. In answer to my hon. Friend the Member for Birmingham, Handsworth (Mr. Lee), one either accepts the great care with which the group went into these matters, and the conclusions at which it arrived, or one does not. The group, whose chairman, as my hon. Friend says, is a learned jurist, came to the conclusion that the test of relevance was not enough. That has been echoed by my hon. Friend the Member for York (Mr. Lyon) and the hon. Member for
  1990
  Burton (Mr. Lawrence). The group took the view that it was necessary to introduce something to supplement that test.
  It is said by the hon. Member for Burton and by my hon. Friend the Member for Handsworth that the clause may have the effect of shutting out cross-examination that would otherwise be material, and that it will be a great restriction upon the defendant, and especially on the advocate. There is provision, by leave of the judge, to cross-examine on restricted matters other than with the leave of the complainant. As I have said, the leave of the judge must be obtained before that is done. We believe this to be the best compromise to take account of the Heilbron point that cross-examination has ranged much wider than was strictly relevant to the case. I could quote the paragraphs from the report, but the hour is late and I hope that hon. Members will forgive me for not doing so.
  The clause, as drafted, has appeared to take account of cross-examination that has ranged rather wider than the trial issues and may not have been germane to the issue in hand. I accept immediately from my hon. Friend the Member for York that it is a long, complex and intimidating clause. It has been given consideration in the interim, although that consideration has so far been abortive. Nevertheless, consideration has been given. I think that all hon. Members will recognise that there is a need to draw a balance between reasonable convenience in reading and the comprehensive nature of the clause, which is designed to meet a number of cases and the concepts that Heilbron adduced. Nevertheless, I am happy to give the undertaking than I shall resume the search for further simplification. Without making any promises, I shall see what I can do to make the clause simpler, more relevant and more readable.
  I am not prejudging the situation. It may be that at the end of the day it would be better to accept the present draft, although it is long and indigestible, than a shorter draft which does not meet a number of circumstances. We must throw ourselves on the mercy of the legal acumen of the various Law Lords and others in another place.

  1991
  I do not know whether my hon. Friend the Member for York, who rather disarmingly moved his amendment by saying that he thought it to be defective and knew it might be subject to objection, wants me to deal with his amendment in detail. I hope that he will accept my assurance that it is defective in a number of particulars.
  As I have said, we shall have another look at the clause to see what we can do with it. Given that assurance, I hope either that my hon. Friend the Member for Handsworth will ask leave to withdraw the amendment, which seeks to delete the clause, or that the House will reject the amendment. We believe, in line with the Heilbron Group, whose report we accept, that the clause is necessary to give protection to those who are confronted with matters that are not strictly relevant, and are more hurtful than germane to the trial. It is in that sense that I hope the House will agree—
  Mr. Rees-Davies: The Minister of State has not mentioned Amendment No. 14, which seeks to insert the words:
  "(1) If at a trial before the Crown Court at which a person is charged with a rape offence to which he pleads not guilty the judge is satisfied that it is irrelevant to issues arising in the trial to question the complainant regarding her sexual experience with any man other than the defendant the judge may rule that such evidence is inadmissible".
  As I understand it, the hon. Gentleman is not suggesting that the amendment is not in proper form. What does he say about its being fair and proper to leave the matter of the relevant issue to the judge?
  Mr. John: I have dealt with the speeches that have been made on this group of amendments rather than with all the amendments that have been tabled. However, I shall deal with the point that the hon. and learned Gentleman has raised. It seems that if the only test is one of relevance, as the hon. and learned Member for South Fylde (Mr. Gardner) stated earlier, it is strictly not necessary to enshrine it in a Bill of this sort. In fact, it is already there.
  The Heilbron Group's report says that the relevance test is too narrow and that further efforts need to be made. That will give rise to the issue of the relevance of
  1992
  a great deal of evidence that the Heilbron Group considered should be excluded. It is the view of the Government that the Heilbron Group's report on this particular is accurate and that a more detailed and relevant test should be adduced.
  It is for that reason that I hope that the hon. and learned Gentleman will not wish to press Amendment No. 14. Since Amendment No. 22 is consequential upon it, he will not expect me to answer substantively on that.
  3 p.m.
  Mr. Rees-Davies: The Government have not expressed to the country the very serious nature of what is proposed in the clause. It is proposed to prefer to stake the reputation of a witness or complainant against the liberty of the accused. It is admitted that relevant evidence that might secure an acquittal of the accused, whose liberty is at stake, is to be excluded, in the interests of preserving the reputation of the witness or complainant whose liberty is not at stake.
  That is a totally untenable proposition. It is said that so important is it to protect the reputation of the complainant that evidence that may be harmful to it is to be excluded, even although at present the judge will rule that such evidence is a relevant and material factor to be taken into account in order to secure the liberty of the accused person. Once the issue is stated in that way, I hope that my hon. Friends will agree that it is a proposition to which we cannot accede. I do not believe that in another place their Lordships will accede to it, either.
  On Clause 2 one has to consider whether there are any particular limitations that can be applied within the ambit of the clause which are not relevant to the liberty of the accused person—and I think that one can say that they are so stated. But it has not been in accordance with the tradition of this House—and there is very little, if any, precedent for it—that there should be interference in the laws of criminal evidence to such an extent as to interfere with the discretion of the judiciary in determining what it regards as evidence relevant to the defence of the accused person.
  In those circumstances we should be very chary of introducing a clause, like Clause 2, which is solely related to the

  1993
  law of evidence and is also to a very large extent supported by a large majority of those without experience of criminal trials. With the exception of the lady judge who presided over the advisory group, a very large number of the other members—and I say nothing against them—were psychiatrists, children's officers and so on, who had very little knowledge of the criminal law. The eminent lawyer from Canterbury who was associated with the group is a commercial, not a criminal lawyer, and the same is true of the other lawyer member of the group. If that group were set up again today, and if it were comprised to a larger degree of those with experience of the criminal law, I do not believe that it would have come to the same conclusion.
  It was a hand-picked group, not in the sense that it was fixed in any way—I do not mean that—but in the sense that it was widely composed. I believe that it transgressed into the criminal law with insufficient experience of what it was seeking to do.
  The clause is most unsatisfactory. Not only is it very lengthy; it is most confusing in many aspects. It provides that leave would not be given for the exclusion of evidence except on application by or on behalf of the defendant, made to the judge at the trial in the absence of the jury. Such a provision does not need to be included, because it is procedural practice of the courts to provide that matters of this sort are heard by the judge in the absence of the jury.
  The clause goes on to specify the restricted matters. No ordinary juryman, on a direction by a judge, could begin to understand what this is about, and it is even difficult for lawyers to understand it. Referring to the application, it says
  "If … the judge is satisfied that it is made wholly or mainly for the purpose of showing that a complainant behaved on a specific occasion in accordance with her disposition in sexual matters".
  It is difficult to judge until the evidence has been heard.
  Then it says:
  "the judge shall treat the restricted matters to which the application relates as not being of such relevance …unless he is also satisfied that there is a striking relationship between—

  (a) a way, or matters with a way, in which the complainant is alleged to have behaved on that occasion; and

  1994

  (b) the restrictive matters in respect of which the application is made or connected with those matters."

  We debated this at some length in Committee. Labour Members took a completely different view from me about relevant matters of disposition. I thought that certain matters that showed the disposition of a lady on previous occasions would be treated as relevant by a judge. The hon. Member for York (Mr. Lyon), who was then speaking from the Government Front Bench, totally disagreed with me. He was perfectly entitled to his opinion.
  Under this clause different judges would arrive at very different conclusions about relevant matters which they would permit to be the subject of cross-examination.
  In the ordinary way a cross-examiner on behalf of the defendant raises such matters only when the question of consent arises. He will deal only with the woman's disposition in relation to sexual intercourse with the defendant, or her previous behaviour with him. There are a number of occasions on which a cross-examiner will be interested in a woman's general reputation. If she is a woman whose disposition is such that she is willing to take money for sexual intercourse, either before or after the event, it may well be relevant to show that she is a woman of such loose moral character that, just as she was willing to take money and be a prostitute on other occasions, likewise she was minded to have sexual intercourse with the defendant.
  As I understand it, Rose Heilbron would take that right out of Clause 2. That is wrong. Some judges might rule that that was relevant matter for cross-examination. In any event, I would wish it to be open to the defence to cross-examine about such matters if it were a right and proper case.
  The defence might not decide to cross-examine along those lines until the middle of the cross-examination. It might not decide to take that line at the beginning. It might want to see how the case was running, and whether the evidence was directly pertinent. Those are decisions for counsel in charge of the case, subject to the judge ruling that it is relevant and proper for the defence so to cross-examine.
  Mr. Lee: Is there not another aspect? It may come to the notice of the defence lawyers that the woman concerned has a psychological condition that leads to nymphomania. That involves her having sexual relations with a large number of persons. Is it not desirable for cross-examination in certain circumstances to go beyond what is specified? Therefore, cross-examination about sexual acts with other persons unrelated to the man charged could be germane. That should be included.
  Mr. Rees-Davies: I entirely agree with that proposition. That could arise in certain circumstances. It might well be proper to include a clause to that effect. In reply to my hon. and learned Friend the Member for South Fylde (Mr. Gardner), the Minister of State said that the amendment that I tabled was not necessary because it merely reinforced the existing law. But it may still be worth reinforcing the existing law to try to ensure that the judge's attention is drawn to the burden of proof and that this class of cross-examination is not permitted without consideration being given to it.
  The Bashir and Krausz cases—Krausz's case in particular—seem to be directly relevant. The Heilbron Group was against those cases. I think that we should ensure that the judges have the opportunity of considering these matters.
  My hon. Friend the Member for Burton (Mr. Lawrence) rightly said that the sting of the complaints by complainants has been lifted. The legitimate grievance of women complainants has been that, hav-
  ing laid complaints and gone into court, they have been subjected to the media—the local and sometimes the national Press—which have reported the questions that have been put which reflect upon their conduct and reputation, even when they have behaved perfectly properly. The cloak of anonymity that the House will no doubt agree to give in respect of the hearing of their evidence in courts so that it will not be reported is the great protection.
  I do not believe that the nature of cross-examination by defending counsel has led to the gravamen of these complaints. They are very few cases where that arises. It does not usually arise unless the solicitor and the client instruct counsel to raise it. Such cases are always in the Crown courts, not the minor courts. Therefore, the complainant has the protection of the judge and of counsel, who will ensure that the questions do not go wider than they should in a fair cross-examination.
  In the case of evidence that is to be limited, because it is said that it will sully the reputation of the complainant, the fact that such evidence is no longer to be reported means that there is no reason why the complainant's reputation should be sullied in any way. If we are to weigh the advantages and disadvantages, the scales should always come down, as justice always should, on the side of the defendant.
  Question put, That the amendment be made:—
  The House divided: Ayes 15, Noes 42.

  Division No. 152.]

  AYES

  [3.14 p.m.

  Boyson, Dr Rhodes (Brent)

  Lester, Jim (Beeston)

  Weatherill, Bernard

  Clark, Alan (Plymouth, Sutton)

  Miscampbell, Norman

  Wells, John

  Cockcroft, John

  Shersby, Michael

  Gardner, Edward (S Fylde)

  Sims, Roger

  TELLERS OF THE AYES:

  Gow, Ian (Eastbourne)

  Stradling Thomas, J.

  Mr. W. R. Rees-Davies and

  Havers, Sir Michael

  Townsend, Cyril D.

  Mr. John Lee.

  Lawrence, Ivan

  NOES

  Archer, Peter

  English, Michael

  Mikardo, Ian

  Armstrong, Ernest

  Ennals, David

  Mulley, Rt Hon Frederick

  Ashley, Jack

  Fletcher, Raymond (Likeston)

  Pardoe, John

  Beith, A. J.

  Fowler, Gerald (The Wrekin)

  Parker, John

  Bishop, E. S.

  Harrison, Walter (Wakefield)

  Peart, Rt Hon Fred

  Bottomley, Peter

  Janner, Greville

  Perry, Ernest

  Carter, Ray

  John, Brynmor

  Richardson, Miss Jo

  Cartwright, John

  Kaufman, Gerald

  Sandelson, Neville

  Cocks, Michael (Bristol S)

  Lipton, Marcus

  Silkin, Rt Hon S. C. (Dulwich)

  Cox, Thomas (Tooting)

  Lyon, Alexander (York)

  Silverman, Julius

  Cunningham, G. (Islington S)

  McNamara, Kevin

  Stallard, A. W.

  Duffy, A. E. P.

  Meacher, Michael

  Summerskill, Hon Dr Shirley

  Tuck, Raphael

  Whitehead, Phillip

  TELLERS FOR THE NOES:

  Wainwright, Richard (Colne V)

  Williams, Sir Thomas

  Mr. Edward Lyons and

  Walker, Harold (Doncaster)

  Wise, Mrs Audrey

  Mr. Robin Corbett.

  Question accordingly negatived.
  Mr. Lee: I beg to move Amendment No. 18, in page 2, line 25, leave out 'such a striking'.
  There need not be much discussion of the amendment because it is to some extent enveloped in the discussion on Clause 2 as a whole. Many of the strictures passed by the hon. and learned Member for Thanet, West (Mr. Rees-Davies) on the clause as a whole are strikingly—I use the word in a double sense—illustrated by the use of the unusual and imprecise term which appears in the amendment, "such a striking" relationship. I propose to read the relevant subsection, otherwise it may be difficult to follow the argument.
  Clause 2(3) is worded as follows:
  "If on such an application the judge is satisfied that it is made wholly or mainly for the purpose of showing that a complainant behaved on a specific occasion in accordance with her disposition in sexual matters, the judge shall treat the restricted matters to which the application relates as not being of such relevance as is mentioned in the preceding subsection unless he is also satisfied that there is such a striking relationship between —

  (a) a way, or matters connected with a way, in which the complainant is alleged to have behaved on that occasion; and

  (b) the restricted matters in respect of which the application is made or matters connected with those matters,

  as to suggest that her disposition in sexual matters was to behave in a way similar to that in which she is alleged to have behaved on that occasion."
  Lawyers are always accused of being pedantic in their attempts to test the precision of words. Sometimes that accusation is justified, but it is our duty to apply a magnifying glass to words and definitions to see whether they are all that they are supposed to be. My main objection to the wording is that it has no meaning. There either is or is not a relationship with a complainant's normal sexual propensity of a kind that it is right for the judge to admit. The wording does not help the complainant in a genuine case to sustain the complaint, and it does not help the defendant to rebut it. Implicit in this choice of words there is, I suppose, an intention, however ill-defined —perhaps unconscious—to limit the
  1998
  judge's discretion to extreme cases. The objections which I raised to the clause as a whole are exemplified in this facet of it.
  Without going over the ground that was covered in the debate on Clause 2, which may still receive attention in another place, it seems to me that the rationale behind the attitude of the movers of the Bill is that they want to make it more difficult for a defendant to rebut an accusation of rape and easier for a complainant to pursue an accusation of rape and be as little embarrassed as possible on the way. Again, that begs the question. One can have nothing but sympathy for the person who makes a genuine complaint. If the complaint is not genuine, it is perjurious and wicked. One can have no sympathy whatever with the complainant in that case.
  3.30 p.m.
  I wish that at an earlier stage of the Bill attention had been directed to making it easier for a person who had been acquitted of a rape case to bring an action against the complainant. That can be effectively dealt with only in a revision of the law relating to malicious prosecutions generally. I hope that that will happen, but at present we must deal with the situation of malicious prosecution as it is. Such accusations are rare indeed, and are rarely successful. We cannot rely on that. The least we can do is to remove from the clause tendentious, emotional, imprecise and basically unhelpful phrases of this kind which at best are irrelevant and at worst harmful to the interests of justice. We must always bear in mind throughout all criminal matters the right to safeguard the interests of a defendant and ensure that no conviction takes place unless a jury is completely convinced and sure that it is well-founded.
  The hon. and learned Member for Thanet, West said that it is unusual for this House to seek to hamstring a judge's discretion in sifting evidence in a criminal matter. The most important function of a judge, apart from summing up in a case to a jury at the end of a trial, is to ensure that the case is fairly conducted on the way to that summing up. That may be said to be obvious.

  1999
  but one of the ways of ensuring fairness is to make certain that a defendant is not being improperly hampered.
  I suppose that I should be out of order if I were to refer to a well-known trial now taking place at the Central Criminal Court, but one of the duties of a judge is illustrated by that trial. However, I do not want to stray into that matter because there are many other matters in this Bill that require consideration. I have made my point clearly and do not propose to say more at this stage.
  Mr. John: My hon. Friend the Member for Birmingham, Handsworth (Mr. Lee) has said that the purpose of his amendment is to bring greater precision to Clause 2 in dealing with ancillary matters which can form the basis of cross-examination about other occasions.
  Let me briefly read to the House the recommendation of the Heilbron Advisory Group which considered this matter at some length:
  "The trial Judge's discretion should be guided by and based on principles set out in legislation."
  This effectively answers the point about any matter involving any fettering of the judge's discretion. Secondly, in 4(a) the recommendation relates to evidence where
  "behaviour on the part of the complainant … was strikingly similar to her alleged behaviour on the occasion of … the alleged offence."
  In my view, the test that my hon. Friend propounds is too vague and would not in its effect shut out the questions to which the Heilbron Advisory Group took exception. Heilbron favoured a strict test, and I believe that that is the will of the House, as it was manifested by the last vote that it should be so. My hon. Friend has legitimately said that it is not his will. However, one has that position and the House has now approved the clause, which strictly limits and confines the cross-examination to that which the Heilbron Advisory Group considered to be relevant to the conduct of the case.
  I would not want anyone to go away with the impression, on the basis of some statements of my hon. Friend the Member for Handsworth, that what the Government or what my hon. Friend the
  2000
  Member for Hemel Hempstead (Mr. Corbett) are seeking to do by the Bill is to hamstring the defendant in such a way that he does not get a fair trial. I believe that there is a way of securing a fair trial on a basis that does not go into every squalid, gossip-type situation with regard to the sexual propensities or reputations of the complainant.
  Mr. Lee: Does my hon. Friend agree that the term "such a striking" really connotes an extreme situation?
  Mr. John: I believe that the connotation is that it must show relevance to the incident which is the matter or inquisition at the trial concerned. If that is so, I make no apology for that. I believe that the wording achieves what the Heilbron Advisory Group and the majority of Members of the House of Commons want. It is for that reason that I hope that my hon. Friend will not press the amendment.
  Amendment negatived.
  The following amendment stood on the Order Paper:
  No. 19, in page 3, leave out lines 14 to 16.
  Mr. Lee: I shall not detain the House long on this amendment. [HON. MEMBERS: "Withdraw it."] The wording is quite brief. It is in relation to questions put to a witness. In determining at a trial whether questions are proper, a number of matters are illustrated. The amendment seeks to delete paragraph (a), which refers to
  "a complainant's sexual experiences with the defendant or a complainant's disposition in sexual matters with respect to the defendant".
  Again, as has been said in relation to the whole clause, there is in the back of our minds always the fear that a judge may construe this so restrictively as to make it almost impossible for a defendant to conduct his defence properly. We must not forget—I hope that I shall not transgress the rules of order in saying this—that judges, like the rest of us, differ in temperament and in their approach to matters.
  Some judges have a reputation, fairly, for being lenient as to the scope of cross-examination within the rules. Others do not have quite the same reputation. Anything that tends to reduce the elbow room for an advocate makes his task more

  2001
  difficult, particularly when he is dealing with a judge who is inclined to impose a restrictive approach to these matters.
  One of the difficulties in drafting amendments to a Bill—I drafted a number of my amendments some days ago—is that one never knows in advance which amendments will be selected. Therefore, one tables separately amendments which perhaps could be bracketed together, not knowing whether they will be bracketed. The Chair has been kind to me and indulgent in a way that I was not expecting on this amendment.
  Mrs. Audrey Wise: Why talk then?
  Mr. George Cunningham: Why did not my hon. Friend serve on the Committee to make these Committee points?
  Mr. Lee: My hon. Friend knows that I did not take part in the Second Reading debate. I take matters of order from the Chair, not from my hon. Friend.
  Mr. George Cunningham: It is not a matter of order; it is common sense.
  Mr. Lee: No doubt my hon. Friend will have an opportunity to intervene.
  As I would have said a few moments ago but for the interruptions, I do not propose to press the amendment.
  Mr. Deputy Speaker (Mr. Bryant Godman Irvine): The next amendment is Amendment No. 23.
  Mr. John Lee: This amendment falls into the same category, and I do not propose to press it.
  Mr. Rees-Davies: On these restricted matters, the amendment—
  Mrs. Wise: On a point of order, Mr. Deputy Speaker. On what amendment is the hon. and learned Gentleman speaking?
  Mr. Deputy Speaker: If he is not speaking on Amendment No. 23, he is out of order.
  Mr. Rees-Davies: I am speaking on Amendment No. 23.
  Mrs. Wise: The amendment has been withdrawn.
  Mr. Deputy Speaker: That was not my impression. I was under the impression that the hon. Member for Birmingham,
  2002
  Handsworth (Mr. Lee) said that he proposed to take no further action in the matter. That leaves it open to the hon. and learned Member for Thanet, West (Mr. Rees-Davies) to move it if he is so minded.
  Mr. Rees-Davies: That is what I propose to do, Mr. Deputy Speaker.
  I beg to move Amendment No. 23 in page 3, leave out line 40.
  The essence of Clause 2 turns on what I call the restricted matters. The defendant's counsel is not to be entitled to cross-examine on three matters. The first is
  "the sexual experiences … of a complainant with a person other than the defendant".
  I understand that. They would be relevant only in special circumstances.
  The second matter is her
  "disposition in sexual matters excluding her disposition with respect to the defendant".
  Again, that would seldom be relevant. It is a question of how she conducts her affairs and it has nothing to do with the defendant. It can be relevant only in limited circumstances.
  The third matter is her
  "reputation in sexual matters".
  I have always taken the view that if one is able to establish that a woman is a woman of thoroughly ill repute in sexual matters—if she is a known prostitute or is known to associate in particular public places as a nymphomaniac—if it is a question of consent and the matter being determined by the jury is whether she went with the man voluntarily for the purpose of sexual intercourse, her reputation in sexual matters must be relevant, and I would not wish it to be treated as a restricted matter.
  If the whole question is to be considered again, the Home Office, in the light of its undertaking to consider the clause again, must deal with this matter if it is not prepared to leave it to the ordinary rules of evidence to enable the judge to decide whether a woman's sexual reputation is relevant in the circumstances of the case. In many instances it would not be; in some it would be relevant.
  3.45 p.m.
  Mr. John: Let me make clear what I undertook to do. I undertook to look

  2003
  at the drafting of the clause to see whether it could be dealt with in a more readable and concise form. I would not want certain glosses to be put on that undertaking.
  The effect of this amendment would be to except the complainant's reputation from the restricted matters definition, and therefore, evidence on it could be adduced without leave of the judge. I believe "reputation" to be the vaguest concept possible. If, however, it is relevant to the trial, the defendant has the opportunity, by leave of the judge, to put it. I believe that it is safer to leave the matter to the judge to consider whether it is relevant. To make it an unrestricted matter would, on so vague a concept as reputation, be thoroughly harmful.
  Amendment negatived.

Clause 3

  APPLICATION OF SECTION 2 TO COMMITTAL PROCEEDINGS, COURTS-MARTIAL AND SUMMARY TRIALS
  Mr. John: I beg to move Amendment No. 25, in page 4, line 41, after 'substituted', insert:

  '(i) in the case of a trial by court-martial for which a judge advocate is appointed, a reference to the judge advocate, and

  (ii) in any other case,'.

  This would enable a judge-advocate, where one is appointed, to hear and determine applications under Clause 2 for leave to adduce evidence or ask questions in cross-examination instead of the courts-martial itself, because apart from that it would be an unqualified legal body.
  Mr. Lee: Having been perhaps a little churlish to my hon. Friend on a number of matters today, I would like to add a word or two of appreciation of what is in the circumstances an improvement. Perhaps I might also be allowed to say a word about the conduct of courts-martial. There cannot be many instances in this context in which they are likely to exercise their jurisdiction, but there are nevertheless some cases where they may do so.
  Over the years, one has seen the power of the president of a court-martial diminish and the power of the judge-
  2004
  advocate enhanced. The judge-advocate used to retire with the lay members of the court-martial to consider the verdict and not merely advise them on points of law and sum up in judicial fashion. I believe that that procedure has gone and that it is the practice now for the judge-advocate not to retire with the members of the court and, therefore, not to give advice—as it were, in secret—about the way matters are conducted.
  I should like to know from my hon. Friend, since he has raised the question of courts-martial and their jurisdiction, in what cases it is likely that they will exercise their jurisdiction. For a long time after the war, almost all civil offences in Germany by British subjects. including rape presumably, were dealt with by courts-martial. I understand that this was a hangover from the immediate post-war situation. Anomalously, not only were British Service men subject to military law but British civilian personnel in Germany were justiciable by courts-martial.
  I do not for one moment suggest that the courts-martial were not conducted in the most proper way. In my limited but valid experience, I have always found them to be scrupulously correct, fair, and unoppressive towards advocates appearing before them, or towards military officers performing the duty of advocate. Nevertheless, the House is entitled to know a little more about the likely applicability of this clause. It is no good putting it in by a side wind and regarding this as a tidying up operation. The House is entitled to know the circumstances in which a judge-advocate is likely to have to apply it.
  Mrs. Wise: Will the hon. Member accept that this speech is a yet further example of staggering irrelevancy, and that the people of the West Midlands whom he represents—and especially the women—will not allow it to go unmarked that he has deliberately impeded a Bill designed for the greater protection of women?
  Mr. Lee: I am flattered to be said to represent the West Midlands. As far as I know, I have been sent here by the electors of the Handsworth division of Birmingham. As to the irrelevance, that is a matter for the Chair and not for my hon. Friend.

  2005
  What I should like to know from my hon. Friend the Minister of State is—and again I choose my words carefully; I do not want him to think that I am imputing disrespect—how experienced are the judge-advocates who are likely to be administering this matter? We have just had a very long debate on Clause 2 and I have been very helpful in withdrawing one amendment and speaking very briefly on another. Nevertheless, the interpretation of the clause and the ruling upon the admissibility of questions would tax a very experienced High Court judge. Whereas it is not invariably the case, as I understand, that rape offences are tried by a "red" judge in this country, they are always tried by a judge of very considerable experience. When my hon. Friend the Minister of State replies, perhaps he will help the House, in seeking to judge the value of the amendment he has proposed, by telling us a little about the qualifications of the judge-advocate and the experience expected of a judge advocate in trying these matters.
  Am I right in thinking that most civilians engaged in the military establishment, so to speak, have a notional rank for the purpose of messing, status, and so forth—in other words, a status rank? Will my hon. Friend be good enough to tell the House what is the status rank of a judge advocate at a general court-martial trying a case of this kind? What is the rank of the president of the court? I suppose that one would not have a court-martial with a president holding a rank lower than that of full colonel. Is that right? I imagine that it ought to be at "red tab" level. I wish to know not only the rank of the president but also the notional status rank of the judge-advocate.
  This question may betray my ignorance of military law, but are there any circumstances in which there would be a trial for a rape offence at a district court-martial at which a judge-advocate was not present? I am not entirely clear about the position, from the amendment. Its wording seems to imply that there would inevitably be a judge-advocate present. I know that in certain circumstances there can be a district courts-martial, dealing with difficult cases, at which a judge-advocate is present, but it is not the invariable practice.
  2006
  I wish to know from my hon. Friend, in relation to his amendment, first, whether such a case would be tried only by a general court-martial. Secondly, am I to understand that the rank of the president would not be lower than that of staff officer? Thirdly, may I know the status rank of a judge-advocate in such a case? I assume that it would not be less than field officer rank. One would suppose that the president of the court would be a brigadier or major-general, and that the status rank of the judge-advocate would be that of full colonel.
  Mr. John: In so far as some of the disquisitions on military rank are relevant, I can answer my hon. Friend by saying that under military law certain matters are left to the Judge Advocate General in general courts-martial. He is the sole authority to advise on matters of law. He is usually an experienced barrister, who is appointed, and he has considerable experience of trying these matters. Therefore, the phantoms that my hon. Friend has been conjuring up are not substantial.
  Question put, That the amendment be made:—
  The House proceeded to a Division—
  Miss Jo Richardson and Mr. Robin Corbett were appointed Tellers for the Ayes and Mr. John Lee was appointed a Teller for the Noes, but no Member being willing to act as a second Teller for the Noes, Mr. DEPUTY SPEAKER declared the Ayes had it.
  Amendment accordingly agreed to.

Clause 4

  ANONYMITY OF COMPLAINANTS IN RAPE ETC. CASES
  Mr. John: I beg to move Amendment No. 27, in page 4, line 44, leave out 'the defendant, or'.
  This is consequential on the insertion of the new clause. It removes the words put in in Clause 4 to make anonymous the name of the defendant.
  Amendment agreed to.
  Mr. Rees-Davies: I beg to move Amendment No. 28, in page 5, line 19, after 'trial', insert before any conviction'.
  Mr. Deputy Speaker: With this, we may take the following amendments:
  No. 29, in line 26, at end insert:
  ';but a direction shall not be given in pursuance of this subsection by reason only of an acquittal of a defendant at the trial'.
  No. 30, in line 26, at end insert:
  '(4) If at the conclusion of a trial at which any person is charged with a rape offence the accused is acquitted the name of the complainant should be published unless the judge rules otherwise'.
  No. 31, in line 39, at end insert:
  (5) Restrictions upon the disclosure of identity of the complainant shall not apply to any rape offence after the conclusion of an inquiry at a magistrates' court by examining magistrates where the magistrates concerned decided that there was no case to answer and dismissed the case.'.
  No. 32, in page 6, line 45, at end add—
  'Provided always that no restrictions stipulated in this section shall apply after acquittal of a person charged with any rape offence if such acquittal shall have been caused by the direction of the trial judge before or at the end of the case for the prosecution; or if at the conclusion of a trial resulting in the acquittal of the defendant, costs, or part of costs, are awarded to the defendant against: the complainant or out of public funds.'.
  Mr. Rees-Davies: I think that it is now agreeable to the House that there should be anonymity in respect of complainants in rape cases and also that defendants—
  It being Four o'clock, further consideration of the Bill, as amended, stood adjourned.
  Bill, as amended (in the Standing Committee), to be further considered on Friday 18th June.

  REPRESENTATION OF THE PEOPLE (ARMED FORCES) BILL
  As amended (in the Standing Committee), considered.
  Motion made, and Question, That the Bill be now read the Third time, put forthwith pursuant to Standing Order No. 56 (Third Reading), and agreed to.
  Bill accordingly read the Third time and passed.

  SOLICITORS ACT 1974 (AMENDMENT) BILL
  Order for Second Reading read.
  Hon. Members: Object.
  Second Reading deferred till Friday 11th June.

  TRANSPORT (AMENDMENT) BILL
  Order for Second Reading read.
  Hon. Members: Object.
  Second Reading deferred till Friday 18th June.

  OBSCENE PUBLICATIONS (AMENDMENT) BILL
  Order for Second Reading read.
  Hon. Members: Object.
  Second Reading deferred till Friday 18th June.

  SWIMMING POOLS (SAFETY REGULATIONS) BILL
  Order read for resuming adjourned debate on Second Reading [14th May].
  Hon. Members: Object.
  Mr. Deputy Speaker (Mr. Bryant Godman Irvine): What day? No day named.

  DETONATORS BILL
  Order read for resuming adjourned debate on Second Reading [30th April.
  Hon. Members: Object.
  Mr. Deputy Speaker: What day? No day named.

  HOMES BILL
  Order read for resuming adjourned debate on Second Reading [20th February].
  Hon. Members: Object.
  Debate further till Friday 11th June.

  HOLIDAY CHALET SITES
  Motion made, and Question proposed, That this House do now adjourn. —[Mr. Thomas Cox.]
  4.1 p.m.
  Mr. Roger Moate rose—
  Mr. Alexander W. Lyon: On a point of order, Mr. Deputy Speaker. I am sorry to intervene in the Adjournment debate of the hon. Member for Faversham (Mr. Moate). I have put down Question No. 9 for Written Answer today as a priority Question. As I understand the system of priority Questions, the answer must be given on the date on which the Member asks for the answer. The answer is of some significance for the debate that will take place on Monday, but I still have not received an answer from the Home Office. I was wondering, Mr. Deputy Speaker, whether I am correct in my interpretation of the rules and, if so, whether there is any way in which the Home Office could be persuaded to give me an answer at the earliest possible moment, and before the debate on Monday.
  Mr. Deputy Speaker (Mr. Bryant Godman Irvine): I am under the impression that if the hon. Gentleman reads his Hansard tomorrow he will receive the answer. Mr. Moate.
  Mr. Moate: The subject I wish to raise on the Adjournment concerns the charges imposed on owners of chalets on holiday sites. I shall say a few words about the background which has caused me to raise the matter in this way.
  My constituency of Faversham includes the Isle of Sheppey. For many decades the Isle of Sheppey has been a favourite holiday area for thousands of Londoners who have found it a convenient, attractive and economical seaside resort to which they could escape quickly from the metropolis. This has resulted, as in many other holiday areas, in the growth of a large number of caravan sites and chalet sites. These sites have provided homes for many people who could not otherwise afford regular holidays, including many in the low-income group and many pensioners.
  2010
  Although difficulties have now arisen to which I shall briefly refer regarding some sites, it is only fair to say that very happy conditions have prevailed on the majority of sites. It is only fair to pay tribute to most site operators, who have provided excellent facilities and reasonable security to the tenants and owners of chalets, creating a happy atmosphere for the tenants on their sites.
  As I say, some difficulties have now arisen. I want to feel that the Government are sufficiently aware of the problems—they are real problems—to ensure that others do not suffer as some have suffered who have come to the Isle of Sheppey, and to ensure that reasonable protection—I emphasise the word "reasonable"—is available to those who sometimes part with very large sums to purchase a fixed chalet on a holiday site.
  We are familiar with the Acts which have provided considerable security of tenure for people's rented homes. These holiday homes clearly do not come within their scope. We are also familiar with the Mobile Homes Act 1975, which provided security for permanent residential accommodation. Neither are we talking about that on this occasion. We are concerned now with holiday homes, and I do not think anyone would suggest that such dwellings, particularly those constructed of materials which are clearly not permanent, should merit the same sort of security as other forms of homes. It is clear to me, however, that those who have purchased chalets in the past are unprotected to an unreasonable degree.
  The situation which brought all this to a head occurred at a camp called the Southbank Holiday Camp. Until 1974 the situation was quite happy. But the site was then sold to a company which immediately tried substantially to increase the charges. I referred the matter at the time to the Department of the Environment and the Department of Prices and Consumer Protection. It was clear then that, although the Price Commission was anxious to help, it was difficult for it to take any effective remedial action.
  In 1976 the site changed hands again and was purchased by a company called Sheppey Investments Limited. The situation can best be described by quotations

  2011
  from letters sent by that company to the tenants. One letter said:
  "We are very aware of your lack of security on the site as we are informed that until now you have only been granted annual licences."
  Another letter said:
  "We therefore propose to issue a 15 year lease, at a premium. This lease will support a value of £1,200.… Many chalets have recently changed hands, well in excess of this figure with no security. Under the present licence arrangement the landlord may terminate all licence agreements immediately, and require vacant possession of the site."
  The letter goes on to offer a 15-year lease at a cost of £450 plus a survey fee of £50 plus an increased ground rent of £95 a year.
  It was understood that if the tenant failed to accept he would have to quit the site and receive a payment of £150. It is interesting, but incidental to the argument, that the purchaser of the site would thus have achieved about £100,000 plus an increased income from the higher ground rents he was establishing, which was a clever operation. I am not suggesting that what he was doing was not absolutely within the law or that he was acting improperly. The point to grasp is that some of these tenants had already, perhaps only a year before, paid out substantial sums to buy a chalet on the understanding that their continuing obligation was simply to pay whatever charges were agreed annually with the site operator.
  The people there had paid a substantial sum and were suddenly presented with a demand for another £500, and risked losing their property or being told that they could take their chalet away because the chalet was theirs. That, however, was clearly an impractical proposition. These people paid out sums of money and bought a chalet with no long-term security. It is reasonable to argue that people should be more careful with their money and take proper advice and not enter into such agreements, but a fairly easy-going approach has been rather traditional to the holiday business and many people who should have acted more prudently thought that they were on sufficiently safe ground in paying out substantial sums.
  While people must accept responsibility for their actions, there is a strong
  2012
  case for consumer protection in many areas. Even if one buys a motor car on hire purchase, the Government dictate the form that the agreement should take. There is a case here for stressing that there should be model agreements so that if people pay out hundreds or even thousands of pounds the agreement they receive in return will follow a proper form which has been legally approved and offers reasonable protection.
  Widespread publicity followed the receipt by the 200 chalet owners of the letters. This was right, because some people were put into an unreasonable position. Many people who had no resources were caused a great deal of anxiety and suffering. In the majority of cases they have accepted the terms, and with 15-year leases there is greater security, but security could have been obtained without the suffering which was caused to many people and without the damage which was caused to the image of the holiday trade.
  On a number of occasions I have taken this matter up with the Government. The replies have been helpful and forthcoming. I should like to believe that the Government will take some action short of legislation, because I believe that we can achieve what we want without legislation, to ensure that there is greater security for these people who are paying out substantial sums. Such action can be taken by the Department of the Environment co-operating with the Director General of Fair Trading. It is not only the absence of security which worries these people. It is also the immense area of doubt about the ability of the site operator to impose annual charges without much control. I hasten to add that the vast majority of site operators operate quite happily in full agreement with their tenants, but the terms of the letter in this case with regard to annual charges are that the annual licence fee for ground rent, or whatever it is called, can be set by the site owner's own surveyor and that his decision shall be final and binding.
  If the site owner is able to say "This will be the annual charge next year. This will be the licence fee. This will be the ground rent. This will be the service charge. This will be the fee for membership of the club, and we insist on club membership as a condition of your tenancy", an unreasonable landlord

  2013
  could impose such pressure upon a tenant that the tenant's position would become untenable and he might have to quit the property, for which he had paid a substantial capital sum.
  The Government should press site operators to have a model agreement. I should like to think that this can be done by co-operation between the Under-Secretary's Department and the Department of Prices and Consumer Protection. If the Government were to take on board the need to get a model agreement, and if tenants and site operators generally determined not to proceed unless a model agreement applied in respect of their site, it would be a major step forward.
  We also need to ensure that there is fairness in the assessment of annual charges. Everybody is subject to inflation—site operators no less than anyone else. Reasonable charges must be imposed. I suspect that at present a site operator can impose charges that give a chalet owner very little option.
  It is not sufficient to say that reference can be made to the Price Code and the Price Commission, because that is not necessarily a permanent institution. Even the Government's intentions with regard to the Price Code are a little uncertain. The Price Code might not be in existence in a year's time. There needs to be longer-term certainty about the arrangements. A model agreement, to which I hope the Minister will give encouragement, would contain provision for an arbitration procedure—some system of reference to an outside independent body such as that which I believe is provided for in the Mobile Homes Act.
  I hope that it will be agreed that I have described a situation that requires action. People have suffered unnecessarily, I am confident that if the Government will listen to this case sympathetically and undertake thoroughly to investigate the whole area to see whether action should be taken, a tidying up operation might result without the necessity for legislation, and that would be good for the holiday industry and for site operators. It would maintain the good image that, generally. these people have helped to create and it would help to ensure that hundreds of thousands of Londoners and people from other towns could continue to take full advantage of the fairly cheap
  2014
  holidays that have been made available through the existence of chalet areas in the coastal towns adjacent to our major cities.
  I hope that the Minister will look at this matter sympathetically and consider the possibility of appropriate action.
  4.15 p.m.
  The Under-Secretary of State for the Environment (Mr. Ernest Armstrong): I am grateful to the hon. Member for Faversham (Mr. Moate) for drawing attention to the problems that have been arising in connection with the holiday chalet sites in his constituency. I assure him that I shall read very carefully what he said, and if there is anything constructive that we can do we shall certainly do it.
  These problems represent a new variation on a familiar theme—that of what I might perhaps call mixed tenures, which are mainly found on mobile home and caravan sites, but, as we now discover, can be found on chalet sites as well. The essence is that the occupants own caravans or chalets, but rent the plots or pitches from the site owners. The rents they pay may include service charges, insurance premiums, or ground rents—or a combination of all three—and I understand that there is sometimes some doubt as to the exact status in law of some of these payments.
  The occupants on some of these chalet sites appear to have been finding that these rents are rack rents, with all the overtones that that word carries. The occupants cannot move elsewhere, because the demand for plots or pitches is greater than the supply and they either have to accept the site owners' terms or forfeit their investment.
  It might be helpful if I said a little about the present legal position. It may seem surprising that a Minister from the Department of the Environment should be replying to this debate. The hon. Member for Faversham has previously been in touch with my hon. Friend the Under-Secretary of State for Prices and Consumer Protection, since the whole subject of holidays and tourism falls to Ministers who reside in Victoria Street rather than in Marsham Street.
  The position is that the Fair Trading Act 1973, which set up the office of the Director General of Fair Trading,

  2015
  applies at present only to prices and charges made for goods and services. It does not apply to rents or premiums paid under tenancies or leases of land, unless they include identifiable elements for services. The same goes for the Price Code, which was laid down under the Counter-Inflation Act 1973 as extended by the Remuneration, Charges and Grants Act 1975. The code applies to prices and charges made for goods and services, but only to rents where a service charge is included, and then only to the service charge.
  The great majority of rents are, of course, rents for houses, business rents, or agricultural rents. The problem of a rent that is neither a rent for a dwelling, nor a business rent, nor a farm rent is a relatively new one. I need not remind the House that elaborate legislative codes, including provisions for security of tenure and for rent fixing, had to be developed many years ago for residential, business, and agricultural tenancies. The question now is whether we are going to have to develop yet more codes to deal with buildings let for holidays, or find some other way of dealing with them.
  I understand that the hon. Member for Faversham is not proposing that occupants of chalets should be given full protection on the lines of that which the Rent Acts give to tenants of dwelling-houses. They do not have this protection, because the Rent Acts specifically exclude holiday lettings. I believe that there are planning restrictions that preclude the chalets in the Isle of Sheppey from being used except for holiday purposes. In any case, there is no letting of a dwelling, as the building is owned by the occupant. The hon. Gentleman is suggesting, instead, that the machinery that has been developed in the world of consumer protection to regulate trading standards and practices should be adapted in some way to cover the terms on which plots for holiday chalets are let.
  I must say that there seems much to be said for that suggestion. Leaving aside the technicalities of the law, many people would regard occupation of a holday chalet as being more of a consumer transaction, even though a large capital sum is involved, than something like a tenancy of a permanent home. An apposite analogy—the hon. Gentleman mentioned the
  2016
  car owner—would be with the car owner who has invested a lot of capital in a good-quality car which he might expect to use for many years. If the manufacturers' agents refused to carry out servicing or to supply spare parts except on very onerous terms, he would be faced with the same dilemma as that which faces the occupants of the chalets to which the hon. Member referred. Everyone would, I think, agree that it would be a proper object of consumer protection legislation to try to bring the agents and the manufacturers to behave more reasonably.
  The difficulty, as I have already explained, is that, under the law as it stands, consumer protection legislation does not extend to rents, leases, or tenancies of land, and these are outside the scope of the Fair Trading Act 1973 or of the Price Code, and it would require legislation to bring them in.
  I am afraid that I can offer no promises about future legislation. Nevertheless, I can assure the hon. Gentleman and his constituents that Ministers in both the Department of the Environment and the Department of Prices and Consumer Protection will take note of what he has said today, and of the papers that he has sent to us, and that the Government will be watching what goes on and will be ready to consider the case for action if necessary.
  The evidence about the practices of site operators that we have been collecting for the purposes of the mobile homes review, which includes monitoring of the working of the Mobile Homes Act, will no doubt help with the wider problem of other types of mixed tenures. The office of the Director General of Fair Trading is participating in the review, and he has also been looking at similar problems that have arisen with holiday caravan sites.
  I cannot pretend that we yet have any final answers for mobile homes, holiday caravans or chalets, but I can give an assurance that if we do not find a solution it will not be for want of careful consideration of the facts and the issues involved.
  I repeat that I am grateful to the hon. Member for Faversham for giving me this opportunity to outline our thinking about this distressing problem, and I hope that what I have said will be of some reassurance to his constituents. I say again that

  2017
  we shall read carefully the report of the debate this afternoon and see whether there is anything constructive that we can do to help.
  Question put and agreed to.
  Adjourned accordingly at twenty-one minutes past Four o'clock.

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