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Lords Amendment To Commons Amendment No 101

Volume 413: debated on Tuesday 21 October 1980

The text on this page has been created from Hansard archive content, it may contain typographical errors.

101A After subsection (1) insert—

("( ) An Act which would otherwise he treated for the purposes of this Act as being done in private shall not be so treated if done—
  • (a) when more than two persons take part or are present; or
  • (b) in a lavatory to which the public have, or are permitted to have, access whether on payment or otherwise.").
  • My Lords, Commons Amendment No. 101 introduced a new clause to the Bill, having the effect that a homosexual act committed in private shall not be an offence in Scotland provided both parties consent and are over 21. I am not disputing the principle of this new clause at all. My amendment is to introduce a clarifying provision to help clear up what is meant by "in private". Your Lordships will see that subsection (1) provides that a homosexual act in private shall not be an offence, but subsection 6(a) provides that it shall continue to be an offence if committed in public. The purpose of my amendment is to make clear just what is meant by "in private" in two respects,.

    The amendment which I propose is in fact derived entirely from the corresponding section in the English Act, which is the Sexual Offences Act 1967, which is in terms very similar to this clause and which contains a provision such as I am proposing. The amendment proposed, to insert the words printed, is to show that when more than two persons are present it shall not be treated as being in private, or when committed in a lavatory to which the public have access it shall not be in private. I think there is quite a real difficulty as to what is "in private". One could imagine acts taking place in a private house. They could not be said to be in public, but if there were a number of people present it is obviously desirable that they should not be treated as being in private. The purpose of my amendment is to clear up that doubt.

    At the same time, perhaps I should say that the next Amendment, No. 101B, is simply to alter subsection (6)(a), which provides that it shall be an offence to commit the act "in public". If the first amendment is carried, I think it would be better to have, in subsection (6)(a), that it shall be an offence if not committed in private, because they might not mean quite the same thing. I beg to move.

    Moved, That Amendment No. 101A as an amendment to the Commons Amendment No. 101 be agreed to. —( Lord Fraser of Tullybelton.)

    My Lords, I feel grateful to my noble and learned friend Lord Fraser for introducing these amendments. This clause was inserted in the other place on the last day this Bill was there in circumstances which prevented a Committee stage being held at all. The result is that this clause has never been examined closely in Committee; and I believe that in the minds of many Members of the other place it was passed in the belief that it was virtually the same as the provision in the English Act, in 1967. This was not true, and if anyone takes in Gay News they will find it is described as "a licence for orgy". I do not think for a moment that those who supported this clause in the other place had that in mind for one minute. I do not think they did. They misunderstood this clause as being something which was closely in line with the provision in the English Act. This is not the case.

    I think we could refuse to put this amendment in, and I think there are reasons why we really could reasonably do so. Indeed, I do not think this House should allow itself to become a sort of dirty clothes basket, in which any clothes are put into it, they are washed, cleaned and ironed, and are handed back in a neat pile. But there are two considerations which I have in mind in supporting my noble and learned friend in his amendment. First, I do not think that many Members here or in the other place want this controversy to go on. They want it finished as soon as they possibly can. That is to say, the general rules for this form of activity should be as near as may be in the two countries. I think that that is what is required.

    Secondly, I think that we want to avoid leap-frogging; that is to say, one country does one thing and then there is a demand for the other country to do the same. In this case, the English are demanding that the Scots should bring their law into line. If we went too far, then the Scots would demand that the English law be brought into line. This is undesirable in every way.

    One thing which my noble friend did not mention is the question of sentences. The level of sentencing in this draft is very much less than in the English Act of 1967. That introduces also the element of the possibility of fining. I would not want to change that. I have no desire to see any more people going to prison than is absolutely necessary. I should not be one for changing sentencing policy. On these grounds, I hope that the House will accept both amendments, send the Bill back and get what amounts to an arrangement in both countries which is very substantially the same.

    My Lords, I hope that the House will reject this amendment to the Commons amendment. I do not want to be immodest in any way but, in fact, the Commons amendment is in substance and in detail the Bill which I introduced into this House three years ago and which was passed by a substantial majority. That was admitted by Mr. Cook in the House of Commons and by the Secretary of State for Scotland. It was exhaustively discussed on Second Reading, in Committee, and on Third Reading and your Lordships passed it with a very large majority.

    I should like to say to your Lordships that in drafting that Bill I went to a great deal of trouble. I had the help of the Scottish Office, I had the help of the parliamentary draftsmen, I had the full support of the Law Officers both in Scotland and England and of the Lord Chancellor, then the noble and learned Lord, Lord Elwyn-Jones. We drafted a Bill which we thought carried out the main intentions of the Wolfenden Committee's Report which was to remove from the statute book for ever the fatal words "in private", which have done such damage and caused such misery to so many people for so many years.

    I think this amendment to the amendment is not necessary because there is no need in Scots law for an English definition of privacy. Nor can I agree with the noble Earl, Lord Selkirk, that either orgies or sex in places open to the public are made lawful in this Bill.

    My Lords, I introduced my Bill for two reasons. First of all, I thought that it would be ridiculous to make a distinction on this subject between England and Wales, on the one hand, and Scotland, on the other; but, secondly and far more seriously, because the Lord Advocate of the day felt that he had publicly to announce that he did not intend to enforce a particular clause in a statute. That, I felt, as did many others, was bound sooner or later to bring the law itself into disrepute—and those who listened to the speech on that occasion of the noble and learned Lord, Lord Wilson of Langside, in his day a great Lord Advocate, are not likely to forget it.

    My sole motive in the whole of this business which started many years ago—for it was I who persuaded the late Lord Kilmuir, then Home Secretary, to set up the Wolfenden Committee—was to remove from many of our most gifted citizens the constant fear of blackmail but, much more, of a criminal charge, for doing something which, although people may hold strong views about it and are entitled to do so, cannot be regarded, in my submission, by any stretch of the imagination as a crime against the state. Many of your Lordships may or may not agree with me, but I think that what consenting adults do in private is not a matter for Parliament unless they constitute a danger to the state of some kind.

    The Commons, not for the first time in the last 20 years, have merely accepted the leadership of your Lordships in an important matter greatly to the benefit of the country. I ask your Lordships to accept the Commons amendment as it stands and to send the Bill back unamended to the other place. And in so doing I am only asking your Lordships to endorse the decision which you yourselves took by a very large majority three years ago.

    My Lords, in rising to support the amendment of the noble and learned Lord, Lord Fraser of Tullybelton, and the noble Earl, Lord Selkirk, I think this is a subject where it is of the greatest importance that the law of England and Wales and the law of Scotland should be one and the same. We heard the noble Earl, Lord Selkirk, say that if this new clause is passed without the amendment to the amendment then there is more latitude in Scotland than in England on this subject; and this seems to me to be a highly unsatisfactory state of affairs. I hope that even the noble Lord, Lord Boothby, when he thinks further and realises that what we are trying to do is to bring the law into line in both countries, will not perhaps pursue the line he has been taking to date.

    I have one other thing to say. There is not much one can say on this subject other than what has been said. But if Amendments Nos. 101A and 101B are passed, I intend, as a consequential amendment to the amendment to the Commons amendment, to move a manuscript amendment which is really a drafting amendment. In subsection (6)(b) of the new clause, we have at the moment:
    "without the consent of any party to the act".
    Undoubtedly, those words were used when it was visualised that there may be two or more people taking part. My manuscript amendment would read:
    "without the consent of either party to the act"—
    because what we are talking about at the moment is only two people being allowed as consenting adults. It is only a drafting and minor amendment and perhaps, if the Government are prepared to accept the amendments to the amendment, they would allow this also to pass without any difficulty.

    4.29 p.m.

    It seems to me that the sole justification for dealing with this matter in this way—that is to say, drafting as a clause into this Bill virtually the whole Act of 1967—can be that there is no difference between the two Acts. Otherwise, surely, it would be necessary to have this fully debated in this House whether or not it was debated three or four years ago. It would be most unusual for it not to be so.

    My noble friends Lord Selkirk and Lord Perth have drawn attention to one point in the Bill where it may be that the Bill is going to be more permissive than the Act of 1967. I should have thought that in a case like this, when an English Act has been in force for some time, it would be appropriate to examine in detail the effects of that Act before proceeding to extend it to another part of this country. But if it is shown that there are no such adverse effects, and if the Bill can be brought as closely as possible into line with what is contained in the English statute, then, if that is the will of the House, we should have to be content.

    However, I would ask my noble friend to tell us in his reply exactly what the position is, not only so far as the Bill is concerned by the addition of these amendments, but also what is the state in England at the present time, and whether we are satisfied with the working of the Bill in England at the present time. It is only right that we should know how that has gone in relation to what it was intended to do before we adopt it in Scotland.

    4.32 p.m.

    My Lords, what we have here is the incorporating into Scottish law of what is virtually a complete Act. This Bill started in this House a long time ago. It went through every stage in this House and I think that we can fairly say that we made a good job of it. We went through it very fully: Second Reading, Committee, Report and Third Reading. There were amendments all along the line. But this subject was never raised by any Member in this House, nor was a clause put down.

    The Bill went to another place and had a Second Reading. It had a very lengthy Committee stage, but this subject was never raised. It was only on 22nd July—not all that long ago—that a new clause was put down which purported to incorporate the 1967 Act into Scottish law—a whole Act of Parliament. It was debated for two hours. I do not think that this is the right way to legislate in respect of an important piece of social legislation. Had there been a great public discussion in Scotland about it, I could have understood it. But, quite frankly, there has not and there has been no great demand for it.

    There is something to be said for having the law in Scotland the same as the law in England. I have been a great defender in the past for Scotland dealing with its own affairs in its own Scottish Grand Committee and guiding the House of Commons, but that did not happen on this occasion. The result is that there has been almost an evasion of the close public scrutiny that is given in Committee stages here and in another place.

    I was not a supporter of the 1967 Act. It may well be that the practice is something that is not so rife in Scotland, where our school system is very different and where there is no segregation of the sexes. From the age of five they are taught in the same schools and the same classes. So there is justification for a difference. We ask people why we must have this clause and they say: "We must bring the law into line—Scotland and England". I would be prepared to do that; but when I look at the clause it is not the same as the 1967 Act.

    For that reason, I strongly support the noble and learned Lord, Lord Fraser of Tullybelton, in the amendments put forward. It is no good the noble Lord, Lord Boothby, saying that it should not be a crime. Let him read the clause. He will find it is still a crime in relation to the armed forces and in relation to certain circumstances in the merchant navy. He will also find that this Bill does not apply to Northern Ireland.

    I have not heard any voice—either in this or the other House—suggesting that it should apply to Northern Ireland. There are far too many glib statements being made. I have even heard it said that the Church of Scotland is for it. The Church of Scotland, so far as I know, has never demanded any such change. The first thing we should do, if the argument is that the law of Scotland and of England should be the same, is to accept this amendment. That is the least action we can take.

    Hitherto, this subject has been dealt by a Private Member's Bill and the Government have stood apart. But now it is being incorporated into a public measure, and the Government must accept some responsibility and give us some guidance in respect of it. I know that the Secretary of State for Scotland in another place regretted very much that this had been put forward. I think that he voted against it, as did other Scottish Ministers. I should like to hear the Government at least giving us a suggestion that we are not going to leap ahead in this gay mood with—

    My Lords, before the noble Lord sits down, may I put one question to him? He contends that this matter has not been adequately debated, apart from two hours in the House of Commons. Is he aware that my noble friend Lord Boothby's Sexual Offences (Scotland) Bill was given a Second Reading on 10th May 1977 in this House by a majority of 125 to 27? That was a majority of almost five to one. That Bill was debated very fully and subsequently went through Committee and Report stages. I do not think it can be said that the matter has not been debated before.

    My Lords, it has certainly not been debated in this Parliament. I do not know how many people here today were one of the 150 who were present two years ago. I would not call that very representative.

    4.38 p.m.

    My Lords, perhaps from this side I may follow the noble Lord who has just spoken. I took part in the debate three years ago on Lord Boothby's Bill. I was asked to do it from the Opposition Front Bench and therefore I recollect that Bill going through. I must point out to the noble Lord, Lord Boothby, that it was said at the time that there was no hope of his Bill going through Parliament and passing into law because it was a Private Member's Bill originating in this House, and of course it was not going to be taken on a controversial subject by a private Member in the other place first, which would have had to have happened, and he would have had to be in the first six in the annual ballot for Private Member's Bills.

    The noble Lord, Lord Boothby, enabled us to have a discussion three years ago on this subject. My own feeling was that the vote that ended that discussion was a vote in principle for Scottish law being brought into the same situation as the law in England and Wales. But it was perfectly clear that that Private Member's Bill of the noble Lord, Lord Boothby, was never going to see the statute book at that time. It could not possibly have passed through the House of Commons as no time was going to be given for it.

    Even if time had been given for it, it had no chance of getting through unless, as I say, it had been sponsored there first. That was the case of the Bill of the honourable Member, Mr. Abse. He was successful in the ballot and originated the Bill which became the 1967 Act for England and Wales. There was no question of that happening with the Bill in this House three years ago. It was more a question of time being available for discussion of the subject, rather than discussing the particular legislation that was likely to become law in Scotland. I share the views of the noble Lord, Lord Ross of Marnock, in that respect.

    I would go further and say that this amendment appeared at the final stage in another place after the Bill had been all the way through this House, as the noble Lord, Lord Ross, and others have said. Then it had escaped the Scottish procedure in another place. The subject was not mentioned and therefore it was not brought up in the Scottish Grand Committee, where the Second Reading debate effectively took place. It did not get discussed in the Scottish Standing Committee on the Bill, which is where it would have been discussed in a Scottish context with Scottish Members of Parliament taking part. It finally appeared at the Report stage and then had that two hours' debate, so I do agree that it has not had full examination.

    Until we hear what the Government have to say we cannot be certain—at least I certainly cannot, having had legal training—that what the noble and learned Lord, Lord Fraser of Tullybelton, is hoping for will be achieved by the amendments. I think that if what he is pressing for is achieved, and if this clause is brought into line with what is now the law in England and Wales, that would be an improvement. But I have sympathy with those who feel that this is the wrong way for a very important subject such as this—which has always been dealt with in Private Members' legislation—to be brought into the law of Scotland; namely, by way of a public Bill.

    My Lords, I had not intended to rise at this point, but I must complain about the procedure that we are following at the moment. We are discussing a limited amendment and we are now on to the substantive question. What some of us would like to know is whether this amendment actually is viable and improves the Bill. We look to the Minister to reply on that, and since these arguments have taken place and are in danger of creating prejudice, I am bound to say that some of them should be answered.

    The Bill of the noble Lord, Lord Boothby, went through this House and was discussed in immense detail. It was discussed in Committee, and it has been the practice in your Lordships' House to take any Bill that comes through and make it as complete as possible in the hope that in due course it may be picked up in another place. I really cannot accept the argument that this is something which has just been slipped in at the last moment. When the amendment was moved by the honourable Member for Edinburgh Central, he made it clear that he was doing so on Report stage because it raised important issues and therefore was not appropriate for a Committee Stage discussion. He put the arguments very strongly and I am bound to say that your Lordships, who have shown great initiative in these matters, ought not to allow a situation to continue in which the law exists in one way and is not enforced by the courts in Scotland.

    If this is imperfect there may be a possibility of amending it later, but the other place, which had every opportunity of hearing the arguments of Law Officers and others, chose to accept it. The fact that it did not go through the Scottish procedure was a matter for the other place, and not for us. Therefore I would hope that we shall get a clear indication as to whether the amendment moved by the noble and learned Lord, Lord Fraser, improves the Bill and makes the clause more acceptable. I hope therefore that some of these arguments, which in my opinion have been advanced at the wrong time, will not be advanced when we come to the main amendment.

    My Lords, may I from this Bench endorse what my noble friend has just said. We are dealing with a very limited amendment at the moment. I want to make certain remarks on the main argument, and I was hoping to do that on Amendment No. 101C, on the question of principle.

    May I invite the noble Earl to rise at this stage and, by answering the points, bring to an end the debate on this limited matter? May I also ask him, when doing so, to take account of the fact that his right honourable friend the Secretary of State for Scotland, when asked about the form of this clause, said in another place on 22nd July 1980, at column 309 of the Official Report:
    "I make no criticism of the clause."
    When further asked about that, he said:
    "I did not say and I do not say that it is defective. I do not believe that it is defective."
    He said that it had received the attention of the draftsmen.

    I should like to hear from the noble Earl what he conceives to be the effect of the amendment proposed by the noble and learned Lord, Lord Fraser of Tullybelton. I would remind the House that that amendment does not provide any defintion of the words "in private". It merely prevents those words applying to the situation covered by paragraphs (a) and (b).

    My Lords, in spite of what the noble and learned Lord, Lord McCluskey, has said, perhaps I might be permitted to make one short point. I am sure that all that can sensibly be said in support of these amendments has been said this afternoon, and I should not wish to presume to add to the wisdom which your Lordships have on this matter. However, in view of a passing reference by the noble Lord, Lord Boothby, to something that I said in the past, I felt it prudent to put on record that I would support this amendment. I agree with what has been said by the noble Earls, Lord Selkirk and Lord Perth, and by the noble Lord, Lord Ross.

    My Lords, I would hasten to say that I never suggested that. What I did say was that the noble and learned Lord made an admirable case for changing the law, in the light of the Lord Advocate's pronouncement that he did not intend to enforce it. I never suggested that the noble and learned Lord was in favour of this amendment; at least, if I did so, I certainly withdraw it.

    My Lords, I was not complaining, but I thought that I should just put my view of the matter.

    My Lords, at this juncture I shall confine my remarks—few that they are going to be—to the amendment of the noble and learned Lord, Lord Fraser of Tullybelton, because it is really his amendment that the House is discussing, although we have gone down a number of byways as to the generality of the Commons amendment and as to an amendment which the noble Earl, Lord Perth, thinks would improve the sense of the amendment, but which I am advised would not.

    As has already been said, the Government of the day—and indeed this Government already, in another place—do not express a view on the merits of the issue that is sought to be dealt with in the form of the amendment. Such matters are traditionally left to a free vote and, notwithstanding the somewhat unfortunate manner in which this clause was added to the Bill at a very late stage so as certainly to preclude consultation and certainly to preclude reasoned debate, the Government feel that they must abide by this tradition in this case.

    On the amendment of the noble and learned Lord, Lord Fraser of Tullybelton, I think that there are perhaps two or three things which should be said. If one reads the Official Report of the other place, there is no doubt that what Mr. Cook was seeking to do was to bring the law of Scotland into line with that of England. Certainly, nothing that he said, nor indeed anything that his supporters said, in those proceedings sought to extend the law of Scotland beyond that of England. That is the first point.

    The second matter is that the noble and learned Lord, Lord McCluskey, pointed out a couple of passages in the Official Report in which he claimed that my right honourable friend the Secretary of State did not say in effect that the amendment was defective. In a formal sense, it is not defective; but that is not quite the end of the story, which led to the reason for the noble and learned Lord, Lord Fraser, tabling his amendment. I am not going to say anything at this stage about the generally adverse reaction that there has been in Scotland to the inclusion of this measure, although when the Motion of my noble friend Lord Lauderdale falls to be debated, if it is, then I shall have something to say. However, in the context of the amendment that we are now discussing, it is fair to point out that there was very considerable concern in Scotland at the failure in effect of the amendment to define the words "in private".

    The amendment which has now been moved by the noble and learned Lord highlights the worry felt by many people, who, while they were not totally opposed to the clause, nevertheless felt apprehensive about the omission of the safeguards which, as at least some of your Lordships are aware, are in the corresponding section of the Sexual Offences Act 1967, applying to England; that is, Section 1(2) of that Act. So, in the limited sphere of this debate, it is the Government's view, therefore, that this amendment would do something to allay the concern about this point as it concerns privacy, and, so far as the Government are concerned on this point, we would be content if the noble and learned Lord's amendment were to commend itself to your Lordships' House.

    My Lords, may I reply very briefly? I understand that nearly everybody who has spoken seems to approve of my amendment as being an improvement of the clause, if the clause is approved at all. A good deal of discussion has ranged rather more widely than I had originally expected. The only criticism, as I understood it, of my amendment came from the noble Lord, Lord Boothby, who said that it was not necessary in Scotland. I really cannot understand that argument, because it seems to me that it is easy to imagine circumstances in which it might be doubtful whether a particular act was in private or not.

    The obvious one that occurs to me is a bedroom shared by three or four men, one of them asleep in one corner of the the room and the other two engaging in a homosexual act. It is obviously open to debate whether that would be in private or not, and this amendment would dispose of that argument which seems to me clearly a desirable thing to do. For that very modest kind of reason, and also because it brings the law of Scotland on this point exactly into line with the law of England—which on this point, I think, is desirable—I commend my amendment.

    My Lords, the noble Lord has spoken. The Question is that the said amendment be agreed to.

    On Question, amendment agreed to.