§ 12.50 a.m.
§ The Under-Secretary of State for Northern Ireland (Mr. James A. Dunn)
I beg to move,That the draft Sexual Offences (Northern Ireland) Order 1978, which was laid before this House on 15th February, be approved.The order will extend to Northern Ireland the provisions of the Sexual Offences (Amendment) Act 1976 and, like that Act, embodies many of the recommendations of the advisory group on the law of rape chaired by Mrs. Justice Heilbron which reported in 1975. The purpose of the order is accordingly to clarify and modify the law concerning rape in Northern Ireland: it deals with the definition of both rape and a rape offence, with the sort of evidence which should be admissible in court proceedings and with the provision of anonymity for both complainants and defendants.
Article 3 of the order provides a statutory definition of rape which emphasises that lack of consent—not violence—is the main defining characteristic of rape. The advisory group considered that legislation should contain a declaratory provision which simply defines, and does not modify the law, owing to the existence of common misunderstandings about the offence of rape which it was essential to remove. This recommendation was given effect in Section 1 of the 1976 Act. For instance, the advisory group found that there was a widespread but none the less false assumption that marks or other evidence of violence were necessary before rape could be proved. Furthermore, the order requires a jury not only to consider whether the man believed the woman to be consenting but also whether that belief was reasonable.
Articles 4 and 5 of the order seek to reduce the number of occasions on which 1161 the defence may introduce evidence about a woman's sexual history with men other than the accused. The purpose of this provision is to limit hurtful and distressing probing into a woman's private life unless it is strictly necessary. The sexual history of the complainant with the accused is not, however, restricted in a similar manner since it may well be relevant to the case.
It is, however, important to bear in mind that, while giving added protection to women in rape cases, we must do nothing to prejudice the right of the defendant to a full and fair trial. For this reason, the order allows the judge discretion to permit the introduction of evidence about the woman's sexual history where it would be unfair to the defendant to exclude it.
Article 6 provides that, exceptional circumstances apart, complainants shall be anonymous in written publications and in broadcasts about trials for rape offences. A defendant may apply for the restrictions to be lifted, but permission would be given only if he could prove that otherwise his defence would be prejudiced or that publicity was required in order to induce possible witnesses at the trial to come forward.
Any form of limitation on freedom of reporting legal proceedings is, of course, a difficult and sensitive matter. I am satisfied, however, that the nature of rape offences makes some limitation on publicity both necessary and desirable. A woman who is a victim of rape may well be expected to be daunted by the prospect of publicity even to the extent of failing to report the assault to the police. In these circumstances, and given the private and intimate nature of the evidence likely to be required at the trial, I am convinced that anonymity for the complainant is necessary.
Protection for the defendant is, however, also provided by article 8 of the order which states that, exceptional circumstances apart, the name of the defendant shall not be reported unless and until he has been convicted.
The order provides for a valuable and desirable and, indeed, humane extension of existing criminal law in England and Wales to Northern Ireland, and I commend it to the House for approval.
§ 12.54 a.m.
§ Mr. John Biggs-Davison (Epping Forest)
I wonder whether the Minister can tell us what demand there has been in Northern Ireland for this measure and from which quarter. However, since the purpose of the order is to bring the legislation of Northern Ireland into line with that of England and Wales, we do not oppose it, although when the legislation for England and Wales was passing through the House my hon. Friend the Member for Burton (Mr. Lawrence), speaking for the official Opposition, said that the Opposition's approach to the Bill could be summed up as unenthusiastic.
The argument which underlies this legislation is not so much on one side as at first sight it might appear. On Clause 4 of the Bill, which was to give defendants in rape cases the cloak of anonymity, my hon. Friend the Member for Burton said that… many of us would rather that there was no protection for either party.Speaking for himself and for a number of my right hon. and hon. Friends, he came to the conclusion that… it is doubtful whether, if the public fully understood all the parts of the Bill, it would wholly like all the fetters being placed upon the accused, which may well make the conviction of an innocent man more likely."—[Official Report, 15th October 1976; Vol. 917, c. 888–9.]I wish not to pronounce on that argument but to reiterate that the argument is not all on one side. I wonder what demand there is for this legislation in the Province, although, as a general principle, we are anxious that the law in Northern Ireland should be in line with that of England and Wales.
§ 12.56 a.m.
§ Mr. Robert J. Bradford (Belfast, South)
Because this order is intended to effect parity, we on this Bench welcome it. In preparing for the debate, I looked up some of the speeches made on this subject during the passage of the Sexual Offences (Amendment) Act. One fact which registered very strongly with me was that each day there are probably two cases of rape, or near-rape, which are not brought to the attention of the authorities. This is because the ladies concerned think that a certain stigma might remain attached to them, or even because of a threat to their persons, or because of the difficulty of proving that 1163 they were not at all consenting to a relationship. Whatever causes that kind of difficulty, the fact that so many cases are not brought to the attention of the police necessitates a change in the law.
The Act also did a great service to the community in that it tried to redefine the meaning of the term "rape". I understand that the 1956 Act was not very clear or specific about it. Thus, this order, like the Act, does great service in that it redefines the meaning of "rape" as well as protects the women of our community.
Another helpful aspect is that the private life of a lady prior to the incident will be protected—a very wise provision. It has been argued that there are women whose nature of employment or pursuit almost invites some kind of relationship. Be that as it may, it is the exception and not the rule. If the private lives of individuals can be protected—and would have been protected, apart from this dreadful incident of rape—I think the order does a great service to the community by so protecting that privacy and confidentiality. That is the more evident in regard to anonymity. I am in total agreement with article 6, which deals with anonymity.
Having said that, I am glad that in the original amending Bill certain suggestions were resisted. I am glad that the Government resisted the temptation to include rape within marriage. I can certainly believe that it is possible to have lust within marriage but I cannot see how there can be rape within marriage.
I am also very glad that the Government were disposed to add a new clause protecting the identity or observing the anonymity of the defendant. I know that there are those who disagree and that there are those who are involved in the legal profession in Northern Ireland who would argue that a defendant in a rape case in many instances is no different from a defendant in any other kind of criminal case. Bearing in mind that very few women will bring a case such as this to court unless it is an authentic case, how can a defendant in this sort of case be said to deserve preferential treatment and to have his identity concealed?
I appreciate the strength of the argument which has been advanced by some members of the legal profession in North- 1164 ern Ireland, but, at the same time, the ongoing ramifications and consequences of being involved in a kind of sexual act are such that I would tend to come down on the side of agreement with the anonymity of defendants in a rape case.
I shall not detain the House by going through the order article by article. Article 3 obviously gives us a restatement of the law concerning rape, and that is very valuable. Article 4 removes the possibility of mud slinging in the court where a defendant could possibly try to drag from the background all kinds of irrelevancies. Anything that reduces mud slinging to a minimum must surely be encouraged by us. Article 7 deals with fines for the contravention of the provision in respect of anonymity. This is also important.
On the whole, I welcome the order and would certainly be happy to see it applied to Northern Ireland as it now stands.
§ 1.4 a.m.
§ Mr. J. Enoch Powell (Down, South)
As my hon. Friend the Member for Belfast, South (Mr. Bradford) has reminded the House, the Great Britain Act which the order reproduces for Northern Ireland arose out of a Private Member's Bill. While, therefore, I am entirely in agreement with my hon. Friend and my colleagues in welcoming the uniformity which the order will produce in the law of the United Kingdom in this respect, there is an important consideration involved in what we are doing. I think it would not be right for that consideration not to be mentioned, since it will become or could become a subject of acute controversy in the context of other Northern Ireland legislation which may—although I hope it will not—be presented to the House later in this session. The difficulty is that a Bill for Great Britain is presented to the House by a private Member and is passed as a Private Member's Bill without the Whips being on and without the Government necessarily taking sides in the matter, and certainly without the Government accepting responsibility for that legislation. It thus finds its way on to the statute book but applies only to Great Britain.
We then decide—I think that on this we are agreed—that that measure should apply to the remainder of the United Kingdom, namely, to Northern Ireland.
1165 However, there is no procedure for private Bill legislation for Northern Ireland by order, so to speak. Instead, the Government take responsibility not merely for the proposition that the law should be uniform in all parts of the United Kingdom but for the content of the law itself. Thus what becomes law in Great Britain without Government responsibility as a consequence of private Member initiative is applied—I was about to say "imposed" but I stopped myself—to Northern Ireland on Government responsibility as a Government Act with the Whips on.
It so happens that in this instance there is no problem because we welcome this measure and regard it as uncontroversial, but clearly there would be a grave problem if the procedure by order were used to apply to Northern Ireland law that had been made in Great Britain by a controversial Private Member's Bill, the Whips being off and the Government being neutral, for we would have the situation that in Great Britain the Government had no view about the law but immediately the same law was to be applied in Northern Ireland the Government said "Yes. That is Government policy. We shall push it through with the powers that Governments have for securing their legislation".
I do not wish to be tedious, but we find that the fundamental proposition about legislation is constantly being illuminated from different angles as we consider these successive orders. There is in this Session a Private Member's Bill that was introduced by the hon. Member for Bexley-heath (Mr. Townsend). My hon. Friend the Member for Belfast, South (Mr. Bradford) participated on Second Reading and supported the Bill's Second Reading with considerable enthusiasm. The correct thing to do is to ensure that that is not a Great Britain Private Member's Bill but a United Kingdom Private Member's Bill. I am glad that as a result of the representations that my hon. Friend made, the sponsor has agreed to extend the Bill to the whole of the United Kingdom.
§ Mr. Robin F. Cook (Edinburgh, Central)
I hesitate to correct the right hon. Gentleman, but I believe that that Bill does not apply to Scotland.
§ Mr. Powell
That may be. I can understand that in these matters, where 1166 the law of Scotland is often radically different from that of England and Wales. I should have said England and Wales rather than Great Britain. However, since the same point does not apply to the law in Northern Ireland, my argument—the hon. Gentleman would accept this—is unaffected.
We shall get into difficulties if we do not legislate for Northern Ireland, even when the legislation is private legislation, in the same Acts of Parliament as those in which we legislate, as the case may be, for Great Britain or for England and Wales. Fortunately in this instance it does not matter, but this must not be a precedent for cases in which it does matter and in which grave offence would be given to the people of Northern Ireland when they realised that something that could be enacted on this side of the water only as a matter in which the Government were neutral, is imposed in Northern Ireland as a matter of Government policy.
§ Mr. Dunn
The hon. Member for Epping Forest (Mr. Biggs-Davison) asked where the demand came from for this change. I can answer him in two parts. First, I can tell him and the House that there has been an upward trend in the number of rape offences known to the police. The number rose from 17 in 1973 to 65 in 1976—and that ignores the point made by the hon. Member for Belfast, South (Mr. Bradford), of which we are aware, that we know, from information that filters back when it is too late to proceed with any investigation and subsequent charge, that the total number of offences far exceeds the number of cases in which charges are made.
Because the organisations concerned have been making their views known to us, and because several rather severe cases have come to our notice through the courts and the media—both television and the newspapers—we were prompted to propose a change in the law of rape, and we were fortunate in that a Private Member's Bill in 1976 gave guidelines and we were ably to study the response of the majority of hon. Members, which was very helpful to us.
I think that the hon. Member for Belfast, South put his finger on the difficulty when he said that there is a great area of sensitivity, but there is also a great area of distress for those involved, and the 1167 balance is always difficult. One always wants to protect the female from any examination, but at the same time one has to recall the number of cases of rape that have been before the courts only to be dismissed on the basis of evidence that showed that the charges were false from the moment they were made. It is a sensitive balance in the order. We say that only when conviction has been decided by the court shall the name of the person accused of rape be available for general publication.
The right hon. Member for Down, South (Mr. Powell) once again leads me on to the path about the Northern Ireland statue book. The right hon. Gentleman normally listens to me as intently as I listen to him. We have always taken the view that we should try to protect the Northern Ireland statute book in such a way as to ensure that when and if a devolved Administration or some form of devolved government returns to Northern Ireland the statute book will be there for it to inherit, in much the same way as we did when we took over responsibility for the Province.
I know the right hon. Gentleman's views about integration, and I do not wish to quarrel with him on that score. At the same time, I do not wholly agree with him that this is the best method of dealing with the problem of social legislation for Northern Ireland. It is always difficult to decide just how much legislation the Government of the day should introduce on Northern Ireland affairs. We have to take account of the people and the way in which they have generally responded, and also their traditions and culture, which may be different from that in other parts of the United Kingdom. I hesitate to suggest that in some respects social law reform in Northern Ireland would be a very difficult path to take if we simply accepted the measurement that what was applicable in the majority of the United Kingdom should automatically apply to Northern Ireland.
The right hon. Gentleman and others will know that the Standing Committee on Human Rights has often been a guiding factor in recommending, after full consultation with the community, what law reform could be proposed for the Province. I understand that from time to time even those recommendations can 1168 be controversial. But that is the measure by which we then respond.
The only protection that I can give to the right hon. Member for Down, South, and to other hon. Members who represent Northern Ireland constituencies is that once any proposed law reform is engendered it is generally put in draft outline and submitted for extensive consultation. A number are now going for the three-month consultative period extended beyond that normally applicable. That is the only way in which we can do it.
In many ways we as a Government go in the same direction as the House would normally wish to go. We accept that in many cases these matters are dealt with by Private Members' legislation. But at the end of the day we still have a responsibility not to stand back when reforms are required. The challenge can be made that we ought not to proceed with legislation without getting the same sort of procedure operative in Northern Ireland and the rest of the United Kingdom. That is a great difficulty. What we are attempting to do is to take account of the need for reform and at the same time to keep the Northern Ireland statute book protected. This is a matter of some disagreement among us and I am afraid that I cannot resolve it tonight. However, I welcome the general expression of support that has been made across the Chamber.
§ Question put and agreed to.
That the draft Sexual Offences (Northern Ireland) Order 1978, which was laid before this House on 15th February, be approved.