§ 2.52 p.m.
§ Order of the Day for the House to be put into Committee read.
§ THE LORD CHANCELLOR (VISCOUNT KILMUIR)
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee on the Bill. —(The Lord Chancellor.)
§ LORD SILKIN
My Lords, it might be for the general convenience if we spent a moment or two discussing the procedure under which we will consider particularly Clause 1. There are thirteen Amendments to the clause on the Paper, some of which overlap, some of which are interdependent, and it seems to me that if we were to go seriatim through each of these Amendments we might take up a great deal of unnecessary time. I wonder whether I may respectfully suggest that we try the same procedure as we tried on the Town and Country Planning Bill, when we had a similar problem with a considerable number of Amendments on the same subject. In that case we decided to have a general discussion on the first Amendment on the Paper—which in this 778 case, I understand, is to be moved by the noble and learned Lord, Lord Denning—and on that discussion other Amendments could be discussed by general agreement and in due course, if necessary, voted upon. I wonder whether that sort of procedure would be convenient. I certainly think it would, rather than going through each Amendment separately.
§ THE LORD CHANCELLOR
My Lords, I think there is great merit in the suggestion of the noble Lord, Lord Silkin. If one may reduce it to concrete terms, Amendment No. 1 obviously looks forward to certain of the other Amendments, and certain of the other Amendments look back to Amendment No. 1. Therefore, I think that would be a convenient course, and I should be glad to comply with it.
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD AILWYN in the Chair.]
§ LORD STONHAM
Before the Chairman of Committees invites the noble and learned Lord, Lord Denning, to move his Amendment, could he say something further on a point which has been raised by my noble friend Lord Silkin? He suggested that a number of Amendments could be discussed together in one general discussion. That seems to me to be a good suggestion which might apply to the first four Amendments. After the first four Amendments on the first clause, the others appear to be on particular points, not all of them in agreement. Could we have advice upon that?
THE DEPUTY CHAIRMAN OF COMMITTEES
It is essential that each of the Amendments shall be called in due course, and discussions can take place upon each Amendment. It goes without saying that I have to call each Amendment in turn.
§ Clause 1:
§ Loitering or soliciting for purposes of prostitution
§ 1.—(1) It shall be an offence for a common prostitute to loiter or solicit in a street or public place for the purpose of prostitution.
§ (2) A person guilty of an offence under this section shall be liable, on summary conviction, to a fine not exceeding ten pounds or, for an offence committed after a previous conviction, to a fine not exceeding twenty-five pounds or, 779 for an offence committed after more than one previous conviction, to a fine not exceeding twenty-five pounds or imprisonment for a period not exceeding three months or both.
§ (3) A constable may arrest without warrant anyone he finds in a street or public place and suspects, with reasonable cause, to be committing an offence under this section.
§ (4) For the purposes of this section "street" includes any bridge, road, lane, footway, subway, square, court, alley or passage, whether a thoroughfare or not, which is for the time being open to the public; and the doorways and entrances of premises abutting on a street (as hereinbefore defined), and any ground adjoining and open to a street, shall be treated as forming part of the street.
§ LORD DENNINGmoved, in subsection (1), to leave out "a common prostitute" and insert "any person". The noble and learned Lord said: I welcome the suggestion that the first four Amendments should be discussed together, because they hang together. Before I discuss the first Amendment, may I mention two points by way of background? The first is that the object of the Bill is said to be the suppression of a self-evident public nuisance—the persistent and blatant parading of numbers of women in the streets, in Hyde Park, and so forth. Hitherto, there has been local legislation to deal with London and the towns. This Bill deals with the whole country—with the villages as well as the towns; not only with London, but with the front at Brighton; with the camps at Aldershot and Portsmouth, and with the country roads leading to the isolated Air Force station in the country. It does not deal with women in numbers; it deals with women individually. That is my first point of background.
§ The second point is that there is no attempt in the Bill to say that prostitution is unlawful, or make any attempt to stop it. It is realised that that would be a hopeless task—as hopeless an endeavour as the endeavour of King Canute himself. The first Amendment, therefore, is one which asks that the words, "a common prostitute" should be left out and the words "any person" inserted. The introduction of the words "common prostitute" is, I suggest contrary to a fundamental principle of our English law—that principle being that you are not allowed to bring in evidence a person's bad character unless and until he is convicted. Indeed, if this Bill passes 780 in its present form a woman would be charged "that you, being a common prostitute, did loiter or solicit in a street." Would you hear of such a charge as "You, being a professional burglar, did break and enter such and such a dwelling house"? The thing is unthinkable in our law. Never can you bring in evidence against a person and say, "You are the sort of person who would do a thing like this and therefore you are the person who did it."
§ Not only is it contrary to fundamental principle, but it is contrary to precedents of our legislation. Take the precedent of the man who solicits or importunes in a street. The Act does not say, "If any male prostitute shall solicit or importune in a street." It does not say, "If any known homosexual shall solicit or importune in a street." The Act says, "If any man shall solicit or importune in a street." Take loitering in a street for betting. The Act does not say, "If any bookmaker shall loiter in a street for betting". It says, "If any person shall loiter in a street for betting." Those are precedents through all our law. You never identify a class or individual by his bad character. What, indeed, is "a common prostitute" as distinct from an uncommon one? A "common prostitute" is only a prostitute with a scornful epithet applied to her.
§ The only precedent, if it can be called one, in our law is the special Statute which says that "a suspected person or a reputed thief", if he is found loitering with intent to commit a felony, shall be guilty of an offence. That is a very different case. The courts have insisted that the intent to commit a felony is the essence of it. You have to find a man like a pickpocket actually tapping the pockets of his victims, or a car thief feeling the handles of the cars. You have to prove some preparatory acts of his showing that he intends to commit a felony. In this case any purpose of prostitution is not a felony; it is not a crime; it is not unlawful at all—a very different case from the one I have just mentioned.
§ What about the prejudice, the unfair prejudice, caused by bringing this in? Take the woman who may on this occasion stroll in Hyde Park in the sun, or the solitary woman who may walk along the front at Brighton, or the village girl 781 who may walk along a country road towards an isolated Air Force station. If one of those is charged that being a common prostitute she did loiter in the street in a public place, how is she not prejudiced in her defence, when at the outset she is labelled as a common prostitute—and, indeed, if there are previous convictions they would be brought in against her?
§ Seeing that this provision is so contrary to principle, one asks what is the justification for introducing it. In former days I could understand it. It was introduced to protect the respectable woman from being arrested or summoned before the court. But any argument of that kind has now disappeared, because of the very wise provisions as to caution which are now introduced in this Bill. By administrative provisions which are to be put into operation no woman is to be summoned or dealt with in any way under this Bill except, first, that there is a caution by a policeman, who has to call another officer, and then she may be given the help of a moral welfare worker; after that another caution. If she is found doing it again—and not until all that has happened—on a third occasion, she can be brought before the court. Is there not there now a safeguard against what was the previous fear? These cautions have introduced a safeguard for respectable or innocent women, a safeguard for the new recruit, and therefore there is no reason why the introduction of a phrase like this, so contrary to principle, should be maintained. The unfair prejudice to the accused is the first point on this clause.
§ The second point is the unfair discrimination against a class of citizens, of women as against men. Why should not this clause apply equally not only to the common prostitute or a woman prostitute, in the first place, but also to the male prostitute? These men loiter as much as women, and in the parallel class of case, that of importuning, the convictions run at 500 a year for actual importuning in the street or, as often happens, in a lavatory. They are loitering for the purpose, too. Why should not this clause cover in its very terms not only the woman prostitute but the male prostitute? I go further; I would ask that it covers any person, because there is the offence of "kerb-crawling," which in its nature is parallel 782 to what women are accused of here. Kerb-crawling is by a man who in a motor car loiters—I use the word "loiters" deliberately, for it has been held in the courts that it is possible to loiter in a motor car as well as by walking. The man loiters behind the woman in a motor car; he stops alongside her and then she goes on a bit further; he goes on and stops alongside her again, trying to solicit or invite her into his car.
§ The Wolfenden Report recognised that as a serious nuisance to many well-behaved women, but the Committee felt unable to make any recommendation. If it is a serious nuisance, as it is, if this Bill is amended by inserting the words "any person" we have the first step to bringing it in and making it an offence. Loitering covers the next stage; you can loiter in a motor car as well as anywhere else; and, further, the only word you have to alter is "prostitution," because at the moment prostitution is defined in law as being "an offering by a woman of her body commonly for lewdness for payment in return." The law uses the word "lewdness" because it is not always for sexual intercourse in the ordinary sense. There was a case of a young girl of 14 who for five months had been receiving men. She was found to be a virgin, and it was argued that prostitution was confined to sexual intercourse in the ordinary sense of the word. The Court said no; it extends to lewdness in general—"lewdness", of course, is an old English term which covers such matters.
§ These kerb-crawlers may not be doing it for the purpose of prostitution, because they do not do it for pay, but they are certainly doing it for lewdness, and it only means that parallel extension or amendment for the kerb-crawler to be caught too. The Wolfenden Committee hesitated because, they said, an innocent man might in those circumstances be arrested or summoned. Again, as with the women, the system of cautioning would equally apply. The protection of the innocent woman is so provided for and equally the protection of the innocent man is provided for. I would ask that the words "common prostitute" should be turned into the words "any person", so as to remove the discrimination between men and women and to put the two sexes on an equality for what is substantially the 783 same offence, the kerb-crawler coming in too.
§ I would say one last word on this first clause. Throughout every discussion on this matter emphasis has been laid on the serious public nuisance which is being created and which, as we all agree, must be suppressed. But there is not one word in this Bill to refer to nuisance or annoyance. So that the village girl, miles out in the country, walking along a road by a camp, no nuisance or annoyance to anyone, is liable to be convicted. The solitary woman walking along the front at Brighton, or in any street, is equally liable to be convicted, although no nuisance or annoyance is shown whatsoever. One does not ask, and would not go so far as to ask, that the people annoyed should actually be called. That may be putting too big a burden on people. But surely the essence of the offence is nuisance or annoyance. If words were introduced that it should be conduct "likely to cause nuisance or annoyance", the policeman could very easily prove that in the case of these numerous women in the one case, or the conduct of the man in the car. It is not too big a burden to put on the community if you introduce the words "likely to cause a nuisance". For those reasons I would ask that this first crucial clause be made to leave out the words "common prostitute" and insert "any person". I beg to move.
Page 1, line 5, leave out ("a common prostitute") and insert ("any person").—(Lord Denning.)
§ 3.10 p.m.
§ LORD BRABAZON OF TARA
I rise enthusiastically to support this Amendment, and, as we have been told that we can speak on a fairly broad basis, I should like to remind your Lordships that this Bill is the only thing that has come out of the great Wolfenden Report—it is rather like a mouse emerging from a mountain, because it is not really a very terrific Bill. I think the Lord Chancellor was, if I may say so, very unfair to Dr. Wolfenden and his Committee, because, having asked them to investigate the question of homosexuality after a debate in your Lordships' House, he added as an afterthought to their 784 duties, "Oh, you might as well deal with prostitution at the same time." Well, it is a very different subject—a tremendous subject. As a wit once put it, it is rather like setting up a Committee to investigate and change the rules of Association Football and at the end adding "Rugby Football as well."
I greatly admire the recommendations in the first part on homosexuality. On the second part, in regard to the question of prostitution, I do not think that the Committee have really done themselves justice. I probably expected some rather revolutionary situations, such as that the industry should be nationalised and the profit taken out of it, so that consequently it would disappear; or that the call-girl system might be introduced. That would evidently keep prostitutes off the street. But not at all! All we have really is a Bill which says, "Pass along, please, or you will be fined more that you were before", which is a very poor contribution to a difficult subject.
Of course, we have to face up to the difficulties which the Committee had, because no one has suggested that fornication should be illegal and no one has suggested that prostitution should be stopped. A great Archbishop of Canterbury once declared that just as the executioner, however repulsive he may be, occupies a necessary place in society, so the prostitute and her like, however sordid and ugly and wicked they may be, are equally necessary. Remove prostitution from human affairs and the world would be polluted with lust.
§ LORD BRABAZON OF TARA
I was going to refer to that, lest by any chance the most reverend Primate should think that those were his words. Those were the words of a distinguished predecessor of his, the great St. Augustine.
THE LORD ARCHBISHOP OF CANTERBURY
May I ask the noble Lord whether he means the St. Augustine who was Archbishop of Canterbury, or St. Augustine who was Bishop of Hippo?
§ LORD BRABAZON OF TARA
In passing, I always think it is a sad thing that we have no machinery in this country now for canonisation. There would, of course, be the present Primate and other Members of your Lordships' House who might very well be canonised, but we have not the machinery to do it. All this is very distressing. Here we are, legislating in the most extraordinary way, to my mind—we have had a powerful speech already drawing attention to the fact. I have never seen a Bill, for instance against burglary, which commenced, "No burglar shall enter a house between eight and twelve"; nor have I seen a motoring Bill commencing, "No road hog shall exceed thirty miles per hour". This is a most extraordinary situation, in which you condemn the accused—at any rate, class him as an unpleasant citizen—before he is in the dock.
I feel that some of us in this great House, unlike Members in another place, who can be criticised by their constituents, ought to take the part of these poor girls. I do not suppose that they can ever form a trade union of their own; but somebody should, I think, speak for them. We do not like to enter into an explanation to your Lordships—we are too young—on the facts of life; but when you come to fornication it necessitates two people of opposite sex, and who would want to indulge in it most? Obviously, the person who is going to pay, which is the man. People sometimes forget that. This nuisance which exists on the street would not exist if there was not a man there. It is only because the men are willing that the prostitutes come. It is for that particular reason, I think, that this Amendment, to insert the words "any person" is a fair deal. If you do not put them in, I believe that this particular measure is damned from the beginning as being unjust towards one sex as compared with the other.
§ 3.18 p.m.
THE LORD ARCHBISHOP OF CANTERBURY
I would begin by saying that, if I were a betting man I should be prepared to bet that it was no predecessor of mine who was quoted just now by the noble Lord, but that it was a quite different St. Augustine, who was Bishop 786 of Hippo. It sounds extremely like what he might have said, and I would add that a good deal of his theology on sexual matters is not now regarded with great favour.
I wish to support this Amendment, not only on my own behalf but on behalf of the Church of England Moral Welfare Council, and, I think, on behalf of most informed opinion in the Church. I want to emphasise that. The right reverend Prelate the Lord Bishop of Exeter spoke on the Second Reading debate. He cannot be here to-day owing to an unfortunate, though fortunately not very serious, accident. When he spoke on the Second Reading debate he did not directly deal with the question of whether males should be included or not, but what he said on the question of supply and demand has been taken by some people to mean that he wished the Bill to deal only with common prostitutes and that that was the general view of the Church. That was not his intention, and it is sufficiently disproved by the fact that he is one of the supporters of this first Amendment to include males in the ambit of the Bill.
This first Amendment, which is the only one I want to speak to at this moment, wins support for two distinct reasons. The first is as has already been expounded by the noble Lord, Lord Denning, that it is against justice that a woman, before her trial, should be described as a common prostitute; it is against the basis of British law. I do not want to say a word more about that. But the Amendment is also supported by those who regard it as a violation of justice that men should be excluded. It is that point of justice that I want to emphasise above all. I do not know how much needs to be said in support of it by myself and others in order to secure that this Amendment shall be passed. In the debate on the Second Reading, when, to my great regret, I was unable to be present, I find that ten speakers expressed strong objection to the exclusion of men from the scope of the Bill, two declared no such objection, three expressed no decided views; and only the two Ministers speaking for the Government defended the exclusion of men. And in fact, they did not so much defend it as represent that there was no case for the inclusion of men in this Bill.
787 There is no doubt that the balance of opinion and weight in that debate was wholly in favour of bringing men equally within the ambit of the Bill, and it would save an immense amount of time if we could know whether Her Majesty's Government are willing to accept this first Amendment—no doubt along with one or other of the following Amendments defining precisely what the offence is. Unless we know that, those who consider it vital that men should be included are bound to go on speaking in its support. I want to confine myself to three simple points—the three main points (I do not think there were any others) which were put forward by the noble and learned Viscount the Lord Chancellor and the noble Lord, Lord Chesham, in the Second Reading debate, as justification for confining the Bill to women, or rather to common prostitutes.
The first reason given was that the Bill is a specific Bill to stop specific people from doing a specific thing; or in other words, to stop a nuisance from being created by the people who create it. I accept wholeheartedly that description of the Bill, but it does not follow that the specification is right. In fact, in this particular case I think it is clearly wrong. It has been said, and will be said again and again, that women are not the only persons who create this offence, and that if they were the nuisance would die of inanition. Any person, male or female, who creates or helps to create the nuisance should surely be equally liable.
The noble Lord, Lord Chesham, said that the offensive element in the streets is created by the women. That cannot be so, and it cannot be defended. It is created wherever men congregate. We all know that it is created not least wherever there are military camps and concentrations, which at once draw the prostitutes to that point; and if we have to argue this out I can point to areas, not in this country, where prostitution was unknown altogether until soldiers of a white race were quartered there, since when it has become destructive for the whole area. I believe that the noble and learned Viscount the Lord Chancellor was a great deal wiser when he said that the offensive element is due 788 to a trade that is being carried on. To quote his words [OFFICIAL REPORT, Vol. 216, col. 73]:Trade…openly in the streets and apparently without effective social condemnation.'It takes at least two—one of each sex—to make a trade as successful and profitable as this trade is. So I come to the second main point that was represented from the Government side.
The noble and learned Viscount called it "a trade in immorality", and said that no attempt must be made to penalise the immorality itself—and that we all accept. The offence is in the nuisance or the trade. It is a trade itself that is against public morality, and as soon as it obtrudes itself on the public notice, whether from the male or the female side, it must be dealt with. I would suggest that the words "trade", "customer", and "supply and demand" are deceptive and should be carefully examined. They suggest a comfortable, domestic, ordinary, shopkeeperly relationship between those who are concerned in them; and prostitution is still regarded as such by not a few people, as if the prostitute's profession is not to be objected to so long as it is not paraded or exploited, and as though the demands of the male customer are such that facilities ought always to be available, provided that the streets are not the places where this trade is carried on.
I would suggest a metaphor more apt and more realistic. This trade, as we all know, is the expression of a predatory instinct, a hunting instinct, strong both in men and in women, but in fact more easily controllable by women, if they wish, than it is by men. Men are the natural hunters for this kind of satisfaction, and always have been. Some women began very early to find it profitable, and even pleasant, to be captured, until they learned, all too well, the art of becoming hunters themselves; and both men and women hunt and are hunted. That, I suggest, is a truer way of looking at it than talking about "trade" and "supply and demand" and "customers ".
In public places, out of all the men who pass by, some will be hunters; and out of all the women who pass by, some will be hunters, too. If the trade is to be kept off the streets, it is the hunting which must be driven off, whether that 789 hunting is done by women or by men. Both justice and common sense would seem to indicate that where there is a nuisance both sexes are equally implicated and ought equally to be liable. There remains a third point—and I could not detect any other points of substance in regard to the omission of men from the Bill: that it is comparatively easy for the police, by observation, to identify a well-known prostitute. If the words "any person" are substituted then, as the noble Lord, Lord Chesham, said, the risk of a respectable woman being arrested would be increased—and, I must add, the risk of a respectable man being arrested, which for the first time in this context would have to be reckoned with.
Her Majesty's Government take the view that the present state of affairs is a grave scandal and a self-evident public nuisance, and that the public are entitled to have effective action taken to remove it. If it is to be removed, some risk must no doubt be incurred. Wherever there is an offence of any kind there must always be a risk that some person will be wrongfully accused. The noble Lord, Lord Denning, has said that in this case, owing to the system of cautions and what-not, it is extremely unlikely that an innocent person will be interfered with by the police. There are, at any rate, to be two policemen at work, and one would hope that mistakes would be extremely rare. I do not see why mistakes should be more than very occasional; and if they were made, the magistrate would have no difficulty at all in sorting out the facts.
It would, of course, be a very unpleasant experience for anybody to be tackled by mistake, but I repeat that if that degree of risk is the necessary price to be paid for saving our streets and public places from having a worse reputation in the world than those of any other capital in Europe, I believe that that risk ought to be taken and that that price ought to be paid. So I would suggest that, so far as has at present been disclosed, there is no substantial argument from the Government side on why men should be excluded from the operation of the Bill, and I pray that the first Amendment, which includes men in its scope, will he carried without any shadow of doubt.
§ LORD BOOTHBY
I should like to say just two sentences in support of this Amendment. Prostitution in itself is not an indictable offence in this country. There is no suggestion in this Bill that it should be made an offence, still less a crime. But if this clause goes through in the form in which it is drafted at present, it will mean that we brand certain women as "common prostitutes" on the ipse dixit of a single constable. I submit to the Committee that to brand certain women by this extremely unpleasant phrase, to introduce at this time such a phrase into legislation in this country, is to go back to a caste system by which we create a number of "untouchables", and not always rightly. I think it would be a travesty of justice to do that. I am in complete agreement with the most reverend Primate the Lord Archbishop when he said that it was necessary to put men and women on an equal footing in this matter; and I sincerely suggest that if we let this phrase "common prostitute" go through it will be a most shocking thing. It will have to be repealed, and it is just to stop this sort of thing that this House exists.
§ VISCOUNT SAMUEL
I should like to support the Amendment now before the Committee for the reasons that have been so admirably given by all the previous speakers. The noble and learned Lord, Lord Denning, pointed out that there are really two specific points covered by this one Amendment. The first is the rule that persons of both sexes who are guilty of what is substantially the same offence should be treated in exactly the same way, and it is impossible for this Committee to agree to put upon the Statute Book a law which would say that a woman should be punished for such an offence while a man who is guilty of practically the same conduct (though perhaps the motives may be different) is to go scot-free and no notice whatever is to be taken of his behaviour.
The second point is the extraordinary terms of this Bill, which opens with the wordsIt shall be an offence for a common prostitute to…I do not know that there is any precedent for a clause of that character. Looking up this morning the speech of the noble Lord, Lord Chesham, on the occasion 791 of the Second Reading debate I was very much surprised at two points that I read. It may have been due to my lack of information or it may be that the points were not sound ones. He said [OFFICIAL REPORT, Vol. 216, col. 132] that the term "common prostitute" is a…well-understood term…which has been in use for something like 135 years…I should like to know whether it appears in other Statutes—perhaps the noble and learned Viscount the Lord Chancellor will tell us about that—and, if so, whether it has been defined in a Statute or whether it has been a matter only of Case Law.
The second observation which the noble Lord, Lord Chesham, made was this [col. 133]:The words 'common prostitute' on the charge sheet will mean only that the police think that they can prove that she is a common prostitute in the same way that any other statement on a charge sheet has to be proved.Do the lawyers in the Committee agree that that is so? Are we really to suppose that the magistrate will be faced first with the charge that a woman is a common prostitute and, second, with the charge that, being a common prostitute, she has been guilty of loitering; and she would therefore be punished for the two offences taken together? Is not that equivalent to making prostitution itself a crime? Is that what is intended?
But if prostitution in itself is not to be regarded as a crime, how can it appear in this Bill in that context and be made a charge on the charge sheet to be proved by the police? I cannot conceive that any other offences, as the noble and learned Lord, Lord Denning, indicated, could possibly ever be treated in this way according to English Statute law. If public opinion were to be made more anxious even than it is about the amount and extent and increase of larceny and robbery and were to say, "This must be put down", should we expect to have a Bill starting," Any notorious thief who has been found loitering…"—
§ THE LORD CHANCELLOR
Would the noble Viscount forgive me for interrupting? As the noble and learned Lord, Lord Denning, pointed out, we have 792 such a Bill. There is a Statute which begins,…being a suspected person or a reputed thief loiters with intent to commit a felony…We have such an Act on the Statute Book already.
§ VISCOUNT SAMUEL
But here there is nothing said about previous convictions that have been proved. Similarly, with the Bill introduced by my noble friend and Leader, Mr. Herbert Gladstone, for preventive detention for habitual offenders or persistent offenders: those are persons who have been proved in court to have been guilty again and again of certain classes of crime. I would ask the noble and learned Viscount the Lord Chancellor when he replies to deal with that particular point: precisely what would be the status of a "common prostitute" in the eyes of the law if this Bill is passed in those terms.
But I was saying that we should be very much surprised to find in any similar measure the first words of the first clause referring to "any notorious thief". Similarly, if public opinion is greatly alarmed at the number of motor accidents due to the abuse of alcohol, and the Government of the day are pressed by public opinion to introduce a Bill, should we expect a clause to begin: "Any habitual drunkard who has been charged with driving a motor vehicle to the public danger and who has been proved guilty of so-and-so shall be liable to a penalty"? The question at once arises: what is an habitual drunkard? Has he been convicted in court of drunkenness or is it notorious that he has been seen in the neighbourhood rolling drunk? For these reasons it appears to me that we must have further elucidation of the matter, and I shall need a very convincing speech from the noble and learned Viscount the Lord Chancellor—and I have no doubt it will be as convincing as the case will possibly allow—before I shall be induced either to vote against or to abstain from voting on this Amendment.
§ 3.38 p.m.
§ LORD STONHAM
I have no legal experience and speak only as a layman, but I support this Amendment and object to the expression "common prostitute" on two grounds. One is that it offends the ordinary layman's sense of British justice; and the second is that it will not achieve what it sets out to achieve, or, if it does, it will, in the words of the supporters of this clause, sweep the vice under the carpet; and I think the stain which will then show through the carpet will be far more offensive than the present situation. With regard to the law, as I say I know little of it, but I always thought that in British justice all people should be equal before the law. It seems to me extraordinary that we should now be promoting a Bill which refers to a person being "a common prostitute". Who ever heard of a Bill promoted concerning persons being "sexual perverts" or something of that kind? That, I should have thought, was an exact parallel.
The noble and learned Viscount the Lord Chancellor referred just now in stirring tones to the fact that it was possible in British law for someone who had known convictions to be arrested for loitering with intent to commit a felony. But I would submit that that is no parallel whatsoever; because someone with convictions, possibly an ex-burglar, who is loitering with intent to commit a felony is loitering with intent to commit something which is a crime in British law—housebreaking, or something like that. Somebody loitering for the purpose of prostitution is not loitering for the purpose of committing a crime at all, because prostitution is not a crime in British law. Therefore, those two points which have been put up—and I speak very humbly as a layman—are most definitely non-starters.
It seems to me that this Bill proposes to do something which is utterly impossible in the eyes of the ordinary British man and woman. Not only does it propose to remove the equality of all people before the law: it would bring about this quite indefensible creation of a special category of women to whom, and to whom alone, certain proposals and penalties would apply. Above all, it would create a situation which I think is without parallel: that a person would be adjudged guilty before being charged 794 or at the time they were charged; at the time, in fact, that they were arrested. Moreover, that would be a person on whose behalf there could be no successful defence whatsoever. It is inconceivable that, if that point is acknowledged, any noble Lord could do other than support this Amendment.
It was suggested on Second Reading by the noble Lord, Lord Chesham, that the reason for introducing the term "common prostitute" was that the police could recognise them and therefore would not be in danger of arresting or cautioning some innocent woman. I would submit that for that very reason—that they can be recognised—they can be arrested, and there is therefore no possible reason for this suggestion. It is a well known fact that in the West End Central Police Division some 800 to 900 prostitutes are arrested every year, and there are some 7,000 convictions a year in that one police division—in other words, an average of nine convictions per woman. Of course these people are known to the police: and we have it on the authority of the Attorney-General that the number of new entrants each year "is by no means large". So it is beyond question that this comparatively small number of women, operating in a small area, must be well known to the police, and known as common prostitutes.
Under this Bill these women can be summarily arrested without having cormmitted any overt offence at all. There is no longer the fiction that they have annoyed someone. They can be picked up if they are walking, standing still, or looking into a shop window. There can be no defence, because if a woman is charged as a common prostitute, in the very framing of the charge against her she will be found guilty as soon as charged. If she says, "I was not causing any annoyance", she will be told annoyance is no longer part of the charge; if she says, "I was not soliciting", she will be told, "That is no defence, because soliciting alone is not an offence"; if she says, "I was not acting as a common prostitute; I was just walking along making up my mind to reform", she will be told, "Ah, but we believe the constable's opinion of what you were intending to do at that time". I think that this is an intolerable situation. If we accept this clause, and if we fail to support the Amendment, it 795 will be a complete abrogation of everything that British justice stands for. We know that prostitution is a shameful thing, but do not let us do something to-day more shameful by authorising this proposed method of removing these women.
I said that if this Bill goes forward as it stands it will create a worse evil; that it will sweep it under the carpet. I think that already we are in a position to say that that is what is going to happen, because prostitution can be—and, indeed, is being—moved on without any aid from this Bill at all. Your Lordships will be aware of the recent outcry in Stepney. The local residents, the Borough Council, and the clergy, joined in protesting that it was the worst place in London. Deputations saw the Home Secretary, and protests were raised in another place. All is silent now: the prostitutes have gone, although this Bill is not yet on the Statute Book.
What happened? I put it to the noble and learned Viscount the Lord Chancellor, who I assume is to reply, that this is what happened: that the Home Secretary demanded action from the Police Commissioner; that the Police Commissioner, in turn, insisted on action from his subordinates in Stepney, and that they, in turn, simply told the prostitutes and their protectors that "the heat was on" and they would have to go. It is as simple as that. If the police at top level were instructed, or were determined, that street-walking in its present form must end, they could see that it was ended. The same thing has happened in Paddington, although since the outcry was not so great, the results have been less decisive. But I put it to your Lordships that what happened in those two districts, beyond any question, can happen elsewhere, and that the streets in the West End can be cleaned up by administrative action in the same way.
I emphasise that only the streets would be cleaned up, because since the publication of the Wolfenden Report, the prostitutes have developed a new method. They leave their cards and their telephone numbers in the places where they formerly paraded. Last Wednesday, at four o'clock on a very sunny afternoon, because of what I had been 796 told, and because I do not believe in talking about things I have not seen for myself, I took a walk into Soho. There I saw that the practice has arisen whereby certain newsagents have found that, instead of charging 6d. a week for a notice advertising a perambulator or "daily help wanted", they charge 10s. a week for a prostitute's card. It is found very much more profitable. On that Wednesday afternoon I stopped at No. 23, Frith Street, Soho. It is the shop run by the Continental News Agency. Its left-hand window is usually occupied by a board where, under a liberal display of pornographic literature, there are displayed twenty or thirty of these prostitutes' notices. At four o'clock last Wednesday, although the shop was open for business, and although the right-hand window was clear and one could see the goods in it, the left-hand window was completely obscured by a blind drawn down. On the outside of the blind was a notice which read as follows:This window has been closed at the request of the police because of the obstruction caused by the crowds reading the notices. Please do not obstruct the pavement".Just around the corner, in Old Compton Street, there was another newsagent, who was also open and whose left-hand window was also almost completely obscured by a blind. It was a rather ill-fitting blind, and at the bottom a few cards could still be seen. I dotted down a few samples:'Doreen', tantalising blonde",then a 'phone number,Two minutes from here.'Mollie, olive skin, 38.24.38."—I think that refers to measurements—Aged 23, 'phone Bayswater 6944.That is a Paddington address, advertised in Soho: having been pushed off the streets in Paddington, she is advertising in Soho. Then another:'Phone 'Pretty Penny' aged 19—Victoria 3487"—again not a Soho address. Yet another said:Call 'Marina', 20 Lisle Street, 12-8 p.m.There was no telephone number, presumably because she was only just round the corner. In Dean Street there was another window—no blind this time—displaying similar kinds of notices. One 797 was advertising three models, which was presumably a brothel.
I would submit, as the most reverend Primate the Lord Archbishop of Canterbury has said, that these notice boards and the crowds around them are a greater evil than the prostitutes on the streets. Imagine a young man coming along that street reading those notices. It is far worse, and far more likely to corrupt, I would say, than seeing the prostitutes—because no man in his right mind, or any sensible person who has ever seen one, could possibly ever be tempted. But to be invited in this way to telephone somebody mysterious is a far greater temptation and far more likely to corrupt young people. Apparently it would satisfy the Wolfenden Committee, but I cannot believe that that sort of thing will satisfy the Government.
My second thought on this is that if the whole world and I can read these things, so can the police. So I would ask the noble and learned Viscount what reports he has had from the police about this new method, and why they should stop short at warning shopkeepers about obstruction. What action has been taken about the ladies who publish these advertisements? Would a shopkeeper who rents a board at from £10 to £15 a week be considered to be living on immoral earnings? Would the noble and learned Viscount also say whether it is because of administrative action that similar notice boards have been removed from the Victoria, Paddington and King's Road (Chelsea) districts? They just have the old-fashioned, refined notices like the one which I saw in a King's Road (Chelsea) window last week:Refined lady seeks part-time occupation; attractive and versatile.It then gave a telephone number. That is what must be made clear. The streetwalkers who have gone off the streets have left their cards behind them and are tempting people to such an extent that the blinds have had to be drawn at four o'clock—I do not know if they are pushed up later at night, but they are drawn at four—because the police say that obstruction is being caused. This is the sort of thing we are asked to make the law of England. This is the way in which we are asked to deal with this.
798 I believe that I have given your Lordships facts which cannot be disputed. In my submission, they prove that if the Government will give the police firm instructions and see that they are carried out, prostitutes can be removed from the streets. This can be done by administrative action. But whatever our opinions, please do not let us take a step this afternoon which would be a complete abnegation of all that British justice stands for and which would have the additional demerit of failing completely and putting in its place something far worse. I hope that your Lordships will support this Amendment.
§ 3.55 p.m.
§ VISCOUNT ASTOR
This Bill is very difficult. One finds that the present situation in the streets is bad; one finds the proposals rather difficult and the Amendments equally difficult. I think that there are two points to be considered on this question of making this Bill applicable to men as well as to women. I am sure that your Lordships will be unanimous in thinking that measures should be taken against male prostitutes who haunt the streets. Under the Bill as it is at present, they would be excluded. Surely they must be on the same level as the women who haunt the streets for the same purpose. When we come to the question of the customer, it becomes far more difficult. If this Amendment were passed and also Amendment No. 3, a foreigner who happened to ask the way in the street would find himself in peril. Any motorist who stopped to offer a lift on a wet night—and I suppose that most motorists offer lifts to people—might be said by a policeman who saw him stopping to be stopping for an immoral purpose. If the person to whom the motorist wished to offer a lift did not want to get involved and walked on and would not give her name, then the motorist who tried to do an ordinary act of charity or courtesy would be in danger.
It seems to me the right thing to put the sexes in a position of equality under the Bill, but only if it could be definitely proved by the person who was solicited or stopped and talked to that the other person was doing it for an immoral purpose. If it is left merely a matter of whether the police think so, 799 there will be dangerous consequences and many unfair prosecutions. Therefore, I should like to back the first Amendment, provided that the Amendment which stands in the name of the noble Lord, Lord Stonham, and the noble Baroness, Lady Wootton of Abinger, is also passed. If, however, Amendment No. 3 in the name of the noble and learned Lord, Lord Denning, is passed as well, this Amendment should be opposed.
§ LORD WINSTER
I support the Amendment, and I should like to say a brief word about it, especially about the use of the words "common prostitute". I referred to this matter on Second Reading. Since then I have made such inquiries as I can, and I cannot find any other Statute which uses the word "common" in relation to a person. It seems to me that the use of the words "common prostitute" has been handed down from early days. The words appear in the Town Police Clauses Act, 1847, Sections 28 and 35, and in Section 2 of the Criminal Law (Amendment) Act, 1885. The words were also used in Section 22 of the Sexual Offences Act, 1956, which provides that it is an offence for a person to procure a woman to become a common prostitute in any part of the world.
I think that the reason the word "common" is used is because of something said by Mr. Justice Darling when trying a case. He used these words:We are of the opinion that prostitution is proved if it be shown that a woman offers her body commonly for lewdness by payment in return.I think that perhaps that is where the words "common prostitute" find their origin. As the word "common" is used in the Statute, of course, it is necessary for the police, when charging anyone under the appropriate sections, to use the term "common prostitute". I confess that I cannot see what is gained by using the adjective "common" in front of the noun "prostitute". I feel that it would be instructive if we could be told what purpose is gained by the use of the word "common". It seems to me that it could quite well be omitted and, if it were thought desirable, the word "prostitute" could be defined in the interpretation clause of the Bill. It is because I 800 feel that the use of the word "common" is unnecessary that I strongly support the Amendment.
THE LORD BISHOP OF NORWICH
I support the Amendment. I have been more or less connected with the problems of prostitution and immoral conduct for a long time and can look back on a pretty complete experience of them. That leads me to welcome Government action on the matter. We have waited for a long time, but we must remember that the mere fact that we have had to wait for a long time for legislation on this subject inevitably means that we shall wait for a long time further before any alteration is made in the legislation to which we now agree. Surely it is a thousand pities that a Bill should be introduced, and perhaps passed, on a subject like this that has not a great measure of public agreement behind it. Surely this problem is one for a non-Party and agreed measure, resting on the great amount of experience and knowledge that there is in this country about this difficult matter.
But I must address myself merely to the Amendment. Of course I dislike intensely the term "common prostitute" in this connection. It has been said that it has a long legal history, as of course it has. But that legal history began when "common prostitute" meant something very different, or at least had a different significance in social life, from what it has to-day. The term goes back to the time when every common prostitute had her own beat and violently objected if any other prostitute intruded upon it. She was well known to the police. From time to time she was arrested and charged, not for being a prostitute, but for causing some annoyance; that is to say, she had committed a crime which was, in fact, that she was herself the supply that the demand of men had created. I thought it had been agreed long ago that that was unjust treatment. Did not Mrs. Josephine Butler help England to understand years ago that social justice and humanitarian justice demanded that in this matter men were equally concerned with women, and that it was unjust and wrong to punish the woman and to have nothing whatever to do with condemning the man?
801 However, the situation from those long off days has radically changed, particularly, I suggest, in two ways. There is no doubt still a class or profession of common prostitute, although it is nothing like so evident in most of our streets now as it used to be. A great many of the women who are creating the present problem frequent only certain districts and certain streets; and many of them have taken to that way of life as an occasional, a temporary or a casual occupation. They are not people who can rightly or fairly be described as common prostitutes. The second difference is that the trouble in the streets to-day is caused not by this or that woman here and there loitering or soliciting, but by the congregating of large numbers of loose women in a particular area or district and, therefore, drawing to them a large number of men, some of them seeking immoral intercourse, some of them touts, procurers, crawlers and homosexuals, who are equally to be condemned. To argue, as this first clause of the Bill does, that the whole of the present trouble is caused by the common prostitute is just not true. It is being caused quite as much by these loose-moralled men who gather in these places. To condemn the women alone, and to allow the men, as the Bill does, to continue their immoral conduct with complete immunity, is surely not what we mean by British justice.
I feel that there is one other element that ought to be very much in our minds. By Clause 1 of the Bill, because of the removal of any suggestion of annoyance, the only evidence when any case is brought before the court must be the evidence of the police. I imagine that the clause, if it passes, will produce a great many contested cases; and what will happen then it is difficult to understand. But my real point here is this: is it fair to lay the whole responsibility for bringing these charges and proving them upon the police alone, without any kind of supporting evidence? It is conceivable that such action would clean the streets; but it would have been done, I think, by legislative action which is in itself unjust. I wonder what the effect might be in other Dominions of the Commonwealth, where they have not the same great traditions of police integrity as we have here, but where they are liable to copy the legislation of this 802 country. There might be most undesirable consequences in that respect. On all these grounds that have been so eloquently put before the Committee, surely strong and important grounds, and particularly, perhaps, on the ground that if we are legislating on this matter we ought to try to get, so far as possible, an agreed solution, I beg your Lordships to favour the Amendment of the noble and learned Lord, Lord Denning.
§ 4.7 p.m.
§ THE LORD CHANCELLOR
I feel that I ought to intervene at this point (which fortunately on a Committee stage does not bar anyone else from speaking) because of the two major and many minor misapprehensions under which many Members of the House are labouring at the present time. Noble Lords who have spoken have expressed the view that "common prostitute" is a label and something that need not be proved. That is, of course, entirely wrong and shows a complete misunderstanding of how this Bill will operate. The second point is that, from the speeches of noble Lords that I have heard, one would think that men who committed various offences which have been mentioned are not subject to punishment at the moment. That is another complete misapprehension. I ask your Lordships to take the general impression of the speeches that have been made, and I say that that is a fair description of the impression that has been created, either, I am sure, through ignorance, in some cases, or, in others, through the inappropriate choice of words or by mistake.
It is essential, however, that we should know the facts. Let me take one or two of the minor matters that have been raised in the debate, which are equally matters of misapprehension, and then I will deal with the points—and I hope your Lordships will forgive me if I speak at rather greater length than I usually do on Committee stage, because it is an important point and one on which strong feelings are held. The noble Lord, Lord Brabazon of Tara, said that I had been unfair in referring this matter to the Wolfenden Committee. He said that I had done it as a sort of irresponsible addition to the homosexual remit to that Committee. I 803 wish the noble Lord had had my experience at the Home Office from 1951 to 1954. If he had had the number of deputations that came to see me, and the number of complaints that I received by letter about the awful conditions for ordinary decent people in many parts of London, he would, I think, have wanted an up-to-date reassessment of a problem which everyone knew existed.
Then the right reverend Prelate the Lord Bishop of Norwich chides me most gently—and I take no offence at it—for introducing this Bill without attempting to get approval. I have been a Minister of the Crown for only eleven years, but I have been in one House of Parliament or another for a quarter of a century. When there is a difficult subject on which there are diverse views and which has a moral content, I should have thought that the reasonable and sensible course was the one which I took, which was to refer it to a strong Committee in order to get their views and suggestions.
Now I come before your Lordships' House to put these suggestions into legislative form (because this Bill follows the suggestions of the Wolfenden Report) and I am childed for not having attempted to get agreement. The way of a legislator is hard, and I am the last person in the world to complain about that. One of the greatest trade unions in the world is the trade union of ex-Home Secretaries. And when my noble friend Lord Samuel asked me whether the words "common prostitute" had ever appeared in a Statute I was surprised, because I am quite sure that in those halcyon days when he was at the Home Office, first as Under-Secretary, then as Home Secretary and then as Home Secretary again—great days as they were, as I have told your Lordships in other connections—he must have had drawn to his attention that as long ago as 1824, in the Vagrancy Act of that year the words occurred:every common prostitute wandering in the public streets or public highways.The words occur again in the Metropolitan Police Act, 1839, Section 54, and the Town Police Clauses Act, 1847. I was indebted to the noble Lord, Lord Winster, for his research. He had not gone quite far enough back because 804 as he will realise that is roughly a hundred years before Mr. Justice Darling gave the judgment to which I referred.
§ BARONESS WOOTTON OF ABINGER
If the noble and learned Viscount will forgive me, may I ask whether, in any of the Statutes to which he has referred, the definition of "a common prostitute" appears?
§ THE LORD CHANCELLOR
The noble Lady is quite right, and this is where the noble Lord, Lord Winster, was entirely right, or at least I fully agree with him. The definition of the term which has been used for over forty years is the one that Lord Winster quoted—that prostitution is proved if it is shown that a woman offers her body for lewdness for payment in return. The noble Lord was quite right that that has been the basis of the matter for forty years, and that is why I say it is a fully understood term. But Mr. Justice Darling was simply giving effect to the view that had been taken on the term which had existed, as I say, for nearly a hundred years before that time. These are merely some of the points, but I want to elaborate them and to make my case.
As I said, the Bill is aimed at the nuisance created by prostitutes who ply their trade in the street. It is not intended to penalise the woman who makes an occasional or casual immoral encounter. It is directed at this public scandal, nuisance, menace, call it what you like, which undoubtedly, incontrovertibly and undeniably—undeniable even by my most fervent controversialists this afternoon—exists in London. It is for your Lordships to decide whether we are going to take a step which will deal with that public scandal or whether again the best is going to be the enemy of the good, and your Lordships are going, if I may put it colloquially, to chase your private hares so that no benefit comes to the ordinary citizen of London and the other big cities who is suffering.
THE LORD ARCHBISHOP OF CANTERBURY
May I ask a question? How does it weaken the effect of the Bill by adding men to it?
§ THE LORD CHANCELLOR
If the most reverent Primate will only wait —one cannot deal with every point at once—I will deal with his point with pleasure. I am glad to answer any point, and I assure him that I am going to deal with it. The gist of this Amendment is that it is to extend the offence at the moment—until the most reverend Primate has chosen the successive words from the other Amendments—to prostitutes, male or female, regular or casual. I was saying—and I do not think that this is denied—that what we want to deal with is the public scandal of the congregation of prostitutes in areas, to the impossibility of a decent and comfortable life for ordinary people. That is our general aim.
I said before I was questioned that it is not intended by this Bill to penalise the woman who makes an occasional or casual immoral contact. That woman obviously does not constitute or contribute the nuisance with which we are dealing here. It is a good rule that a penal measure should not seek to go beyond the mischief at which it is really aimed. It would be going far beyond the purpose of the Bill—which is to deal with that scandal—to make it an offence for any person to loiter or solicit in the street or public place for the purpose of prostitution. We say that the continued use of a term which has been on the Statute Book for 125 years and has been construed in an accepted way for over forty years is the best way of dealing with this actual mischief of the congregation of large numbers of prostitutes in specific parts of London.
The most reverend Primate is worried about the wrong-doing men who get out. I think we should analyse that, because I am not sure whether the most reverend Primate appreciates the weapons that are at this moment in the armoury of the law to deal with these men. I should like to put them quite objectively and as accurately as my research has enabled me. We deal separately with the question of the customer, because I think he is in a special position, but I want the most reverend Primate to appreciate that I am not leaving that out of consideration.
I want first of all to deal with those that have been mentioned at this stage. The men who pester the women, and 806 who loiter and solicit in their pestering, although they cannot be said to be doing it for the purpose of prostitution, because they are not themselves offering their lewdness for reward, are covered by Section 32 of the Sexual Offences Act, 1956. That makes it an offence for a man persistently to solicit or importune in a public place for an immoral purpose. That does not mean that he has got persistently to go on with the same woman: it is enough if he solicits or importunes a series of indviduals. In fact, in the less serious cases such men are often dealt with, for convenience, for using insulting words or behaviour under Section 54 (13) of the Metropolitan Police Act, 1839, or the equivalent local Act or by-law provisions in the provinces.
Various speakers have mentioned the specific example of kerb-crawlers. I was very anxious to get information on that point. The kerb-crawlers can be dealt with under both the sections I have mentioned, Section 32 of the Sexual Offences Act or Section 54 of the Metropolitan Police Act, and in the provinces, of course, under the corresponding provisions in local Acts. The penalty for an offence under Section 32 of the Sexual Offences Act is six months imprisonment on summary conviction and two years on indictment; or the magistrates' court can, as an alternative, impose a fine up to £25; on indictment the fine is unlimited. Under the Metropolitan Police Act, or the local Acts, the penalty runs at £10, £5 or something like that, if the offence is less serious and so dealt with.
I want to take, as an example of that, what was done in Nottingham with the cases of kerb-crawling. Proceedings under Section 32 of the Sexual Offences Act were brought successfully in three cases. In fact, in those cases the majority of the women who were solicited by the kerb-crawler were prostitutes, though I do not think that matters—they are entitled to protection against the kerb-crawler just like any other woman. The prosecution was successful. The police have had no complaints about respectable women being pestered in this way, and the kerb-crawling appears to have been successfully deterred so far as Nottingham is concerned. In Birmingham, Liverpool and Manchester, kerb-crawlers 807 have been successfully prosecuted, and in London proceedings are brought for insulting words or behaviour; unfortunately, I cannot give your Lordships the figures, because they are not distinguished from the other cases under the same section; but your Lordships may take it that it is put into operation. That is dealing with at any rate two of the main matters that are complained about with regard to men.
But if one goes on to consider the matter, I think it is very important that we should face up to this complaint—and I want your Lordships to know that I have faced up to it—that the use of the term "common prostitute" unfairly discriminates against women as opposed to men. I ask your Lordships to consider it and to come to the view that the argument is not well founded. There can be discrimination only if that which is in fact the same is treated differently according to whether it is done by a woman or a man. My case is that the male offences are different in some degree, which I will point out, but that all the male offences are subject to punishment. If I can show that, I think that the substance of the argument on discrimination goes; and one then has to consider, as I shall in a moment, whether the procedure is fair. I hope your Lordships will agree with me that the men who are mentioned in this connection fall into two categories; the first, those who at present do not commit offences, and into that category fall the prostitutes' customers. Despite the Amendment on the Paper I do not think that it is possible to constitute an offence, short of the immoral act itself, which it would be very difficult to prove, with which those men could be charged. It cannot be made an offence merely to meet a woman quietly in the street and go off with her.
I come to the second category, the men who commit the corresponding male offences to those of the prostitute. The nearest in kind is the offence of the male prostitute who offers himself for homosexual practices for money. His offence is different and much more serious, and of course can be punished more severely, because he is soliciting the commission of a criminal offence and the female prostitute is not. There is no 808 question that a male prostitute cannot be punished, either under the provision I have mentioned for soliciting and importuning, or, of course, in a serious case, for inciting the commission of the offence of sodomy or gross indecency or any of the other homosexual offences. I am saying that only in order to be exact; I hope the most reverend Primate will not think that this is a debating point; it is not intended to be. The corresponding offence is one which is dealt with by heavy penalties of the law.
I come to the next one, which I have already mentioned, the man who accosts respectable women. He is not creating a public scandal. Nevertheless, he can either be prosecuted, as I have said, for using insulting words and the like, or if he goes beyond that—and some of your Lordships I think on the Second Reading mentioned that that is possible—and is putting the woman in fear, as sometimes happens, he can be more seriously dealt with. Certain of your Lordships have mentioned the pimp who solicits on behalf of a prostitute in the street. He comes within the ambit of the provisions that are aimed at those who organise the prostitution of others. That again is a different and more serious offence for which he can be more heavily punished than the prostitute. I may have some blind spot, but I have tried to go into anything which can be said to correspond generally with this matter. In all those cases the man is answerable to the law, but in none of those cases does he cause the public scandal and nuisance by congregation with which this Bill is dealing.
§ 4.30 p.m.
§ THE EARL OF SWINTON
May I interrupt the noble and learned Viscount, because he said something that has been troubling me all through. He said that nowhere is the man committing the offence or the nuisance of congregation with which this Bill is intended to deal. I can find nothing about that. If we were really concerned only with the mischief of congregation by these people in large numbers, certainly it would have to be dealt with. But as I read the Bill, any woman in any place who is not in the least a nuisance to anybody and is not doing, as is admitted, a criminal act, and is perhaps the easiest person to find and warn, is liable under the Bill. I 809 wish that the noble and learned Viscount would emphasise whether the mischief of congregation is to be dealt with by administration or by some phrase in this Bill, to show us that it is dealing with the evil of congregation.
§ THE LORD CHANCELLOR
I certainly will do that. I welcome any questions. I ask my noble friend to he patient. I cannot deal with every point at one time, but I will certainly come to that point because it is the kernel of my case. This is the difficulty which I put to my noble friend, and from his legal experience he will see it. Here the mischief, the scandal, the nuisance, is the congregation of a large number of these women; but the remedy is individual action against one woman. It is the harmonising of these two things which is the problem which we have to solve, or else confess ourselves impotent in the face of London's being the dirtiest city in the world, and decent people in London unable to lead a comfortable life. My noble friend has put his finger exactly on the problem, and I should be most happy to deal with it. I hope your Lordships will forgive me if I take a little more time to do so, but I will do it. I am most anxious to put the difficulties and our point to the most reverend Primate.
I should like now to come to the point of the use of the words "common prostitute". I think the major difficulty and the mistake under which some of your Lordships have been labouring is, first of all, that some of you have said that the woman will come into court with a label round her neck; and then your Lordships have gone on to say that a woman known to be a common prostitute will not get a fair trial on the question whether she is soliciting on a particular occasion. I think that that fairly summarises the case on this point. On the first of these points, may I say that the woman will be no more labelled than any other person against whom an allegation is made in a criminal charge.
My noble and learned friend Lord Denning, as he was bound to do in putting a candid argument before your Lordships, took the analogous case which I mentioned to the noble Viscount, Lord Samuel, of the suspected person loitering with intent to commit a felony. As I said to the noble 810 Viscount, there you can prove the charge by giving evidence of previous convictions. You can also prove it by calling a policeman to say what the man has done and that he has watched him before and suspected him. Equally, in regard to this part of the case, the policeman who brings the charge has first to prove that the woman in question was a common prostitute. That is a matter that he has to prove, and it is part of the offence. The offence is that a common prostitute loiters or solicits for the purpose of prostitution. He has to prove that just as much as any other part, and, if your Lordships come to think of it, it is really that you are stating what you have to prove as the nature of the charge.
If you say that A murders B, you are not hanging a label round A's neck that he is a murderer; you are saying that that is the charge against him. Here, the first part of the charge is that the woman is a common prostitute because it is common prostitutes who are causing the scandal, the nuisance and the discomfort to life which it is the object of this Bill to remove. I say that that is part of the charge, and I have given your Lordships an example of where a similar charge has been made. The second point that he has to prove is that on a particular occasion the woman was loitering for the purpose of prostitution. That the court has to decide. They have not to decide what is suggested in one of the Amendments put forward by my noble and learned friend Lord Denning; they have not to decide that it is likely that she is a common prostitute; under the Bill they have to decide—and it must be proved beyond reasonable doubt—that she is a common prostitute. It has to be proved beyond reasonable doubt that she is loitering or soliciting for the purpose of prostitution. The police have to prove both those points. The court has to consider them judicially, and I can see no ground for this being beyond the capacity of magistrates. They are accustomed to applying their minds judicially to questions of fact; they will be aware of the difficulties.
Your Lordships have suggested—I do not make any objection to your Lordships having so suggested—that there might be the case of the woman who has given up prostitution. Of course the magistrate will take that into account. The 811 other case that your Lordships have mentioned was that of the common prostitute who on this occasion was on an innocent errand. Again, the magistrate will weigh that point and consider carefully the evidence, and, I should have thought, will be particularly careful in considering the defence put forward.
That is the position. I counter most emphatically that that is unfair. I say to your Lordships that the first point upon which your Lordships have to make up your minds is whether you think this scandal is something that must be dealt with. It is an age-long argument at what point your Lordships think that compulsion can properly be used. If one looks back to the days of the great Lord Shaftesbury, 120 years ago, one finds that the serious opponents of Lord Shaftesbury were not evil men; they were not men who wanted to hurt children by making them work in the mines under 10 years of age. The real, serious opponents of Lord Shaftesbury were good men like J. S. Mill, who believed that you were infringing the field of moral choice if you applied compulsion to prevent children under 10 years of age from working in the mines. It is the conflict of good motives against which I must respectfully warn your Lordships. It is not a mere cliche; it is one of the difficulties of life, the best being the enemy of the good. Here you have a terrible scandal—a gross infringement of the ordinary decent living of London citizens—and it is caused by congregation of large numbers of prostitutes coming around various areas. It is caused by common prostitutes loitering and soliciting—and that is the offence which we state.
It is a rare matter for me to disagree with my noble and learned friend Lord Denning, but there is one point on which I must respectfully disagree. I believe that this Amendment would cause an additional risk to the respectable women. It is a fact that on rare occasions—because one has to consider the number of occasions against 16,000 convictions a year or thereabouts of 1,800 women—that the police have made mistakes. The police make mistakes, as all of us do, and they have made mistakes; but they have been very rare. One of the reasons which makes it more difficult for the policeman to make a mistake here is that he has to believe, 812 and believe on reasonable grounds, and must be prepared to prove, that the woman is a common prostitute. That is something which makes him think before he takes the chance of making a mistake. If there were the words "any person" I do not think that that protection for the ordinary respectable woman would remain. It would be a mitigation through the caution procedure, but the danger would still be there.
I come now to the point which my noble friend Lord Swinton has raised. I am sure he has in mind the other Amendments, Nos. 2 and 3, which make annoyance in some form or other a constituent of the offence. The noble Lord, Lord Silkin, suggested that we might range a little wide, and I feel it is important to consider those Amendments at this stage because they come right on to the point that has troubled my noble friend. Once we introduce nuisance or annoyance two things emerge. Either we must show the nuisance or annoyance to some particular person, or else, as the Amendment of the noble Lord, Lord Grantchester, would do, we must show annoyance to inhabitants, residents or what have you. But once we introduce that—and I am sure my noble friend will follow my difficulties in this—since the prostitute is charged with loitering or soliciting on a particular occasion it will be necessary, in order to secure a conviction to show that it was the woman and her loitering and soliciting which caused the nuisance.
§ THE LORD CHANCELLOR
Could I pursue the point? That is the stem. I believe I now come to the point that my noble friend has in mind. If an Amendment is not to defeat the object of the Bill the test must be so framed that the present law is altered in a way which recognises (and this is another possible approach) that most often the real nuisance is not the act in isolation but the habitual presence of prostitutes in an area. If I may put it in another way, which I believe my noble friend will appreciate, it would have to be proved that that prostitute contributed to a nuisance which was caused by a 813 great many others. In other words, in each case, when dealing with a specific woman, nuisance would have to be proved, whether it was continued, whether there had been shifts in the movements of London's immoral population, and all other points. None of the Amendments on the Paper would achieve that of course. I believe that the Amendment of my noble and learned friend Lord Denning would add the words, "in such manner as to be likely to cause annoyance". But as my noble friend, who has drafted so many Statutes, will see at once, that immediately implies that there is another manner—a discreet manner which does not cause annoyance. If that is put into an Act of Parliament the other thing is immediately inferred. I am merely showing the difficulties that arise.
One comes to this consideration: that the only way in which we can deal with this specific point is by dealing with the individual prostitute, and though I do not want to go through too many of these Amendments in advance your Lordships will see from them the inevitable difficulty which arises. If I might anticipate and take the Amendment of the noble Lord, Lord Granchester (I do not know whether my noble friend has it in mind) your Lordships will see that it says:(a) to the annoyance of the inhabitants, occupiers of non-residential premises or passengers; orThat does tackle the problem.
§ THE EARL OF SWINTON
Yes; and the problem we have to meet, as the noble and learned Viscount says, is the problem of the scandal of our streets: it is the heart of the problem.
§ THE LORD CHANCELLOR
Yes, it is the heart of the problem and I want to show what arises. The noble Lord, Lord Grantchester, has tried to deal with it directly, because he has recognised that. Paragraph (a) of his Amendment requires proof of the annoyance of the inhabitants—that is the inhabitants generally. It is not covered by the Interpretation Act, as I believe my noble and learned friend Lord Denning would agree, by reading the singular for the plural, because that would apply to only one inhabitant. But even if we read it (and here may I suggest a possible improvement to the 814 Amendment?) with the addition of the words "or any of them", it still suffers from the defect that the act charged must be shown by itself to have caused the annoyance. It ignores the facts of life.
When we come to paragraph (b) of the noble Lord's Amendment (and again I am taking the Amendment as improved), the word "constitute" would not take us any further. Construing that as "cause or contribute to" we should be left with the point that on any prosecution of any particular prostitute the prosecutor would have to come armed with evidence to satisfy the court of the existence of the nuisance over a period, and caused—and this is an important aspect—by the acts of others other than the person in the dock. That would be a most cumbrous and difficult procedure to put into operation. Yet that is the only procedure—and I am putting all the improvements that could be made to the Amendment of the noble Lord, Lord Grantchester—which is the alternative to this.
I want in fairness to those who have been responsible for the Bill just to say one word about this need for proving annoyance. My noble friend Lord Swinton will remember the Macmillan Committee on Street Offences. I cannot remember whether the noble Earl was a member of the Government who set it up, but it was set up at a time when he was a member of the Government or between times when he was a Minister of the Crown. The Macmillan Committee said in paragraph 35 of their Report:To enact that there should be no conviction unless the person alleged to have been annoyed gives evidence and proves personal annoyance would be to enact a dead letter, for we have to recognise it as an irrefutable fact that in general persons accosted will not attend the court and give evidence, no doubt for the reason that they do not wish to be mixed up in such unpleasant cases.I appointed the Wolfenden Committee to have the matter reconsidered and brought up to date. In paragraph 252 of their Report the Wolfenden Committee state:…like the Street Offences Committee, we recognise it as an irrefutable fact that in general persons accosted will not attend the courts to give evidence. Consequently, to enact that there should be no conviction unless 815 the person alleged to have been annoyed gave evidence and proved personal annoyance would be to enact a dead letter.But the Committee went further. They dealt with this specific point which we are now considering. They dealt with a point which has been suggested by the Church of England Moral Welfare Council—namely, that we might get people to give evidence as to general annoyance; that is, the residents or the other persons mentioned by the noble Lord, Lord Grantchester. The Wolfenden Committee said in paragraph 255 of their Report:The proposition that to require the person alleged to have been annoyed to give evidence would be to enact a dead letter applies to the person"—and I think this is important to my noble friend Lord Swinton—annoyed by the loitering of prostitutes no less than to the person annoyed by an act of importuning. It probably applies even more, since it is unlikely that a resident in a neighbourhood where annoyance is caused by the loitering of prostitutes would be prepared to go to the courts day after day to establish the fact that he was annoyed. Indeed it seems to us unreasonable that he should be required to do so. In our view both loitering and importuning for the purpose of prostitution are so self-evidently public nuisances that the law ought to deal with them, as it deals with other self-evident public nuisances, without calling on individual citizens to establish the fact that they were annoyed.That is the view of the latest Committee. It is a view I share; and although they have not taken it, it seems to me very difficult for the Church of England Moral Welfare Council not to consider it, because they point out in the pamphlet on the Bill that the whole point of the nuisance condition is to allow prosecutions in cases where, although the nuisance is genuine, it is inherently difficult or impossible to find aggrieved persons. That is the position of the Church of England Moral Welfare Council. The same position is taken by the Macmillan Committee, and taken twice by the Wolfenden Committee. It is in these circumstances that we bring forward this Bill. It recognises that the only way of dealing with the problem is by dealing with the individual constituent of the congregation of nuisance; that is, by saying who does it. Of course we know who does it; it is the common prostitute who causes this nuisance and scandal. 816 Therefore, the Bill requires proof that the woman is a common prostitute and the specific act that she has loitered or solicited on the occasion in question.
I am sorry to have detained the Committee so long, but the Committee will realise that this is no new problem to me. I have had the honour of presiding over this House for nearly five years, and I was Home Secretary for three years before that, and it was very early in my time as Home Secretary that this problem was brought to my attention. I say to my right reverend friend the Lord Bishop of Norwich that I have never dealt with this matter as a Party problem or as a problem that is one of my Government. It was done in consequence of deputations that included members of the Party opposite as well as of my own Party. It was an answer to a terrible problem of the day. I ask the Committee, before they pass this Amendment, making the Bill before them unworkable, to think long of the troubles, anxieties and discomfort of their fellow citizens.
§ 4.58 p.m.
§ LORD SILKIN
I am sure the Committee will be grateful to the noble and learned Viscount the Lord Chancellor for the full statement he has made on the objections of the Government to this Amendment. In his concluding remarks he said that this was not a Party question, and I should like to assure him that certainly on this Amendment, as on all of the Amendments, we are not dealing with the Bill on Party lines. Indeed, I want to say straight away that on this side we are divided on a good many of the Amendments which are before the Committee. Let me say also that I agree with the noble and learned Viscount on the reasons which have dictated the introduction of the Bill. We accept entirely that the situation in certain parts of London and other big cities is scandalous and should be improved and that that is the reason for the introduction of this measure. Where we part company, however, is in attributing the whole of this difficulty to female prostitutes. Some of us take the view—I hope the majority—that the problem certainly of the central parts of London is the congregation of undesirable men and women of all kinds for the purpose of prostitution; and it is because we feel 817 that this Bill loads the dice unfairly against one section of those who are committing the nuisance that we feel the Amendment is necessary.
Let me now clear the Committee's mind on one other point. This Amendment has been argued on a number of grounds: first that the term "common prostitute" is itself undesirable because it connotes the offence with which the woman is charged and it seems to assume she is guilty before it has been so proved; and nothing the noble and learned Viscount has said has disabused my mind of that. It is unfair and, even if it were contained in other legislation, I should still say it is unfair to say, "You, being a common prostitute, are being charged, not with being a common prostitute but with loitering and with soliciting ". Another point is that we feel that men and women should be treated in exactly the same way if they are committing the same offence.
However, there is a third point that has been raised, and I hope the Committee will not be confused on it: that is, that the so-called customer (I use the word with all respect to the most reverend Primate) should be treated in the same way. I personally do not accept that, and I think the noble and learned Viscount the Lord Chancellor made his case on that point. In any event, I hope the Committee will not be confused, because it is not essential, for the purpose of this Amendment, that we should accept the position that men who accept the invitation of prostitutes should also be prosecuted. That is an additional point altogether, and we may or may not agree about it; but the Amendment is still good without it.
I think that the most powerful point that the noble and learned Viscount the Lord Chancellor made was that the male person who commits this offence of soliciting and loitering is dealt with under Section 32 of the Sexual Offences Act, 1956. I have taken the opportunity to refresh my memory about Section 32, and I hope that the noble and learned Viscount the Lord Chancellor will agree with me, when I come to read out Section 32 and to compare it with this Bill, that they are not really identical, and that the male is not being treated in the same way as the female. Section 32 818 of the Sexual Offences Act, 1956, provides:It is an offence for a man persistently to solicit or importune in a public place for immoral purposes".Now that goes near to the offence which is contained in the present Bill, but it does not go all the way, because Section 32 of the 1956 Act does not deal with loitering. It does not say "an offence to loiter, solicit or importune": loitering is not referred to in that section. Moreover, it refers to a public place," but it does not refer to "a street or public place," as is contained in this Bill. In the Bill, a street is defined in Clause 1, subsection (4), and the Committee will see that it is defined as " any bridge, road, lane, footway, et cetera"—in fact, it is a very wide term. The term "street" is greatly widened. So that at any rate in those two respects, both as to the definition of the offence itself—it can be a constituent of the offence, in the case of this Bill, that the person is loitering, whereas under Section 32 of the 1956 Act loitering is not an offence—and on the definition of "street", the common prostitute is dealt with in a much wider way than the person committing an offence under Section 32. If the noble and learned Viscount the Lord Chancellor wanted to put the two on a par, it would be necessary to amend Section 32 of the 1956 Act to make it identical in terms with Clause 1 (1) of the present Bill. Of course, if he were prepared to do that, he would be doing exactly what this Amendment asks him to do—-namely, to substitute "any person" for "common prostitute".
So I think that, in spite of a good deal of what the noble and learned Viscount has said with which I would personally agree and with which most of us agree, I do not think he has made the case against this Amendment. The case for the Amendment has been made in such strong and, it seems to me, unanswerable terms that I do not think it needs any further speeches from me or from anybody else, and I hope that the Committee will see its way clear to accepting this Amendment.
§ 5.5 p.m.
§ BARONESS WOOTTON OF ABINGER
I must confess that I find it very difficult to understand the subtle position which 819 the noble and learned Viscount the Lord Chancellor has taken up. First of all, he quotes with approbation the Report of the Wolfenden Committee as saying that the nuisance of solicitation is self-evident. If that is so, on what grounds is it necessary to label the common prostitute as a person who commits this nuisance? If the nuisance is so self-evident, it must be so apparent that any person who is taking part in it is liable, or should be liable, to be charged. Secondly, the noble and learned Viscount lays down as a principle—a principle with which I am sure we should all have the utmost sympathy—that the measure should not go beyond the mischief at which it is aimed. He then goes on to say that the mischief at which this particular measure is aimed is the congregation of prostitutes soliciting in the streets: and he has said—and we are all of one mind on this—that this is not a measure designed to do away with prostitution. Nevertheless, the noble and learned Viscount resists Amendments such as that to be moved later by the noble Lord, Lord Grantchester, which would have the effect of restricting this measure to those occasions on which an individual prostitute does contribute to the congregation; and he was at pains to show that it might make proof very difficult if it had to be shown that the congregation in a street had increased or diminished, and that a particular woman was concerned in a general nuisance.
§ THE LORD CHANCELLOR
May I ask the noble Lady one thing, because I am very anxious to get this clear? Do I take it that, in supporting this Amendment, the noble Lady is saying that a casual act of prostitution is now to be an offence? Because that is the result of this Amendment if the House passes it.
§ BARONESS WOOTTON OF ABINGER
I am supporting this Amendment in the terms in which it is upon the paper.
§ THE LORD CHANCELLOR
That is, the noble Lady is prepared that a woman who commits one casual act of prostitution should be convicted and fined? If the noble Lady says so, then all your Lordships know exactly what is the division of opinion before you: because those 820 who think like me are not attempting to strike at the casual act, but at the regular person.
§ BARONESS WOOTTON OF ABINGER
The Amendment as framed, as I understand it, will make it an offence for any person to loiter or solicit in a street—not to perform an act of prostitution, but to loiter or solicit for the purposes of prostitution. There are subsequent Amendments which, if passed, I think might safeguard the position that the noble and learned Viscount the Lord Chancellor has in mind. I would just mention, in passing, that even if it is a casual, single solicitation, after all, there is nothing very unusual in this. I cannot think of any article which it is legitimate to hawk for sale in the streets and with regard to which there is not some kind of legislative restriction. There is a very extensive body of legislation which refers to street trading, and that is applicable even in an individual instance. I am not afraid of this making this Bill apply to a particular instance of solicitation.
A good deal has been said this afternoon about protecting respectable women, and I hope I shall not be thought to be laying claim, possibly, to any disputable title in what I am about to say. I think the members of my sex greatly appreciate the concern which has been shown by those who oppose the Amendment for the safety of respectable women; but I would point out that this concern is not altogether shared by the most respectable womens' organisations in the country, which have been singularly of one mind in expressing their alarm at the Bill in its unamended form. I hope that the noble and learned Viscount will correct me if I am wrong in calling attention to the fact that in Scotland the need to prove annoyance, which is the main protection of the respectable woman if we remove the term "common prostitute", does not operate. It may be that the distinction between the respectable and the not-respectable woman is much more apparent north of the Border. That I am not in a position to judge. But I think that even south of the Border we should be prepared to take this risk, and the voices of the women's organisations surely confirm that view.
As to the use of the term "common prostitute", there is no statutory definition. Surely we are getting into a curious 821 position when, without a statutory definition—and our Statutes are full to bursting with definitions—this particular class of persons is to be alone in liability to this type of charge. The noble and learned Viscount quite properly says that being a common prostitute is a fact which must be proved in court, like other facts, if challenged. But I ask myself: in what is this proof going to consist? A common prostitute is a person who commonly offers her body for lewdness, and I hesitate to visualise the kind of evidence that it would be necessary to give to establish that fact in court, unless we are to accept the proof of previous convictions and the proof even, perhaps, of the cautions which are contemplated in a later stage of the Bill. As has been repeatedly pointed out, to accept that kind of evidence is contrary to the basic principles of English justice, and to accept any other kind of proof seems to me to be contrary to the principles of decency.
The noble and learned Viscount has quoted what he regards as the parallel case of a suspected person. I would only say that there surely must be other magistrates in the Committee besides myself who would regard that as an extremely unhappy parallel. Far from admitting this, many of us would be only too thankful to be rid of it. In point of fact, in a suspected person case, the type of proof that is nearly always given is based on the particular case of the charge, and normally the police evidence is that the person was seen more than once interfering with the handles of cars. From this they infer that his conduct was suspicious, and from that point on they are able to lay the charge that he was loitering to commit a felony. In the case of the prostitute no similar type of evidence would be valid, for a common prostitute must be a person who commonly (the term refers to temporal frequency and not to her social standing) offers her body for lewdness. Therefore, it must be necessary to show that she has been engaged in this practice over some substantial period of time.
On all these grounds, it seems to me that we are here trying to re-establish a thoroughly archaic attitude both to offences by women and to similar offences by men, though I have not referred to 822 the latter. The fact that the term "common prostitute" has been in the law since about 1824 is surely not an unmitigated tribute, even in this Committee, in its favour. I should have thought that this was a case in which we could weed out one of the very few remaining blots in our law, in which a particular class of person is prejudiced as to character before ever a charge can be made.
§ 5.15 p.m.
§ LORD GRANTCHESTER
I think that some unsatisfactory things are being said, and if I understood the noble and learned Viscount the Lord Chancellor correctly he said one of these unsatisfactory things when he referred to London as being the dirtiest city in the world. I do not agree with the things that are being said about London. And in this Bill we are dealing not with morals at all but with nuisances.
The noble and learned Viscount's case is that there are other Acts under which men, who might be included in the Bill if this Amendment were carried, can be dealt with. I do not admit that the charges are parallel; but even if they are, what objection is there to an alternative under this Bill for an offence similar to that committed by a woman? The other Acts to which the noble and learned Viscount referred, for various reasons, have not proved very effective, at any rate in matters dealt with under this Bill. I think that there is a justification for removing the term "common prostitute," apart from the possible application of "any person" to a man as well as to a woman.
The noble and learned Viscount says that the term "common prostitute" is not a label; it is a charge which is brought and has to be proved. But if it is accepted and proved, it becomes a label before any charge under this Bill is heard. In that sense the label becomes a stigma. The noble and learned Viscount pleads the Wolfenden Report. I think that it is only necessary to point out that in any event that Report has been followed only in part.
What we are trying to deal with is a nuisance, but a nuisance is never mentioned in the Bill. As we are dealing with the first four Amendments, I should like to come back to the fact that we are trying to deal with a nuisance and 823 not with morals. I would argue that this nuisance extends beyond annoyance to any one individual, and so in Amendment No. 4 I have endeavoured to extend the right to complain to occupiers of non-residential premises, among others. I think that in many streets in areas where this nuisance is most prevalent to-day it is not difficult to get occupiers of non-residential premises to come forward and give evidence about the annoyance that is caused by the congregation of women in some of these streets. In fact, I know of those who have been only too anxious to be asked to do so. I suggest that evidence on this matter can be brought in by the police, together with officials of the local authority, and I think that it would be easy, with the evidence of the officials of the local authority supporting the evidence of the police, to establish an evident nuisance under paragraph (b) of my Amendment, which I want to introduce if the Amendment which we are considering now is carried.
This matter is of great concern. As President of the Society for Individual Freedom I have had a great number of representations made to me that here we are introducing a measure which is in violation of principles which are very much enshrined in the law of this country. I should like to repeat what the right reverend Prelate the Lord Bishop of Norwich said: that if we are to have a measure dealing with this serious matter, we should try to get agreement about it. It is significant that the Moral Welfare Council of the Churches and the National Council of Women have made strong representations in objection to this Bill. I ask why those objections should be ignored, and I hope that the Committee will carry this Amendment.
§ LORD DOUGLAS OF BARLOCH
The noble and learned Viscount the Lord Chancellor has certainly made some destructive criticisms of the Amendment which is now before the Committee, but he has not destroyed something that underlies this Amendment and about which many people, both men and women, feel strongly—namely, that this legislation would appear to create a discrimination between men and women. It is perfectly true that there is some legislation 824 which can be referred to which, to a certain extent, is parallel in respect of offences committed by men, though it is not by any means identical. This is a criticism to which the Government must pay some attention, because the tendency more and more is that legislation should affect both sexes in identical fashion. However, I am not going to pursue that matter further.
I want to come back to the point raised by the noble Earl, Lord Swinton, which, with all respect, the Lord Chancellor has not answered. He has said that the object of this Bill is to prevent a public scandal of congregation of prostitutes in certain areas. I accept that that is a proper purpose, and that it needs to be dealt with. Nevertheless, it is true that the Bill does not define any offence of that nature. It is true that it provides a means of remedying that state of affairs by the exercise of administrative discretion; that is to say, the prosecutions under this Bill, if it becomes an Act of Parliament, will be effected in places where this occurs. But an identical act in some other place where there are not congregations of people committing the offence will presumably not be dealt with at all.
Therefore, it resolves itself down to this: that the Bill is creating a means by which, under discriminatory or administrative action, the evil to which the Lord Chancellor has referred can be corrected. That, I think, is the essence of the position. I do not dispute that the machinery for doing so is effective; I think it is. But I would ask why this purpose cannot be effected by the passage of legislation parallel to that contained in Section 32 of the Sexual Offences Act, which makes it an offence persistently to importune in a public place. It is that which causes the scandal and the nuisance which is generally complained of in certain parts of London—but not, I would add, in all parts of London. I agree with the noble Lord, Lord Grantchester, that things have been said to-day which are calculated to convey the impression that this state of affairs is prevalent throughout the whole of the Metropolis. That is not true. It is confined to certain areas which are quite well known and notorious.
825 If it is true, as we are told, that the number of habitual prostitutes is comparatively small, and that they persist in doing this day after day, and week after week, then it seems to me that what is required is to apply the language of the Sexual Offences Act, of "persistently importuning in a public place". The trouble is not created by people who occasionally, once in a year, or once in a lifetime, do it, but by people who persistently do it in these places. That is the cause of the trouble, and surely that is the way in which the law ought to remedy it.
§ THE LORD CHANCELLOR
The noble Lord, Lord Douglas of Barloch, has asked me a specific question as to why we do not simply apply Section 32 of the Sexual Offences Act. That section, of course, applies to a male person at the moment, and as I told your Lordships it is subject to penalties of (I am speaking from memory here) six months on summary conviction and two years on indictment. That is because of the distinction between the position of men and women —what might be termed by some people discrimination against men, in that the sexual acts between men are a criminal offence, and, of course, persistently soliciting or importuning with that purpose is incitement to a criminal offence.
§ LORD DOUGLAS OF BARLOCH
If the noble and learned Viscount will allow me to say so, I was discussing the nature of the offence and not the penalty. I accept the view that for the purpose of this Bill. the penalty would be excessive.
§ THE LORD CHANCELLOR
I was only pointing out—and I hope the noble Lord will think it a reasonable matter—that that was an offence created to deal with something which was in the path towards a serious criminal offence. Prostitution, as everyone who has spoken has said, is not a criminal offence. That is the difference. But I am sure that the noble Lord, Lord Douglas of Bar-loch, has appreciated the difference between that offence with which he is dealing and the Amendment which is now before the Committee. It is—and I suppose that is why it recommends itself to the noble Lord—that of "persistently" soliciting. What we are asked to pass to-day is that one action, by a girl, or by a man, I agree, but not persistently 826 at all, is to be a criminal offence. The movers of this Amendment are asking your Lordships to make that a criminal offence, and when I challenged the noble Baroness, Lady Wootton of Abinger, she accepted that as being within the purview of her speech on this Amendment. I ask your Lordships to pause before you make that a criminal offence.
THE LORD ARCHBISHOP OF CANTERBURY
May I ask for an explanation? It is only a criminal offence if it creates a nuisance. Is that not so?
THE LORD ARCHBISHOP OF CANTERBURY
A great many of us are assuming that one of the subsequent Amendments will introduce annoyance and nuisance. In that case, surely one act of soliciting, if it creates a nuisance, ought to be an offence.
§ THE LORD CHANCELLOR
The most reverend Primate is asking your Lordships to go on a most dangerous course. He is asking you to pass an Amendment which, if it stands alone— I put that in creates the criminal offence I have just stated.
§ LORD PETHICK-LAWRENCE
With all due respect to the noble and learned Viscount, if I may say so I do not think he is being very fair. The Rules of Order in this House are such that one Amendment is put at a time. Nobody is likely to support this Amendment or intends it to be carried in vacuo without an Amendment later on which will clarify the general provision. I do not think the Lord Chancellor is entitled to assume the contrary.
§ THE LORD CHANCELLOR
I am certainly not conscious of being unfair, and if the noble Lord will follow me I think he will see that I am not. If we pass this Amendment we do what I said, and nobody can dispute that. We create a new offence making one casual act of solicitation by a girl a criminal offence. That is the position if your Lordships accept this Amendment. You then have to choose whether you will have the Bill as it stands, or whether you will take the Amendment of the noble Lord, Lord Stonhan, and the 827 noble Baroness, Lady Wootton of Abinger, which says:Leave out ('the purpose of prostitution') and insert ('any libidinous purpose to the annoyance of any person or persons:…".That is an Amendment which leaves out the mercenary element and substitutes the libidinous element. In fairness to many prostitutes, I doubt whether there are any libidinous elements when plying their trade. Their element is largely mercenary. I am sorry for them. I am not saying that in any sentimental way, but that is the truth —that is the trade they ply. That is your second choice. If you adopt that Amendment you are flying in the face of the Macmillan Committee and the Wolfenden Committee in two places, because you are reintroducing the fact that there must be annoyance of any person or persons, and you are insisting —flatly contradictory to what was said by Macmillan and Wolfenden—that you must have two persons agreeing to give evidence. The whole burden of their song was: it is unfair to call on people to give evidence. That is a matter you ought to deal with here.
The next choice you have is the Amendment of my noble and learned friend Lord Denning which seeks to insert:offering his or her body for lewdness in such a manner as to be likely to cause a nuisance or annoyance to any other person or persons.That has the two errors. First, it omits the mercenary element—and, after all, one must look at the facts; these women do it for their trade—and it brings in annoyance, again contrary to both Macmillan and Wolfenden. We have finally the fourth choice, the Amendment of the noble Lord, Lord Grantchester. I have said that in my view, for what it is worth, that Amendment came nearest to dealing with the real question, because the noble Lord has clearly considered that the nuisance is constituted by a congregation. He has had that in mind. The difficulty, apart from the drafting points, is that you are on the horns of a dilemma: you either have to prove that that individual prostitute's action caused the nuisance—which it certainly did not alone—or, on the other horn of the dilemma, you have to give evidence when you prosecute any one 828 individual of the extent and place of the nuisance. The noble Lord, Lord Grantchester, made certain suggestions, but I think that on reflection your Lordships will agree that that is an enormously complicated and cumbrous sledgehammer for dealing with this matter.
I hope the noble Lord, Lord Pethick-Lawrence, whose opinion I value very much, if he will allow me to say so, will not think that I am being unfair. At the moment we are passing this Amendment and adding these words to the Bill as it stands. We have before us three opportunities of amending the Bill, all of them in my view, for what it is worth, unworkable and wrong. I suggest that to put this Amendment into the Bill in that form would not be a right thing to do. I am not going to suggest that whatever the Committee does, there should be no Report stage of this Bill. I think there clearly ought to be, and I think the noble Lord, Lord Silkin, would agree. Whether Amendments are made or not is nothing to the point. This is a case in which the House feels strongly, and there ought to be a Report stage. If, as I have shown, the Amendments are defective as well as being controversial, the obvious thing is not to press this but to put it down on the Report stage in a way which your Lordships think is the best method of dealing with the problem. I am not going to put anything into the mouth of the noble Lord, Lord Silkin, but I think we found, when we had considered the Bill he mentioned, in Committee, better methods of dealing with some of the problems on Report. All I am saying is that nothing will excuse this House for making the Bill ridiculous by passing this Amendment at the present time, and making it an offence for a girl to commit one act of solicitation.
§ LORD GRANTCHESTER
May I ask the noble and learned Viscount whether my Amendment, re-worded in a way which will satisfy him, and accompanied by the Amendment now before the Committee, would meet the situation? If he would assure us of that, I should be more happy.
§ THE LORD CHANCELLOR
No Minister can ever give an assurance that a defective Amendment can be made satisfactory. What I always do, and am 829 always ready to do, is to say that I will look carefully at a further and better effort. The noble Lord, Lord Grantchester, will not take me amiss. I have pointed out where the Amendment is defective. If he puts it forward in another form I will look at it. I said quite frankly that I thought he had got nearer the nub of the problem than anyone else, but, if I may say so, he has not yet got the solution.
§ LORD GRANTCHESTER
I want the noble and learned Viscount to do more than look at it. I want help to see if it can be made right.
§ LORD FERRIER
When the most reverend Primate was speaking he quoted the numbers of speeches made in a previous debate as being indicative of the feelings of the House on that occasion. My recollection—and I shall be corrected if I am wrong—was that the House as a whole was opposed to the greater number of speakers. It is for that reason that I rise. I oppose this Amendment stoutly for two reasons. One is that when I am in London I reside in Mayfair, and consequently must have a view of what goes on there. Further, I have daughters, not unattractive people, one of whom is working in London. Despite what has been said by those in favour of the Amendment, I feel most strongly that in the interests of the ordinary decent girl the wording of the Bill as drafted is correct. There is little that I can add to what the noble and learned Viscount the Lord Chancellor has already said, except to make this one point, feeling as I do that what he has said as I see it, uncontrovertible. Speaking as the father of a decent girl, and speaking for the decent girls who wait for their boy friends on the street corner, I would say that the clause as worded seems to me the proper protection for the public in this very difficult problem.
§ LORD DENNING
May I say that I have listened to all that the noble and learned Viscount has said, and I remain quite unconvinced. Here is, it is agreed, 830 a grave nuisance which ought to be suppressed, and everyone agrees that the Bill should do it. The objection is to the manner in which it is done. Can it be put right? The first mistake, or the first way in which the Bill goes against principles, is to refer to the "common prostitute", which introduces not only a label when the person is charged but introduces against her proof of previous convictions before she is found guilty. That is contrary to the principles of English law. In the second place there is unfair discrimination between men and women in this way. Although my noble and learned friend referred to Section 32 of the Sexual Offences Act for a man soliciting persistently, that does not deal with loitering, as this Bill does. Loitering includes kerb-crawling. Kerb-crawling is not always, and may often not be, within importuning, and if men and women are to be put on a level in this way for substantially the same matter then the clause ought to include in its opening words the word "person" and not "common prostitute".
The third thing is this. If this nuisance is the congregation of numbers of women, agreed you have to charge one individual. But if the real nuisance is the congregation, you must bring some words into the Bill to show what you are aiming at, so that you do not catch individuals. Just as the case is put in the old books, if a person puts one wheelbarrow in the street it is not a nuisance, but if he puts fifty it is. One woman may not be a nuisance but a congregation may be, and there ought to be some words in the Bill. I suggest that it is not necessary to call residents or every passer-by. If the words were "likely to cause nuisance" I suggest there would not be that inconvenience. At all events, while agreeing in principle with the Bill I suggest that this Amendment is necessary to conform with our ordinary principles of justice in working it out, and I would therefore ask the House to divide.
§ On Question, Whether the said Amendment shall be agreed to?831
§ Their Lordships divided: Contents, 46; Not-Contents, 72.
|Addison, V.||Douglas of Barloch, L.||Ravensdale of Kedleston, Baroness.|
|Ailwyn, L.||Faringdon, L.|
|Amulree, L.||Freyberg, L.||Russell of Liverpool, L.|
|Amwell, L.||Furness, V.||Samuel, V.|
|Astor, V.||Grantchester, L.||Sherwood, L.|
|Attlee, E.||Greenhill, L.||Silkin, L.|
|Balfour of Burleigh, L. [Teller.]||Lawson, L.||Sinha, L.|
|Beauchamp, E.||Lucan, E.||Stansgate, V.|
|Birkett, L.||McNair, L.||Stonham, L. [Teller.]|
|Boothby, L.||Margesson, V.||Taylor, L.|
|Canterbury, L. Abp.||Meston, L.||Terrington, L.|
|Cholmondeley, M.||Milverton, L.||Williams, L.|
|Chorley, L.||Norwich, L. Bp.||Winster, L.|
|Cromwell, L.||Ogmore, L.||Wise, L.|
|Darwen, L.||Pakenham, L.||Wootton of Abinger, Baroness.|
|Denning, L.||Pethick-Lawrence, L.|
|Abinger, L.||Ellenborough, L.||Merthyr, L.|
|Allerton, L.||Elliot of Harwood, Baroness.||Montgomery of Alamein, V.|
|Amherst of Hackney, L.||Ferrier, L.||Morley, E.|
|Atholl, D.||FitzAlan of Derwent, V.||Newall, L.|
|Auckland, L.||Fortescue, E.||Onslow, E. [Teller.]|
|Balfour of Inchrye, L.||Fraser of Lonsdale, L.||Perth, E.|
|Bathurst, E.||Gisborough, L.||Reading, M.|
|Blackford, L.||Glentanar, L.||Robins, L.|
|Boston, L.||Gosford, E.||Rockley, L.|
|Bridgeman, V.||Granville-West, L.||St. Aldwyn, E. [Teller.]|
|Brocket, L.||Grenfell, L.||St. Just, L.|
|Buckinghamshire, E.||Gridley, L.||Salisbury, M.|
|Chesham, L.||Hailsham, V. (L. President.)||Saltoun, L.|
|Colville of Culross, V.||Hampton, L.||Selkirk, E.|
|Conesford, L.||Hawke, L.||Shaftesbury, E.|
|Davidson, V.||Home, E.||Simonds, V.|
|De La Warr, E.||Howe, E.||Strathalmond, L.|
|Digby, L.||Iddesleigh, E.||Swinton, E.|
|Dovercourt, L.||Jessel, L.||Templemore, L.|
|Dudley, E.||Kilmuir, V. (L. Chancellor.)||Tweedsmuir, L.|
|Dundee, E.||Lansdowne, M.||Waleran, L.|
|Dynevor, L.||Lloyd, L.||Westwood, L.|
|Ebbisham, L.||McCorquodale of Newton, L.||Wolverton, L.|
|Ebury, L.||Merrivale, L.||Woolton, E.|
§ Resolved in the negative, and Amendment disagreed to accordingly.
§ 5.56 p.m.
§ LORD STONHAM
In view of the long discussion that we have had, which took in the points raised in my Amendment No. 2, I do not propose to move it.
§ LORD DENNING
We have discussed on the previous Amendment this question of annoyance. I do not think there is any more that I can say upon it now, except, as I suggested before, that it is not really linked up with the matter on which we have divided. It is a case in which behaviour—not necessarily proved by the person annoyed, but even by a policeman, or whoever it may be—such as is likely to cause annoyance, would satisfy the proposed Amendment. 832 In view of the discussion that we have had, I do not think I need say more upon the matter. I beg to move.
Page 1, line 7, leave out ("prostitution") and insert ("offering his or her body for lewdness in such a manner as to be likely to cause a nuisance or annoyance to any other person or persons").—(Lord Denning.)
§ VISCOUNT ASTOR
I regret very much that Lord Stonham did not move his Amendment. I think it is extraordinarily important and vital that we should prevent congregation, scandal and annoyance, yet there is not a word in the Bill dealing with it. One woman standing completely alone in a street, can hardly make herself a nuisance, not saying a word to anybody, yet she can, under 833 this Bill, so far as I can see, be convicted—
§ VISCOUNT ASTOR
Amendment No. 3. It is the question of burden of proof. In Amendment No. 3 there is raised the question of some annoyance and sonic nuisance. I do not see how this Bill really deals with what it is supposed to deal with. may be lucky compared with Lord Howe. I live only 200 to 300 yards away. There are many women who stand around in my part of London. My experience is—I have noticed this particularly since this Bill was introduced—that if you pay no attention to them they pay no attention to you. They never try to stop you or get in your way or do anything; they just stand around. It is largely the fact that the man has only himself to blame if he gets himself talked to. That has been my experience. But if we are really going to try to prevent, as most of us want to do, the congregation of women making themselves a nuisance, acting aggressively, acting annoyingly, it is not dealt with in this Bill. This Bill is going to catch one single woman standing completely alone, and acting as no nuisance to anybody; yet, because she is known to be a prostitute, this Bill will catch her. That I think is wrong, and that is why I hope this Amendment will be pressed.
§ THE LORD CHANCELLOR
I will try to emulate the brevity of my noble and learned friend Lord Denning. I have dealt with sonic of the difficulties that I saw in this Amendment, and I stress the point which I ventured to make earlier: that any Amendment which is not to defeat the object of the Bill must stand the test that it is so framed that the present law is altered in a way which recognises (I have no real need to say this to the noble Viscount, Lord Astor) that the real nuisance is not the act in isolation but the habitual presence of prostitutes.
May I state the difficulties with regard to this Amendment? They are, first, the word "likely," and secondly, the fact that the Amendment says that the charge has to be loitering or soliciting "in such a manner" as to be likely to cause annoyance—and in view of the fact that Amendment No. 5 is in the name of my noble and learned 834 friend that must be deliberate. On a charge of loitering "in such a manner", the nuisance created by the presence of other prostitutes seems to be right out of the picture, and there is the difficulty, which I am sure my noble and learned friend will appreciate, if he has not done so already, that if we say "in such a manner" there is a possibility that the prostitute can loiter so discreetly as to be unlikely to cause annoyance and therefore to entitle her to an acquittal, even if someone is annoyed.
My noble and learned friend Lord Birkett is sitting near to my noble and learned friend Lord Denning, and he will remember that he and I were party to a decision in which I gave the leading judgment, when the House was sitting judicially, where we had to decide whether an accident was likely, although in fact a man had been killed. We decided that it was unlikely, as it was. There is here the difficulty which arose there. It was a decision which the noble and learned Lord and I both felt was right. In fact, I believe he associated himself with my judgment in that case.
There is the other difficulty of the omission of payment, and I find great difficulty in that. I developed the point in an earlier Amendment and I should like my noble and learned friend to consider it. There have been remarks suggesting that if we use "libidinous" or "lustful" and do not bring in payment we are not getting down to the root of the matter—and I say that in no unkind way but merely recognising the fact. For all these reasons I hope that my noble and learned friend will not press the Amendment to-day but will consider the difficulties. I have already said that I think this is a Bill where there ought to be a Report stage whether or not Amendments are made on the Committee stage; and I shall be pleased to consider another effort. I should have thought that that was the most convenient way of dealing with the matter now.
§ LORD PETHICK-LAWRENCE
May I make just one inquiry on what has been said by the noble and learned Viscount? Those of us who have supported this Amendment feel that although the Bill professedly seeks to achieve the purpose which the noble and learned Viscount has outlined, there is nothing in it which 835 confines conviction to an offence for such things. The Bill, and the words used by the noble and learned Viscount in speaking on a previous Amendment"—the gravamen of the charge "—really require that the prostitute is making a nuisance of herself and is creating a scandal. There is nothing in the Bill which limits punishment to people of that kind. The noble and learned Viscount must realise that fact. If he does not like the words of this Amendment, that is not of great importance. What is of importance is that there should be in the clause words which mean that those who are to be punished under this Bill are assisting in creating the nuisance or annoyance. If the noble and learned Viscount means that he will really seriously consider an Amendment of that kind, I personally should be quite willing to see this Amendment withdrawn; but if he cannot hold out any really serious hope of that kind I am afraid I shall support my noble and learned friend in going to a Division on this matter.
§ THE EARL OF SWINTON
I take it that we shall have an opportunity of discussing Amendment No. 4, which seems to me to be much more effective on this point than this particular Amendment. Is that to be moved?
§ THE LORD CHANCELLOR
It is, so far as I know. I find it very difficult to give an undertaking. At this Box I have always been careful not to raise hopes in order to avoid Divisions. All I can promise is consideration, and I do promise that my right honourable friend the Home Secretary, Home Office officials and myself, will consider it. I cannot go further than that and I do not want to avoid a Division by (if I may put it in terms of criminal law) obtaining acquiescence by false pretences. I should not like to do that.
§ LORD PETHICK-LAWRENCE
In those circumstances I am afraid I shall have to advise my noble friend not to withdraw his Amendment.
§ LORD DENNING
In view of what the noble and learned Viscount the Lord Chancellor has said, and in view of the Amendment which is about to be moved by the noble Lord, Lord Grantchester, which raises the same point, I do not propose to divide upon it.
§ LORD PETHICK-LAWRENCE
I am afraid that some of us would like to go to a Division on this Amendment. I hope the noble Lord will not withdraw it.
§ On Question, Amendment negatived.
§ 6.10 p.m.
§ LORD GRANTCHESTER
I do not think I need say more than a few words in moving this Amendment. As the noble Lord, Lord Pethick-Lawrence, has said, many of us feel strongly that "annoyance" must be reintroduced in a widened form and that the alternative of "nuisance" also must appear in the Bill. For that reason I move the Amendment standing in my name.
Page 1, line 7, at end insert—
§ THE EARL OF SWINTON
I should like to intervene on this matter to support this Amendment most strongly. Other speakers have said what we want to do in this Bill. We have a nuisance and we have to deal with it. We do not want the Bill to go further than the area of nuisance if we can possibly avoid it. I think that this is common ground to all of us. Whether these words are exactly appropriate I am not sure, but I feel quite sure we could get an Amendment which would be satisfactory in doing what is required. And, if I may suggest it, I do not think it would be in the least difficult to get evidence. We do not want the evidence of people who say, "I myself was personally annoyed by some prostitute last night." That should be quite unnecessary. All that should be required is evidence of a general character, which might be given by the police or (as I believe the noble Lord, Lord Grantchester, himself said) by the town clerk on behalf of the local town council, or by welfare officers, to establish quite clearly that this was an area where a general nuisance was being committed. The prosecution would then take place for soliciting in that area. It would be quite unnecessary to prove that a particular prostitute who is prosecuted had contributed to increase the nuisance. She would be committing an offence because she was soliciting in an area 837 where it was established that there was a general nuisance to the community by reason of soliciting.
If I may take an analogy, there were many cases where one was not allowed to do something in a prohibited area. We had it constantly in the war. There was never difficulty. An area was proved to be a prohibited area, and if a certain action was committed there it was an offence. I believe that on those lines we can get something on which we should all agree. The Bill would deal with the nuisance but would be limited in the way I believe we all want it to be limited.
§ THE LORD CHANCELLOR
I am impressed by what has been said in the earlier discussion and by what my noble friend Lord Swinton has just said. May I just briefly state the difficulties which I see on this Amendment? Then I hope that the noble Lord, Lord Grantchester, and my noble friend Lord Swinton will be good enough to look at the matter between now and the next stage to ascertain whether they can find an answer, because it appears to me that there are real difficulties. I will state them with the greatest brevity I can.
The Committee will see that the Amendment of the noble Lord, Lord Grantchester, has two parts. It states:The annoyance can, of course, be one of two things: particular annoyance to an individual, or general annoyance or nuisance caused by the presence in the street of a large number of prostitutes. I have indicated—and I shall take a great deal of shaking on this point—that to introduce the conception of individual annoyance would be to write a dead letter. That is the view of the Macmillan Committee, and it was also expressed twice by the Wolfenden Committee. I will always listen, but I should take a great deal of convincing on that point.
- "(a) to the annoyance of the inhabitants, occupiers of non-residential premises or passengers; or
- ((b)) so as to constitute a nuisance."
The question of nuisance which has been introduced by the noble Lord, Lord Grantchester, is a different matter, because there we have respectable ancestry, including the Report of the Church of England Moral Welfare Council. May I just explain the position, subject to 838 correction by my noble and learned friends who are here? At Common Law any person is guilty of common or public nuisance who doesan act not warranted by law of which the effect is to endanger…the morals or comfort of the public or obstruct the public in the exercise or enjoyment of rights common to all Her Majesty's subjects.Of course, a number of former public nuisances are now named in Statutes, and the concept of public nuisance is familiar and the nuisance created by prostitutes is clearly within it. There are analogies in the statutory field and there are analogies in the Common Law field. My noble and learned friends Lord Birkett and Lord Denning were both considering that; I think they both referred to Grey's case, the indecent exhibition, in the debate we had a few days ago. Equally, I agree that a person may be convicted of public nuisance without proof that any particular member of the public is aggrieved.
There are these difficulties in relation to prostitutes in applying the concept of public nuisance. In some circumstances and in some areas the persistent presence of one prostitute may be so offensive as to constitute a public nuisance, as in a very select, small cul-de-sac or, to take a more extreme example, outside a school. That might be held. But in areas like the West End what constitutes a nuisance is, as I have said so often, not so much the presence or conduct of any particular individual as the gathering of a number of individuals for the same purpose. That is one point. The other horn of my dilemma is that the law must deal with individuals. It is not clear that the individual prostitute soliciting in Piccadilly could be proved to be soliciting so as to constitute a nuisance, and if no particular prostitute can be convicted it becomes impossible to remove the plurality of prostitutes which is the problem. I hope the Committee will acquit me of being legalistic or cheeseparing. I am not; I am trying to state the problem and I should be grateful if any noble Lord could help me upon it.
Assuming that we now accept (though not all noble Lords agree) that, in view of the comments of the Macmillan Committee and the Wolfenden Committee, and what I read relating to the Church 839 Council, we are not going to press further the individual annoyance, I think there are two things that we have to consider. One is that the presence of the prostitutes is injurious to the public at large, and the public have to be protected. Again, I think we all accept that. Paragraph (b) can, I think, be most hopefully approached on the basis (and I think my noble and learned friend Lord Denning had this in mind) that one person can contribute to a nuisance. For example, in the case of smoke, although it is the smoke of a number of persons, one person's smoke can contribute to a nuisance; and one person can contribute to a crowd, which is what he had in mind.
Now the first point that I put to the noble Lord, Lord Grantchester, for him to consider is that that is not imported by his words. If his Amendment were altered to read, "cause or contribute to", then one gets on to the other difficulty; that in any prosecution of any particular prostitute the prosecutor would have to be armed with evidence to satisfy the court of the existence of the nuisance. I should like to give consideration to what the noble Lord, Lord Grantchester, has said about whether that could be done by calling a police officer as to the general state of things, or a member of the town clerk's department, or somebody else. It is rather a difficult point, unless he goes out and then comes and says, "I myself actually saw a number of prostitutes congregating at this time". What is needed is not evidence of reputation, but evidence of what has actually been seen. I should like to consider that point.
As I say, the Amendment is, in my view, defective at the moment for the reasons that I have set out; and I do not want to commit my right honourable friend the Home Secretary until I have had a chance of discussing this with him and until the Home Office has had a chance of discussing it with the police. I promise to do that, however, and what I suggest is that my noble friend does not press the matter to-day. If I find that I cannot do anything, or if there are objections—I am speaking entirely without prejudice to the position to-day—I will write to the noble Lord, Lord Grantchester, so that he will have ample 840 time to put down either this or a similar Amendment before report. I think that is the most convenient way of dealing with it.
§ LORD GRANTCHESTER
I am very grateful to the noble and learned Viscount the Lord Chancellor. I would agree that individual annoyance in the case of a person approached by a prostitute is difficult to prove, but I do not agree that, when the nuisance arises, annoyance does not come in other than to the person actually approached.
With regard to the other matter, of a single person contributing to a nuisance, on the assurance that it will be carefully considered and that it seems possible that words acceptable to the noble and learned Viscount might be found, I am quite happy to withdraw my Amendment and to pursue it on the basis he has suggested.
§ VISCOUNT ASTOR
Before the noble Lord withdraws his Amendment, may I ask the noble and learned Viscount whether he will answer the point I put to him? This Bill, according to him, is to deal with the congregation of prostitutes who make themselves a nuisance. Under its terms, as I read it, one single woman standing perfectly silent in an empty street could be prosecuted. Would it be a valid defence under the Bill for a woman to say, "There was no other prostitute in the street; there was no other woman in sight, or only one; there was hardly anybody around, and I stood absolutely still and did absolutely nothing to annoy or cause scandal or anything else"? Would he think of accepting an Amendment to deal with such a position? We all agree that we are trying to deal with the congregation of tiresome women who make a scandal and annoyance, but this clause is drawn in such a way as to apply to quite a different class of person. Would that be a valid defence? Could I ask the noble and learned Viscount the Lord Chancellor: if it is not a valid defence, would he accept words which would make it a valid defence?
§ LORD STONHAM
May I be allowed, before the noble Lord, Lord Grantchester, withdraws his Amendment, to address one point to the noble and learned Viscount the Lord Chancellor? I apologise to the noble Viscount, Lord Astor, for 841 not pursuing my Amendment. I withdrew it because I thought that it had been well discussed and because I happened to know that we were to have this discussion on the fourth Amendment, which I thought largely covered the point. But I was impressed by what the noble and learned Viscount the Lord Chancellor said about finding two persons to give evidence about obstruction, which would kill the Bill: I did not want to do that, and that is why I did not discuss it.
What I should like the noble and learned Viscount to explain, either now or when he considers this matter, is this what will be the difference between the position that my noble friend Lord Grantchester brings about by his Amendment and the present position? Or what would be the position of any modification the noble Viscount might suggest? As I understand the present position, without this Bill a prostitute is arrested and the constable says that she was causing annoyance. He does not produce any evidence of that at all as a rule; he merely says that she was causing annoyance. The prostitute, of course, pleads guilty and is fined. That position seems to me to be extremely unsatisfactory. It is liable to lead to corruption; and I would submit that, if something is coming out of this fourth Amendment, we want something better than that.
I would also submit that, in view of the increased fines (leaving out for the moment the question of imprisonment, with which I do not agree) it seems likely that there will be more people—not the passers-by, not the people who are accosted, but the local residents and, indeed, the clergy—who are likely to come forward and complain about gatherings in their areas if they know the fines are going to be substantial and if they know that this thing is going to be properly done. Because, let us be quite frank, it is not being clone. The noble Earl, Lord Swinton, spoke about the possibility of prohibited areas. The police could prohibit all areas if they took administrative action. I should be grateful, too, if the noble and learned Viscount the Lord Chancellor would deal with that point, which I made in my speech. What administrative action, apparently successful administrative action, has been taken 842 by the police in Stepney; and, since it was successful there, why cannot similar action be taken in other parts?
§ THE LORD CHANCELLOR
May I say, in answer to the last point, while it is fresh in my mind, that I am told that the introduction of this Bill has been no small factor in what has happened in these areas. That is the view that the police and the Home Office have formed. I asked at once for a message on the particular point of the notices, to try to get further information. I am sorry I cannot give it. Perhaps the noble Lord will ask me again. That is as to the notices in Shaftesbury Avenue or Soho, or wherever it was he referred to.
On the point raised by my noble friend Lord Astor, may I say that I do not think he is putting a general position, or is giving me enough material on which to consider it. Assume that it happened that for a quarter of an hour in the Bayswater Road there was only the noble Viscount's hypothetical prostitute: that would be no reason for giving her immunity if she were loitering for the purpose of prostitution. One knows that a quarter of an hour before or twenty minutes afterwards, there is going to be a number of prostitutes there. That does not seem to me to be any argument against the contents of the Bill. We have to deal with the collective nuisance or scandal by action against individuals, and we are seeking to find an effective way of doing that.
The noble Lord, Lord Stonham, asked me about the approach of nuisance. What I wanted to convey to my noble friend Lord Grantchester was that it would take some heavy argument indeed to make me budge from my position regarding individual annoyance being covered by the Bill. Individual annoyance has really been put out of court by the Macmillan and Wolfenden Committees. Therefore, when one considers it from the approach of nuisance, one does not need to show individual annoyance. I should like to see whether paragraph (b) of Lord Grantchester's Amendment or some more objective approach would meet the question of my noble friend Lord Swinton about why there is nothing about nuisance in the Bill. I think we have had a very profitable discussion, but I cannot commit myself 843 without consultation. While perhaps it would not go the whole way of the noble Lord, Lord Stonham, and the noble Baroness, Lady Wootton of Abinger, it would help them some way along the road they want. That is what I have in mind.
§ LORD SILKIN
I do not want to prolong the discussion unduly, but I do not think that the noble and learned Viscount has done justice to the point made by the noble Viscount, Lord Astor, that under the Bill as it stands at the moment if no Amendment is made to Clause 1 an individual act of solicitation by a prostitute would be an offence. There is nothing at all in the Bill which links it up with constituting a nuisance or with the congregation of prostitutes. The noble and learned Viscount talked of there not being a prostitute for a quarter of an hour in the Bayswater Road, but let him think of other places where there is just an individual woman plying her profession with nobody near and no congregation. Under the Bill as it stands, it is an offence. That is why something like the Amendment of the noble Lord, Lord Grantchester, is really necessary. I am not laying down the form of words. I am glad that the noble and learned Viscount agrees to give it consideration and that something will be done.
THE LORD ARCHBISHOP OF CANTERBURY
May I just encourage the noble and learned Viscount the Lord Chancellor, if possible, to get the word "nuisance" into the Bill. I quote what he said in moving the Bill on Second Reading [OFFICIAL REPORT, Vol. 216, col. 73]:The Government take the view that the present state of affairs is a grave scandal and a self-evident public nuisance. We believe that the public is entitled to have effective action taken to remove it.Unless the word "nuisance" is in the Bill somewhere, it is not made evident in the Bill that what is being attacked is not one or another prostitute but the public nuisance which is being caused. I hope that the noble and learned Viscount will do his best to get this word in.
§ THE LORD CHANCELLOR
I will certainly do that. I am afraid that I have said this before and I do not want to 844 repeat it too often. The difficulty is to get in that conception and get the punitive power against the individual who shares in creating it. I should very much like to look at this point and to consider whether it should be included.
THE LORD ARCHBISHOP OF CANTERBURY
I did not want any answer. I am only trying to support the case for trying to get the word in, if possible.
§ THE LORD CHANCELLOR
In view of what the noble Lord, Lord Silkin, said, that I had not done justice to my noble friend, may I say that I think I have done all the justice which I can at the moment. I would rather look this over and think about it again.
§ Amendment, by leave, withdrawn.
§ 6.36 p.m.
LORD DENNING moved, after subsection (1) to insert:
(2) It shall be an offence for any person to avail himself of the invitation thus held out so as knowingly for his own lewd purposes to support or encourage such loitering or soliciting in a street or public place.
§ The noble and learned Lord said: This Amendment deals with a distinct subject matter. The object of this Amendment is to make the customer, as he is called, also liable and guilty of an offence. As the most reverend Primate has said, there is nothing to choose between the man and the woman. The supply would not be there unless there was the demand, and the demand comes from the man. Therefore, the nuisance is, so to speak, a joint creation. Morally, there is nothing to choose between them.
§ In other branches of our law there is joint liability. The receiver of stolen property, if he knows at the time when he receives it that the property was stolen, is guilty, because he is a participator and helps in it. There would be no thieves, it is said, if there were no receivers. In the case of bribery, not only the man who offers a bribe, but also the man who knowingly receives it, is guilty. May I take a further example from our old law? Public and open lewdness, as it was called, was an offence. There was 845 a time, a very long time ago, when it was an offence for a man publicly to frequent a bawdy house, because he contributed to it. He was fined 40s.
§ If we wish to stop this nuisance, I doubt whether we shall ever do it by simply prosecuting the woman, fining her or even sending her to prison, so long as the man is unpunished. After all, he is ready to share a bed with the prostitute. Why should he not be ready to stand beside her in the dock? If the man, the customer, were summoned, I suggest that it would bring this nuisance to a speedy end. It need only be a fine, perhaps even a binding over. There should be no difficulty in finding the customer. He could be followed to the house and his name and address taken afterwards. He need not be arrested, but could be summoned to appear with the woman when she appears in court. If he is equally guilty; if his offence can be equally well proved; if it is brought home to him, as this Amendment suggests, that he knowlingly encouraged or supported this, there is no reason why he should not he guilty of an offence. The purpose of this Amendment is to put the man alongside the woman in that way. I beg to move.
Page 1, line 7, insert the said subsection.—(Lord Denning.)
It is a very bold thing for me to suggest that the noble and learned Lord is guilty of a confusion of ideas, but I am going to be bold enough to do it. The offence here is loitering and accosting in the street, not going to bed with a lady. That is the offence for which he is seeking to punish the customer. And that is what has been declared on all sides, during the Second Reading and during this debate, is not the object of the Bill. Therefore, I think there really is a confusion of ideas and I humbly submit that it is not relevant.
I think I can defend the noble and learned Lord, Lord Denning, although he could no doubt defend himself much more easily, against the charge of confusion of ideas made by the noble Lord, Lord Saltoun. The short answer to the noble Lord, Lord Saltoun, is perfectly clear. These ladies could not commit this public 846 nuisance without the assistance of these customers; they are aiding and abetting the public nuisance, the legal offence. I hope I have put it correctly from the point of view of the noble and learned Lord, Lord Denning, which is also my point of view. There is here no confusion of ideas.
I should like to refer for a moment—and perhaps I may be allowed a minute or two, as I have not yet spoken to-day —to what I think was the most moving and powerful speech that I have listened to in this House since I have been here; that is, the speech made on this precise aspect by the most reverend Primate during the debate on the Wolfenden Report. I went away from that debate at the end of 1957 with a new approach to this problem of the women, having heard what he said. It is the men who are the root of the trouble. It may be said that they are jointly responsible, but I should feel, because throughout history they have been the stronger parties, that the responsibility must rest directly on their shoulders. I think that it must be humbug to penalise these women and to shirk the task of penalising the men who have placed them in that position —the hunters, as they have been so well called. If that is a primary moral responsibility, an overwhelming duty, I cannot believe that there is some technical reason which makes this impossible.
The noble and learned Viscount the Lord Chancellor seemed himself to feel the moral responsibility when he spoke on the Second Reading. Unfortunately, I was unable to be present, but I have read his remarks, and those of others, with great care. The words used by the Lord Chancellor in the Second Reading debate were [OFFICIAL REPORT, Vol. 216, col. 76]:… but the customer, though his moral responsibility for the act of immorality is no less than the prostitute's…So he himself accepted the fact that it is no less: I would say that it was greater, but I will not argue that point now. Let us say that it is no less than that of the prostitute. Up to the present —and I do not despair, because the Amendment would not wreck the Bill, but would add something fundamental 847 to it—he says that though the customer's responsibility is no less, he should escape scot-free. How can that be justice?
To-day, the noble and learned Viscount, not unnaturally, because we have not come to that Amendment and he was speaking somewhat briefly on the particular point, used, in effect, a different argument. He said that it was more or less impossible—I think he even used that word—to catch the customer; you could not, so to speak, witness the act of lust, and because of that there was nothing you could catch him out in. That is putting it crudely, but it is what the argument boiled down to. From what was said by the noble and learned Lord, Lord Denning, I do not think there is a technical difficulty. If we think that is a duty, I do not think we can put it away from us on the ground that we do not know how to carry it out. I do not think I need say more. Here is a duty that is not in the least difficult to carry out. It is not just a question of this Bill, though it is fundamental to the Bill, but one of our whole approach to the weaker sex. I hope and believe that the noble and learned Viscount the Lord Chancellor will say something to-day to give us some encouragement. However, if he cannot, I hope that the noble and learned Lord, Lord Denning, will press his Amendment to a Division. For, whatever the voting, I hope that this will go down in the history of this House as an occasion when, for the first time, a real attempt was made to do justice to the weaker sex.
§ 6.44 p.m.
THE LORD ARCHBISHOP OF CANTERBURY
I should be grateful if I might add a word or two in support of this Amendment. I am on record as having called this Bill timid. I was not really attacking the Bill or the Government, but was attacking the whole history which lies behind the approach to this particular public nuisance. Always the approach has been that the man must not be touched. I have never understood that. It is true that it is easier to get the woman, but I have never known it as a good reason for letting offenders off that it is difficult to get hold of them. I have never had a satisfactory reason given to me why there 848 should be a timid and gentle approach so that, whoever else suffers, the man should not. This Amendment puts the point completely clearly, and no one can run away from it. This does not complicate the Bill; it simply says: "Shall the men be exempted from any offence, or shall they be included?" The noble and learned Viscount the Lord Chancellor has called this a trade. As the noble and learned Lord, Lord Denning, said, it takes two people to make a trade; two people must be in the transaction. What reason in justice is there why one should escape and not the other?
§ LORD STONHAM
I feel that so long as it is true that we treat the two sexes differently in this matter, and do not recognise that both are responsible for the condition of the streets and for prostitution, then we continue and condone a double moral standard in our legislation. I do not think that is answerable in any way. This Amendment, which I support, seeks to end that position. In the course of this afternoon and this evening we have heard a good deal about the need to reform women, but not nearly so much about the responsibility for men. In fact, the most effective way of dealing with prostitution is to deal with men, whose money is the fount and justification of the whole thing, and the only way it lives.
Much has been said to-day about the Wolfenden Report, but on this matter, in particular, the Wolfenden Report was virtually blind and dumb, and from the outset the Committee's condemnation was centred on the woman. The man who goes with her is apparently nonexistent, or, even worse, an injured innocent; and while the woman has to be struck with much heavier penalties, the man who goes with her is to go scot-free. As my noble friend Lord Pakenham said, if the policeman can see the woman, there is no difficulty in his seeing the man who goes up to her, and he can take the appropriate action. With all respect to the noble and learned Viscount the Lord Chancellor, Section 32 of the Sexual Offences Act is by no means as effective in relation to the man as these proposals we are discussing are in relation to the woman.
849 I know that my noble friend Lord Silkin mentioned Section 32 of the Sexual Offences Act, but what was not mentioned is that the woman has to prove that the man importuned; whereas in this Bill the woman can be picked up just on the opinion of a constable, whether she has done anything or not. So it is no use saying that the man is dealt with in another way but in almost the same way; there is no comparison whatever. There is this completely double standard. I would submit that the injustice of this is quite insupportable, especially as I think it is the case that there will be no need for two prosecutions, including one for importuning women under the Sexual Offences Act. If that is the case, it is a measure of the value of the suggestion that men are adequately dealt with under other legislation. In fact the men go scot-free, which is an injustice that the acceptance of this Amendment would end.
Again to mention the Wolfenden Report, the Committee's attitude to kerb-crawling is most remarkable. They referred to the possibility of a damaging charge being levelled at an innocent motorist: that must be borne in mind, so they were unable to make a recommendation on that. But they had no qualms about the possibility of a terribly damaging caution being levelled at a woman, in the belief that she was loitering for the purpose of prostitution. I hope, therefore, that the Lord Chancellor will be able to say that the Government accept the Amendment, because it will be a sad day for your Lordships' House when we turn our back on the principle not only that people should be equal before the law, but that both sexes should be treated alike.
§ VISCOUNT ASTOR
Surely, this Amendment as drafted goes too far. This is not a Bill to prevent fornication, or to prevent a man from sleeping with a woman or the exchange of money. This Bill is to prevent a public nuisance —congregations in the street, and people creating a nuisance. Surely, one could have an Amendment to say that if men behave in this way—if, for instance, a gang of young men hang around and stop women coming along and make a nuisance, or if a man stands outside a girls' school or women's institute and 850 persistently importunes them as they come out—then they are acting in the same way as a prostitute and should be caught out. But, surely, it is not the intention of the Bill that if a man meets a woman in a completely deserted street and goes off with her, it should be an offence, as under this Amendment I think the man and the woman should be equal in the sense that if they make a public nuisance they should be equally guilty. What happens in the privacy of some deserted street is nothing to do with the purpose of the Bill.
§ THE EARL OF IDDESLEIGH
May I suggest that we shall do this Bill more justice if we realise that it is not a Bill to control sales but advertising. The difficulties over the complicity of the man will be resolved if we come to the conclusion that it is the advertisement which is at fault. It is not the customer we are seeking to get at in this Bill. I have the greatest sympathy for the motives of the noble Lord, Lord Pakenham, and the most reverend Primate in trying to catch the man. Nobody can fail to wish that it were possible to do so. But to do so would alter the purpose of the Bill from a Bill to control a public nuisance (which is essentially the nuisance of advertisement) to a Bill to control and prevent prostitution, which is not the purpose and which it is generally agreed should not be attempted here.
May I ask the noble Earl one obvious question that has been dealt with by earlier speakers? Surely he must agree, if his sole object is to clear these women oil the streets, that one of the most obvious ways of doing so would be to deprive them of all customers so that there was no reason for them to be there.
§ THE EARL OF IDDESLEIGH
Of course, that is a perfectly good point; but to deprive them of all customers means, in fact, to penalise prostitution. That is what we are not trying to do in the Bill. We are trying to control the nuisance created by the indiscriminate advertisement of prostitution in the streets.
THE LORD ARCHBISHOP OF CANTERBURY
May I also ask the noble Earl a question? We have been refused the first Amendment, which was designed 851 precisely to put an end to a public nuisance, whether created by a man or a woman. Are we to be given no remaining weapon to end one half of the traffic?
§ THE LORD CHANCELLOR
On this Amendment I find myself in considerable sympathy with the doubts expressed by my noble friends Lord Astor and Lord Iddesleigh. I think one must get the distinction clear. The noble Lord, Lord Stonham, referred to the Statutes which deal, if I may use the generic term, with pestering women. I said on the first. Amendment—and I think I made the distinction quite clear—that I was dealing with Statutes which were concerned with pestering, insulting, soliciting and so on. The point that I was making was that, broadly, allowing for the difference in the offence, the man who pestered is provided for by the law. You can argue whether he is sufficiently provided for or not, but I was saying he was. Of course, this is a totally different problem. This is of the man who accepts and avails himself of an invitation. That is the action dealt with by the Amendment which is before the Committee. That, of course, is quite a different action, and the problem before us now is, first, should that be made criminal, and, secondly, should it be punishable by the same penalties as for the prostitute who plies her trade in the street? That is the problem before us.
In answering this Amendment, I do not want to resile from what I said on Second Reading as to the moral responsibility. The Government recognise, and I recognise, that there would be no prostitutes on the street if there were not men seeking their services. But the first point is that this is not a Bill about prostitution per se. It is designed to deal with a specific problem of public order, and the prostitute is being punished not for fornification, in which sin the customer is equally guilty, but for the nuisance she creates by, if I may use the words of my noble friend Lord Iddesleigh, "advertising her wares". It is not intended to make adultery or fornication criminal offences, either for the woman or the man—I do not think that that has been a great success when it has been tried, unless you combine it 852 with being able to have more than one wife and easy divorce, which raises the other problem the noble Lord, Lord Pakenham, will have in mind. It has been tried in various places; but I do not think it would be profitable to go into that matter on this discussion. The only argument that is relevant, as the noble Lord, Lord Pakenham, said, is: Are you going to stop this by making going with a prostitute a criminal offence? That is what it comes down to.
I think the first point against that proposal is that we are really dealing with the nuisance of plying the trade in the streets, and it seems to me that it is rather difficult to say, "I am going to treat as a criminal the man who goes off with a prostitute and avails himself of her invitation; I am not going to treat as a criminal the man who commits adultery with the wife of a man who has trusted him; I am not going to treat as a criminal the man who takes her virginity from a young girl". I think that by Lord Pakenham's argument, which he put forward with great force: that you must deal with this matter simply as an appendage to the position of the prostitute—the position becomes in artificial one.
Perhaps I may intervene; I know how good the noble and learned Viscount, the Lord Chancellor, is at giving way. I quite agree you can imagine much worse cases of adultery and fornication than the behaviour of the gentleman as the prostitute's customer. The reason you cannot interfere in other cases, as I understand it, is that you would be interfering in an intolerable way with private life. I do not regard it as interfering in an intolerable way with private life when you deal with a man who is aiding and abetting a public nuisance.
§ THE LORD CHANCELLOR
I must say that I am more struck with the debating power of that argument than with its depth. Of course that does not deal with Lord Iddesleigh's point that the gravamen of the charge against the prostitute is advertising her wares. I once got a report from America when I was Home Secretary. I dislike quoting things from memory, but roughly the effect was that in the view of those who reported to me the fact of advertising the wares 853 made a very considerable difference. Speaking from memory, I may say that they thought that the number of men who went with a woman who pushed herself at them in the street was 30 per cent. higher than the number who would take the trouble to go after a call girl or somebody of that kind. In other words, this is really Lord Iddesleigh's point: there is a real effect in the advertisement. That was the figure that was given to me, and it must contain an element of opinion, but it is not something one can entirely write off.
I want to come to the practical difficulty of the Amendment. Your Lordships will see that after "invitation" it saysso as knowingly for his own lewd purposes to support or encourage such loitering or soliciting in a street or public place".I quote that only to show the difficulty of the drafting. First of all there is a difficulty of proof. A man who is solicited by a prostitute and is seen to walk off with her may or may not have accepted her invitation. That is the first point. Many of your Lordships will remember the position in regard to the late Mr. Gladstone, the Prime Minister, that he was in the habit of taking prostitutes to his house for the purest motives of reforming and helping them in many ways. It caused, as is common knowledge, intense embarrassment in many circles in the nineteenth century. There is that, first of all. I quote that only as being an extreme case that shows that the man who is seen to go off with her may or may not have accepted her invitation.
Then we come to the next point. The offence would be committed only if the man accepted the prostitute's invitationso as knowingly for his own lewd purposes to support or encourage such loitering or soliciting".That would seem to imply either an intention or a consequence of his action —I do not think it is quite clear—being deliberately to support or encourage the woman in continued loitering over a period so that she may be available for his own lewd purposes. Of course, that is not how it happens. The man does not care at all whether the woman will ever be available again. He wants her for the satisfaction of his own desires on that occasion and at the moment when 854 it has come into his mind. I should not have thought that he cares whether she is going to be loitering or soliciting again or that the idea of supporting or encouraging her was in his mind for a moment. Although the fact that she successfully solicits men can be said to be an encouragement to her to continue in the profession, would it be possible to prove that her success with any particular man had that effect? I dislike developing these minor points at any length, but I think they are relevant in this way. I am sure that my noble and learned friend, Lord Denning, did not put these words into the Amendment without good purpose; he is far too skilled and learned a lawyer for that. But once you put them in you get into the difficulties I have mentioned and that is the reason I have mentioned them.
I find it difficult to formulate to my own satisfaction the reason why I object to this Amendment, but I think it is, as I have tried to explain to the noble Lord, Lord Pakenham, really that it strikes, and its main and dominating purpose is to strike, at fornication or adultery. The purpose of also striking at prostitution seems to me a secondary one. I fully understand that Lord Pakenham should want to strike a blow at both purposes, but I think that that is really the reason why I find it difficult to accept the Amendment. I am very sympathetic with the motives, but I do not think that for the purpose of this Bill it would really help.
THE LORD ARCHBISHOP OF CANTERBURY
May I ask one question which goes back to the suggeston made earlier in this debate? I am still anxious about the fact that here is a Bill on street offences which never mentions the men at all. It is confined entirely to the female sex and a particular group within that sex. What we are dealing with is a public nuisance, as the noble and learned Viscount the Lord Chancellor has said again and again. If we get no satisfaction under the first Amendment and none under this Amendment, would the noble and learned Viscount, the Lord Chancellor, consider amending the Sexual Offences Act, 1956, in the way suggested earlier, so as to make men liable to the same offence as is laid down here for women; that is to say, 855 not as it runs now, an offence persistently to solicit or importune in a public place, butto loiter or solicit in a street or public place for the purpose of prostitution",thus bringing the two measures into line with one another?
§ THE LORD CHANCELLOR
Frankly, I have never applied my mind to that point at all. As the most reverend Primate asks me to do so, I certainly will; but I cannot say more than that. Perhaps the most reverend Primate will remember that that deals with an offence, as I said, leading to what has been for 500 years, in one case, and 100 years in another, a criminal offence, and subject to very heavy penalties, so that I should have to consider it very carefully. But I will do so with pleasure. I cannot say more.
THE LORD ARCHBISHOP OF CANTERBURY
It will be introducing a new offence, but obviously not linked to those more grave criminal offences to which the Lord Chancellor referred, and without the same penalties.
§ LORD SILKIN
I find myself in almost complete agreement with everything that the noble and learned Viscount has said on this occasion. It is possibly an unusual position to find myself in, but I think he is right. Whatever one may feel about the moral aspect of the matter, I do not think that this is the right place or the right occasion for dealing with it. If one wants to make fornication an offence, one should do it deliberately, after due consideration, in a special measure, and not by way of an Amendment to a Bill which is designed for a totally different purpose. If one wants to deal with the problem of the streets, I recognise that possibly this is one way of dealing with it; but it is an extraordinary way of dealing with the problem. You can equally well deal with the problem of the streets by closing them or by flooding them, or by doing all sorts of physical things which will prevent women from congregating in these areas.
My main reason for rising is to associate myself with the intervention of the most reverend Primate. I am most worried about this being a Bill wholly 856 concerned with females. I still think that a good deal of the problem arises from men. Even though the Government have put on their Whips and with the successful whipping of the noble Earl have managed to get a majority, there was a very substantial minority—an unusually substantial minority—which took the other view. I had not the opportunity of accepting or saying anything in response to what I thought was possibly a hint from the noble and learned Viscount about the Report stage. I understood him to say that, while he was making no bargain, if we did not press this Amendment to-day, there was, after all, a Report stage and we could all think again.
I should have been disposed to accept that hint from him, and I would now ask him whether he would treat the Division as having not taken place and bring us back to the situation we were in when he made that speech, when I thought he suggested, "Let us all think again about the possibility of doing something on the lines of this Amendment "—that is, on the first Amendment. I think that the Bill would be enormously strengthened if men could be brought in in some way, possibly by way of the suggested amendment of Section 32 of the 1956 Act, so as to bring it into complete conformity with the terms of this Bill, or in some other way. I should feel very happy if the noble and learned Viscount could give us some assurance that the door is not completely closed to this question of bringing in men as well as women—but, of course, not on the basis of this particular Amendment that we are now discussing.
§ THE LORD CHANCELLOR
I do not think I can really go further. I have promised to look again at the approach to nuisance. I shall not keep the problem in a watertight compartment. I will look at the whole problem again. But I find it very difficult—I know that the noble Lord, Lord Silkin, will not press me—to give any undertaking at this stage in the debate, except that I will really look at the point and I will note what he has said. I will do that with great pleasure.
§ LORD DENNING
The important point is that, if this Bill goes through, the law has been altered so that annoy- 857 ance is eliminated. Previously, it had to be shown that the woman went up to a man and accosted him and he turned away annoyed. That is eliminated. It is now simply her loitering or soliciting in a street without any annoyance at all. To that offence there is a double party —the offerer and the acceptor. It has been, said "Oh. well, it is the advertising; that is the nuisance which we are seeking to strike at". Truly. But at the moment this Bill does not contain a hint of it; there is nothing about advertising in it.
The Bill must be greatly amended to bring in nuisance. But even if it does, are there not two people in this nuisance —the woman on the streets who offers and the man? It is deliberately put in the Amendment "who knowingly accepts, knowing he is aiding and abetting". As with receiving stolen property,
§ House resumed.