HC Deb 03 November 1976 vol 918 cc1570-84

Question proposed, That the Clause stand part of the Bill.

11.38 p.m.

Mr. Malcolm Rifkind (Edinburgh, Pentlands)

I wish to oppose Clause 7. I am conscious that this is a consolidation measure and I do not intend to address the House on any of the merits of the clause, both because it would be incompetent to do so and because it is not relevant to my argument.

As the Committee will be aware from the debate on Second Reading last week, the clause relates to offences between males in Scotland. In particular, it continues the provision of the Criminal Law (Amendment) Act 1885 whereby homosexual acts between consenting adults in private will continue to be a criminal offence in Scotland.

As the Committee is aware, that behaviour is no longer a criminal offence south of the border, but no legislation has been introduced to a similar effect north of the border. Despite that, it has been the practice of successive Lord Advocates—and it was confirmed by the present Lord Advocate that it is the policy of the Crown—not to prosecute acts of homosexual activity between consenting adults in private. I do not wish in any way to question the merits of the matter. The basis of my opposition to the clause is that it is totally wrong as a matter of basic constitutional principle that Parliament should be asked to approve in a consolidation measure of an activity's continuing to be a criminal offence while at the same time the Lord Advocate informs the House that the Crown has not the slightest intention of treating such activity as a criminal offence despite Parliament so determining.

This is an unprecedented matter because, although the Crown always has discretion in particular cases to decide whether to prosecute an accused person, I cannot think of any parallel where the Crown has stated in advance that a whole category of behaviour, despite its being a criminal offence, will not in practice be subject to prosecution by the Crown.

No doubt the Lord Advocate will repeat what he said on Second Reading—that this consolidation Bill does not change the law and the situation will legally remain exactly as it has been up to now. Of course that is correct, and constitutional lawyers and Members of Parliament will appreciate the strength of that argument. However, as a Parliament we must be conscious not simply of the technical consequences of what we are doing but of the effect that it will reasonably have on public attitudes towards the matter.

Clearly the public as a whole will simply say that in 1976 Parliament gave its affirmation once again to this behaviour continuing to be a criminal offence. It would be reasonable to ask Parliament to do that if the Crown, the Government and the Lord Advocate confirmed that it should be treated as a criminal offence and be subject to prosecution. However, it is wrong and contrary to the public interest that Parliament in 1976 should be asked to approve the inclusion of behaviour which the Crown has no intention of using as the basis for a prosecution.

Of course this is a consolidation measure, but it is important to stress that the Lord Advocate has himself conceded that there are many sexual offences that are not included in this consolidation Bill. Perhaps I may remind the House of them. According to a parliamentary reply given to me, the main statutory provisions not included in this consolidation Bill are certain provisions of the Burgh Police (Scotland) Act 1892, the Vagrancy Act 1824, the Incest Act 1567 and various local Acts. Thus, if the clause were to be removed it would in no way lead to this being an exception. It cannot be argued that all sexual offences are being consolidated in the Bill. Only some offences are being consolidated. We are arguing that this particular measure should be excluded.

The other point that I would stress is that I believe strongly, as do those hon. Members who have made their views known on this matter, that it is one thing for the Crown to overlook the provisions of an 1885 Act, much of which is no longer relevant to modern circumstances, but it is a quite different matter and quite unwise—I would even go so far as to suggest that it is improper—that the Crown should disregard the contents of a 1976 Bill when it has asked Parliament to approve that Bill in 1976 and Parliament has given that approval.

Parliament should not be asked to make a fool of itself or to stand on its head. If the Government wish the matter to continue as a criminal offence, let them be quite clear about that and treat it as such. If, however, the Government do not want to treat it as a criminal offence, if there is no possibility of bringing forward amending legislation at this stage, the least they can do is to leave matters as they are. They have worked reasonably well over the last few years under old Acts of Parliament. The Government should leave the matter in that way rather than cause unnecessary worry and concern to a large section of the population and make the job of the police much more confusing.

While undoubtedly the police will be guided by the Crown, nevertheless, if the ordinary police constable knows that this behaviour has taken place and that in 1976 Parliament repeated this within its legislation, he is put in a difficult and unfair position in deciding whether he should take the matter further and seek to establish evidence that he could put before the courts.

For all those reasons, the inclusion of the clause is unnecessary, unwise and unfair. Certainly it brings Parliament into disrepute, and it should not be allowed to stand part of the Bill.

Mr. Robin F. Cook (Edinburgh, Central)

I intend to be brief. We had a very good Second Reading debate, which turned very largely on Clause 7. It is worth recalling that the great mass of opinion expressed in that debate was hostile to the inclusion of the clause. All six speakers who followed the Lord Advocate were hostile to its inclusion, with the exception of the hon. Member for Edinburgh, South (Mr. Hutchison), to whom I shall return later.

11.45 p.m.

I agree entirely with the comments made by the hon. Member for Edinburgh, Pentlands (Mr. Rifkind). We are not debating a reform of the homosexual law. It is overdue for overhaul, because for decades we have not been implementing the law as it stands. I am under no illusion that what we decide tonight will affect the law either way. The law will remain as stated in the 1885 Act until either this or a future Government have the courage to bring it into line with their practice or a private Member takes the opportunity of the Ballot to carry through a reform of the law. Even though the law will not be changed by what we decide on Clause 7, it is important that we do not consolidate it in a measure which we are passing through the House in 1976.

There are three reasons why Clause 7 should not be included in this consolidation measure. The first, which I shall not elaborate as we have already dealt with it adequately, is that we are apparently not prepared to prosecute under part of the clause. If we are not prepared to prosecute under part of the clause, we should not put it before Parliament in a Bill which when enacted will bear the date 1976.

Secondly, we have to recognise that social attitudes have changed since 1885. It is a matter of judgment and speculation how much they have changed. There are some people whose attitudes have not changed since St. Paul wrote to the Romans, but there has been some change. No hon. Member could honestly say with conviction that in consolidating Clause 7 we are expressing the wish of the people of Scotland in 1976. That being so, we should at least fully debate the issue before restating the law. We should not in the process of consolidation, restate a law which does not reflect present-day social attitudes.

Thirdly, we should recognise that since 1885 the law in the rest of the United Kingdom has been changed. In the previous debate I said that the law in Scotland need not necessarily agree with the law in England and Wales and that Scotland should not necessarily be afraid to differ from England on a point of law. But I firmly believe that it would be intolerable, as long as we are one country—the United Kingdom—that a private act concerning individuals should be liable to criminal proceedings in only one part of the country and be perfectly legitimate in another part.

That was why I was surprised at the line taken by the hon. Member for Edinburgh, South in the Second Reading debate. There is no stauncher Unionist than he, yet the position he took strikes at the very concept of the United Kingdom which we represent in the House. For all those reasons, we should not consolidate Clause 7.

The arguments have not been answered. In the Second Reading debate my right hon. and learned Friend the Lord Advocate rested his case entirely on technical, legal arguments. He said that, whether or not the clause was included, the law would stand as it is at present. But, mercifully, we are not all lawyers. When we meet in the House we must consider matters not as lawyers but as politicians. As politicians we must have regard not simply to the technical effect of the law but also to the wider social impact which our decisions will have on the country outside. In considering that wider social impact, we have to remember that we are not legislating for a nation of 5½ million lawyers. Very few people outside the Chamber comprehend what is meant by consolidation. They do not comprehend that a statute we pass in 1976 has no technical effect either on the nature of the law or on Crown policy.

There is no doubt that the clause has caused widespread apprehension among people who are liable to be affected by it. That is plain from my mail. This apprehension in part is related to the point made by the hon. Member for Pentlands. Some who are liable to prosecution under Clause 7 are doubtful whether the ordinary policeman on the beat is sufficiently sophisticated to appreciate that we do not expect him to implement the measure we are passing in 1976.

I understand that the Lord Advocate intends to circulate chief constables saying that he wants no change of policy. In other words, although he is restating the law in 1976, he does not want the police to implement this part of it. It is an unfortunate precedent that he should go to the length of circulating chief constables in that way in relation to a measure passed in 1976. It is liable to blunt their enthusiasm for implementing other statutes passed in the course of this Session.

Lastly, we surely must pay some regard to the effect that inclusion of this clause in a consolidation measure might have been on the Assembly when it meets for the first time. There will be some hon. Members in the Chamber now who will no doubt serve in the Assembly, but the bulk of them—

The First Deputy Chairman

Order. The hon. Gentleman has gone on long enough in that vein. Will he get back to what we are considering?

Mr. Cook

There are moments when I think I am at the Golden Lion Hotel, Stirling.

I shall sum up briefly. My concern is that the impression will be given in the Assembly that this Parliament, meeting in 1976, affirmed the view that homosexual acts in private between consenting adults should still be liable to criminal prosecution. I do not believe that that is the view of the people of Scotland, and I do not believe that it is wise for Parliament to state that view. Therefore, I hope that Parliament will reject Clause 7.

The Lord Advocate (Mr. Ronald King Murray)

I hope that the Committee will resist the proposal that Clause 7 should not stand part.

To leave out Clause 7, even with the amendment to Schedule 2 which has been tabled, would go completely against the spirit of this consolidation. As stated in the twelfth edition of "Maxwell on Statutes" at page 20, a consolidation statute is one which collects the statutory provisions relating to a particular topic and embodies them in a single Act of Parliament. This Bill consolidates the whole of the Criminal Law Amendment Acts. It does not seek to pick and choose parts to be consolidated and parts to be left in the original enactments.

Hon. Members supporting the amendments seem to be under the misapprehension that there are two kinds of provisions in the Criminal Law Amendment Acts, first-class provisions and second-class provisions. Only first-class provisions are for inclusion in the consolidation Bill, and second-class ones—such as Section 11 of the 1885 Act as re-enacted in the present clause, to which the lion. Member for Edinburgh, Pentlands (Mr. Rifkind) objects—are to be relegated and sent back to the 1885 Act.

Mr. Rifkind

The right hon. and learned Gentleman accuses me of suggesting that there are two classes of law. Is that not exactly what he is advocating—that because it is unfair it is a part of the law that can be ignored?

The Lord Advocate

I knew that I should not have given way to the hon. Gentleman. I do not propose to do so again.

It is difficult to see how this approach makes any sense except by reference to the merits of the provisions, which would take us outside the bounds of order. But it is in any event completely misconceived. From the point of view of legal authority, there is absolutely no difference whether a provision is left in its original enactment or consolidated. The exercise of dropping the clause is a pointless and peevish demonstration of disapproval, particularly when one recalls that the original complaint was that the present Bill was too narrow in its scope in that it did not cover all sexual offences. If Clause 7 is dropped, its scope will be still narrower.

In the same vein, I would emphatically refute any suggestion that an old enactment is somehow less potent than a recent one and so less qualified for consolidation, or that the inclusion of an old provision in a current consolidation revitalises it or gives it new force. As Lord Hanworth, Master of the Rolls, said in the case of Gilbert v. Gilbert, reported in 1928 Probate, the purpose of a consolidation Act is to reproduce the law as it stood before". In no sense is it upgraded or given force which it did not previously possess.

Another fallacy which must be refuted is the idea that because a small part of Clause 7 is not to give rise to prosecution, and is in that sense not fully enforced, the clause is not in force. That obviously is a non sequitur. The Lord Advocate's discretion not to prosecute does not change the law. All of what is struck at by Clause 7 remains unlawful until a substantive change in the law is made—and this cannot be done by consolidation.

It is wrong and mischievous to suggest, as the hon. Member for Pentlands did, that the provisions of the clause are a dead letter. The clause is alive in every sense to protect young males of under 21, to protect those who do not fully and freely consent to a homosexual act and to strike at such acts in conditions other than total privacy. It is an important measure of social protection for young males comparable to similar provisions elsewhere in the Criminal Law Amendment Acts for the protection of young females.

To show that the clause is very far from a dead letter, I need only cite the figures for prosecutions and convictions for offences under Section 11 of the 1885 Act in 1974 and 1975. There were 49 prosecutions and 39 convictions in 1974, and 76 prosecutions and 73 convictions in 1975.

It is also wrong to suggest that the only provisions relating to homosexuality are those of Clause 7. There are provisions in Clause 12(1) and in Clause 13(1)(b) which cover homosexual as well as heterosexual situations.

In conclusion, I caution hon. Members against allowing a desire for possible reform of the law as to homosexual acts between consenting adults in private in Scotland to lead them into doing permanent damage to the process of consolidation. That danger is real.

Mr. David Steel (Roxburgh, Selkirk and Peebles)

The Lord Advocate has given a lucid and coherent technical explanation of his stand. I do not argue with him on it, but I think—because I know him well enough that he can wear another hat as a reforming politician—that he cannot expect us to accept "Maxwell on Statutes", Lord Hanworth and the rest that he quoted against the powerful arguments of the hon. Members for Edinburgh, Pentlands (Mr. Rifkind) and Edinburgh, Central (Mr. Cook).

The House of Commons has rules against tedious repetition. I know that they apply to repetition in one speech, but perhaps in this case they should apply to the speeches of all lion. Members, and I do not wish to enlarge on the arguments already advanced. However, I repeat that it is undesirable that the law should be left in a state where executive action decides whether it should be implemented. I accept that the Lord Advocate is prepared to give instructions that the procedure followed for a number of years shall continue to be followed. But the House has no guarantee that the right hon. and learned Gentleman will remain Lord Advocate for ever. What would happen if the hon. Member for Edinburgh, South (Mr. Hutchison) were Lord Advocate? I do not suppose that the same policy would be pursued.

Therefore, we are right to say that many of us do not accept that the provisions of the 1885 Act should remain on the statute book. If we accept that proposition, we should certainly resist the Lord Advocate's argument in the name of the purity of consolidation, which was the sole argument he advanced against the updating of the law.

I took the Lord Advocate's argument that parts of the clause still need to be retained in the interests of the protection of people, but he met the argument earlier when he said that the 1885 provisions remained in force. I would far rather see the position left as it is, with certain parts of the 1885 Act having fallen into desuetude. The last thing Parliament should do is to agree that they should be technically updated to form part of the law which Parliament has apparently seriously considered in 1976.

I hope that those of us who feel strongly on the issue will carry it to a Division.

Mr. Norman Buchan (Renfrewshire, West)

I was surprised at the tone and content of parts of the speech of my right hon. and learned Friend the Lord Advocate. On the one side, some of us are arguing the social case for the provisions not being re-enacted. On the other side, my right hon. and learned Friend has argued the legalistic, technical case about the importance of a consolidation measure not being tampered with. His tone tonight was rather different, making the point that the clause remains live and active. He underlined this by referring to certain aspects of the clause such as the question of procurement of persons under a certain age. No one denies that socially or legally the clause remains active. However, it also relates to consenting adults in private.

We clearly cannot amend the clause in this way. Therefore the best way to meet the legal argument about this part of the law remaining in force is to leave this provision in the 1885 Act but not to give it further endorsement by passing it tonight. I also reject the argument of relating it to other provisions in the clause.

12 midnight

The Lord Advocate dealt with what he regarded as a number of fallacies. He said that he had been criticised because the Bill was too narrow. That is incorrect. What I said on Second Reading was that the consolidation measure did not include all aspects of sexual offences and for that reason there was no objection to leaving this one out also. That is very different from saying that we criticised the Bill simpliciter as being too narrow. I am sure that the Lord Advocate would accept that.

The deletion of the clause would not change the law, but it would give security to people who are worried about the present situation. That itself would not affect the consolidation measure because, that which is left in will still be consolidated.

Since this measure does not include the whole of the sexual offences law, no problem remains. It is not enough to say that all the sexual offences are included. There are a number of others which are not. There is no argument for leaving this aspect out. Certainly no argument has been adduced by the Lord Advocate in respect of the social point, the legal point or the consolidation point. In my view, all his arguments fell. I only wish that he would help the Committee by agreeing with us and withdrawing the clause.

Mr. Michael Clark Hutchison (Edinburgh, South)

The Lord Advocate is right. This is a consolidation measure, and if we want to discuss homosexuality it should be done in a separate Bill or by some other means. I shall certainly support the right hon. and learned Gentleman.

I have been attacked a little. I would remind the hon. Member for Edinburgh, Central (Mr. Cook) that I voted against a change in the law. I am a Unionist, and that is my answer to the hon. Gentleman. However, hon. Members did not take my advice.

The Lord Advocate is right: this is a difficult subject. I do not want to be hard on anyone. I think that the law as it stands in Scotland is being conducted admirably. The hon. Member for Roxburgh, Selkirk and Peebles (Mr. Steel) suggested that if I were Lord Advocate things might be different. Yes, they probably would be, because I might chase some of the rotten apples.

Mr. George Reid (Clackmannan and East Stirlingshire)

We in the Scottish National Party regard Clause 7 as a free-vote issue, as do the other parties. Before the passing of the Bill of the hon. Member for Pontypool (Mr. Abse), there were fewer prosecutions for homosexuality in Scotland than there were in England and Wales—

The First Deputy Chairman

Order. We are not debating that at the moment.

Mr. Reid

I was merely dealing with the hypocrisy of the matter, Sir Myer.

The inclusion in the Bill of this Victorian piece of legislation is, in essence, hypocritical. The Lord Advocate would argue against that and say that no new legislation is involved. He is right, but I doubt whether that will be understood by the public at large or by policemen on the beat. I had a letter as recently as Monday this week from a minister of the cloth urging me to extirpate homosexuality in language which would be more appropriate to the denizens of Sodom and Gomorrah. Therefore, there is a gap in understanding. Some members of the Scottish minority groups who have been left in peace in recent years fear that they are being stigmatised as common criminals in a piece of 1976 legislation.

What is more important is that the clause brings Parliament into disrepute. The House is being asked to put on to the statute book something which a Minister of the Crown assures us will never be acted upon in the Scottish courts. That is what the Minister tells us, although he cannot bind his successors It is one thing to cast a blind eye at legislation which was passed when sexual mores were Victorian and markedly more illiberal than they are today, but it is quite another thing to ask hon. Members in the last quarter of the twentieth century to re-enact a measure which is not enforceable. That is "Alice in Wonderland" stuff. What sort of law is it that is unenforceable? Measures of this type can only bring Parliament into disrepute with the general public.

The Lord Advocate says that he is neutral and is simply following the recommendations of the Scottish Law Commission. I respect that, but the Bill itself is not neutral. It does not consolidate all the law on Scots sexual offences. Someone in the Scottish Law Commission had to go through enactments with a fine-tooth comb, making value judgments about what should be put in and what should be left out. The Bill does not cover the Burgh Police Acts, the Vagrancy Act or the Incest Act of 1567. If they can be excluded, presumably there would be nothing wrong with leaving this clause out. Its inclusion, while it will not change the law, is bound to reinforce and buttress it and give it new prominence in the public mind in Scotland.

I am not even sure that the 1885 Act sits comfortably within the frame of this measure. The offences listed relate in large part to minors. The provisions about the white slave traffic, impersonation of a husband and the behaviour of masters and mistresses are clearly minimal in their competency compared with, the number of homosexuals in Scotland. All the clauses apart from Clause 7 deal with heterosexual offences. They should be consolidated separately from homosexual offences.

I do not know where the pressure for this measure comes from. Lawyers to, whom I have spoken admit that it would be handy in a legal sense, but they are not desperate to see it on the statute book. Many of them have made the good point to me this week that, if the Government can find time for this Bill, the time would have been better spent on reforming the Scots law on homosexual offences, recognising the hypocrisy of the situation and rescinding the 1885 Act. For those reasons, I hope that the Lord Advocate will think again.

Mr. Teddy Taylor (Glasgow, Cathcart)

I am surprised at what the hon. Member for Clackmannan and East Stirlingshire (Mr. Reid) says about parliamentary time. Consolidation measures usually stir something up. That is what has happened tonight.

If Clause 7 had not been in the Bill, I should not have been unduly worried, because, as the Lord Advocate said, it would not have made any difference in the law. But it is in the Bill. Although no change in the law is intended, if the House had decided to insert a provision like Clause 7 where none existed previously that would have been interpreted outside as a significant action. Conversely, if Clause 7 is removed that, too, will be seen as significant.

It is not good enough to say that this does not matter. The hon. Member for Edinburgh, Central (Mr. Cook) said that the inclusion of the clause had caused apprehension. The hon. Member for Renfrewshire, West (Mr. Buchan) said that its removal would give security to those who are worried. It will do nothing of the sort. We are told that whether Clause 7 is in the Bill or not makes no difference to the law. Therefore, hon. Members are really asking us to give the impression that a change is being made in the law.

Mrs. Margaret Bain (Dunbartonshire, East)

Does not the hon. Member agree that the reiteration of this legislation is causing concern because it seems unlikely that a Bill will be brought forward to reform the laws relating to homosexuals in Scotland?

Mr. Taylor

No consolidation measure causes concern to anyone unless it is used, as this one is, to achieve something which has not been achieved through a Private Member's Bill. If people want to change the law on homosexuality, they should present a Private Member's Bill or a Government Bill. They should not achieve their object by playing around with a consolidation Bill. I am sure that if there were a proper Bill I should be

Question accordingly agreed to.

Clause 7 ordered to stand part of the Bill.

Clauses 8 to 22 ordered to stand part of the Bill.

Schedules 1 and 2 agreed to.

Bill reported, without amendment.

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, without amendment.

on the same side as my hon. Friend the Member for Edinburgh, South (Mr. Hutchison), but we are not discussing that tonight.

If we took out Clause 7, our action would be interpreted as though Parliament had made a fundamental decision on a moral issue. A consolidation measure is not the occasion for making that decision. It should be made later, at the proper stage. I support the Lord Advocate.

Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 37, Noes 27.

Division No. 373.] AYES [12.10 a.m.
Ashton, Joe Graham, Ted Smith, John (N Lanarkshire)
Bates, Alf Harper, Joseph Stewart, Rt Hon M. (Fulham)
Brotherton, Michael Hunter, Adam Stradling Thomas, J.
Brown, Hugh D. (Provan) Hutchison, Michael Clark Taylor, Teddy (Cathcart)
Campbell, Ian Irving, Rt Hon S. (Dartford) Thompson, George
Cocks, Rt Hon Michael Leadbitter, Ted Urwin, T. W.
Cohen, Stanley Le Marchant, Spencer Wilson, Gordon (Dundee E)
Coleman, Donald McCartney, Hugh Woodall, Alec
Corrie, John McElhone, Frank Woof, Robert
Deakins, Eric McMillan, Tom (Glasgow C)
Doig, Peter Millan, Rt Hon Bruce TELLERS FOR THE AYES:
Dormand, J. D. Murray, Rt Hon Ronald King Mr. James Hamilton and
Douglas-Hamilton, Lord James Ross, Rt Hon W. (Kilmarnock) Mr. Thomas Cox.
Ellis, John (Brigg & Scun) Small, William
Bidwell, Sydney Lambie, David Rifkind, Malcolm
Buchan, Norman Lamond, James Ross, Stephen (Isle of Wight)
Canavan, Dennis Lester, Jim (Beeston) Skinner, Dennis
Carmichael, Neil McNamara, Kevin Steel, David (Roxburgh)
Cook, Robin F. (Edin C) Marshall, Jim (Leicester S) Taylor, Mrs Ann (Bolton W)
English, Michael Morrison, Charles (Devizes) Wise, Mrs Audrey
Evans, John (Newton) Ogden, Eric
Forrester, John Penhaligon, David TELLERS FOR THE NOES:
Fowler, Gerald (The Wrekin) Prescott, John Mr. A. J. Beith and
Hicks, Robert Reid, George Mrs. Margaret Bain.
Knox, David
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