§ 3.50 p.m.
§ Debate on Second Reading resumed.
§ THE EARL OF KILMUIR
My Lords, I should like to make two preliminary remarks. The first is that it falls to me to congratulate the noble Marquess, Lord Queensberry, on the admirable maiden speech which he has just given to the House; and the fact that, as will appear, I do not agree with his point of view does not diminish the sincerity of the compliment which I am sure I am expressing on behalf of the whole House. The second point is that, looking back over the arches of the years, I find that I was one of those who appointed the Wolfenden Committee; and again I must say that I am grateful for the immense work which they gave to this part of their subject, although again I disagree profoundly and sharply with that one of their recommendations which my noble friend Lord Arran has brought before the House in this Bill. I should like my noble friend Lord Arran to believe this: that I understand and respect the compassion which is in his mind with regard to the unfortunate people whom we are discussing, but I say that legislators like ourselves are bound to consider on the other side the duty of Government—by that I do not mean the Government of any particular Party, but the Government that has to run the State.
Lord Arran was good enough to say that he wished a discussion on the general principle, and, so far as I can, I will try to follow that course. I believe, after some fourteen years in Government, spread over the last quarter of a century, that one of the duties of Government is to maintain minimum standards in every field of life where that is right, and that the necessity to maintain minimum standards is the dividing line which permits the infringement of personal liberty which is so dear to most of us. Long experience in, for example, the fields of safety and public health has proved that these minimum standards can be maintained only by the sanction of the criminal 655 law. If you take the whole period from Lord Shaftesbury's first Factory Bills to the present time, you will find that that is one of the necessities of Government: that these minimum standards must be maintained by the sanction of the criminal law. The same, in my view, applies in the field of decency.
I am not going to deal with any technical matters or any defects which the noble Earl has thought of since he produced his Bill; I want to deal with this general problem. That is what I start from. But it is even more important to pause and consider when one is proposing to remove the sanction from something which has been a criminal offence for many centuries. I believe that the result would be, and must be, after 432 years, that if people find that the view is changed, then, in the eyes of many of them, this behaviour will have a respectability that it never had before. I also believe that many of those who now keep silent and discreet about their desires will feel free to proselytise, and this is a matter which is well known. It is no help on this point for the noble Earl to say that importuning would still be an offence. That is not the proselytisation I have in mind. I have in mind the proselytisation which goes out from sodomitic societies and buggery clubs, which everybody knows exist.
THE EARL OF ARRAN
My Lords, I must interrupt the noble and learned Earl. I have no such knowledge, and I have been into this matter closely. The noble Earl may know from his legal knowledge, but I have no such knowledge. I think it is grossly exaggerated and largely untrue.
§ THE EARL OF KILMUIR
My Lords, the noble Earl is entitled to his view and I am entitled to mine. After all, I did spend thirty years at the Bar, when I did criminal work, and I was Home Secretary for three years. Therefore I do not think that my noble friend ought to deny me the right to state my view, because, after all, that is largely behind most of the arguments he has put to us. He can have his view; I have given mine.
§ LORD JESSEL
My Lords, may I interrupt, because I am interested in this question? Was that evidence about these clubs put before the Wolfenden Com- 656 mittee? I cannot remember. If it is as well known as the noble Earl says it is, I am sure it was brought to the attention of the Wolfenden Committee.
§ THE EARL OF KILMUIR
My Lords, I cannot answer the noble Lord one way or the other, but I can still give my view. And I can add this to it: that when I was Home Secretary I asked for a report on 96 cases of men who were in prison for homosexual offences. The report covered a psychiatric examination. According to the report given to me, only 15 out of the 96 were genuine inverts. The remaining 81 carried out their homosexual practices for other reasons, such as boredom with women, desire for sensation and for money. Neither this Bill nor any other piece of legislation which I can think of can distinguish between the genuine 15 and the 81 who were simply not standing up to wickedness. Although I agree that blackmail is a horrible crime, and that the stiffest sentences should be given for blackmail, even in 1965 we should not forget that one way of avoiding being blackmailed is not to commit the offence.
I come now to the question of the disciplined Services. I understand from what the noble Lord, Lord Stonham said, and from the interjection from the noble Lord, Lord Shackleton, that Her Majesty's Government support the Bill on the basis that Section 66 of the Army Act would be retained. That is the Section which provides for the punishment of, inter alia,…disgraceful conduct of an indecent or unnatural kind…".
§ LORD STONHAM
My Lords, if the noble and learned Earl will allow me to say so, at no stage have I said that Her Majesty's Government support the Bill. I gave the position in regard to the Army Act only in relation to the position of the Services, and said that it was thought that the position in the Services would be unchanged by this Bill.
§ THE EARL OF KILMUIR
I should like the noble Lord to explain that to me, because the Bill says:Notwithstanding any statutory …provision, a homosexual act in private shall not be an offence…".Section 66 of the Army Act is a statutory provision dealing with disgraceful conduct of an unnatural kind. What I want 657 to know—this is most important, and my noble and gallant friend Lord Montgomery of Alamein was challenged on this point—is this. Is what we are being asked to pass a Bill which will contain, or which the Government will seek to make contain, a provision by which Section 66 remains in force, or are we discussing a Bill under which, as it stands at present, Section 66 does not remain in force? I should like to hear from the noble Earl, Lord Arran, and from the Government, where they stand.
THE EARL OF ARRAN
My Lords, with great respect, the noble and learned Earl is introducing Committee points. At this stage all we are being asked to vote upon—and I must ask your Lordships to remember this—is whether or not we think the principle of homosexual law reform is correct. The other points which can be brought forward—and I hope the noble Earl will bring them forward himself in Committee at a later stage—are obviously matters which concern your Lordships very deeply. But at this stage, as the noble Lord, Lord Stonham, has said we are on Second Reading, and I do not think we are asked to vote on that point but only on the question of a Second Reading.
§ LORD HOBSON
My Lords, if the noble and learned Earl will allow me to say so, is the noble Earl, Lord Arran, unaware that it is utterly impossible to amend the Bill on the lines he is indicating in regard to Section 66?
§ THE LORD PRIVY SEAL (THE EARL OF LONGFORD)
My Lords, I think that we ought to allow the noble and learned Earl, Lord Kilmuir, to proceed.
§ THE EARL OF KILMUIR
I do say—and it has been shown already by my noble and gallant friend Lord Montgomery of Alamein—that this is an absolutely vital matter. If we are being asked to pass a Bill which does not protect the position of the Armed Services, that is entirely different from being asked to pass a Bill which does protect them. If my noble friend Lord Arran were to say, "I accept in principle and I shall look at it later"; if the noble Lord, Lord Stonham, were to say, "The Government would not have anything to do with a Bill which did not protect the position of the Armed Services", then I am sure that a number 658 of your Lordships might feel very differently. But unless we begin there, we do not know where we are.
§ LORD STONHAM
My Lords, if the noble and learned Earl will allow me to intervene, my noble friend Lord Shackleton dealt with this point earlier, apparently not quite to the noble Earl's satisfaction or sufficiently fully. But I would suggest that, with regard to the assurance that he wants, this and other legal points which may arise—and I understand the noble and learned Viscount, Lord Dilhorne, will be speaking later—can be dealt with afterwards by my noble and learned friend the Lord Chancellor.
§ THE EARL OF KILMUIR
This is not a legal point. I do object—I object, of course, without any ill feeling of any kind, as the noble Lord knows—that, because I happen to have been bred to the law, every point I make should be described as a legal point. This is a point which is of vital importance to the Government—namely, are we or are we not going to provide that in the Armed Services buggery between officers will continue to be an offence? I agree with my noble and gallant friend Lord Montgomery of Alamein that if you legalise buggery you still cannot expect other ranks to have any respect for officers who are known to go to bed together.
§ THE EARL OF KILMUIR
Of course, they will not have any respect for them, and that. I am sure, is the experience of everyone. But it does not stop there. Even if my noble friend Lord Arran and the Government were prepared to give this undertaking, which they obviously are not, what about other disciplined services, like the police forces and the prison service? They are not covered by the Army Act. Are your Lordships going to pass a Bill that will make it lawful for two senior officers of police to go to bed together? If that is the position, do your Lordships think that they would get any respect from the men under them? Of course they would not. The same applies to the Prison Service.
659 There are two entirely different problems involved. One noble Lord interrupted—and I never mind being interrupted—to raise a different point, the fact that Lesbianism is not an offence. That does not affect my point that for a force that is responsible for the protection of law and order, like the police force, to be in a position where this could happen, and for your Lordships to pass a Bill to bring that about, is, in my view, entirely wrong.
I should like to put one wider point to the House. Are your Lordships sure that it is right at this moment to extend what, for want of a better phrase, I call the permissive world, at a time when crime is increasing and personal standards are admittedly low? As I have said, compassion is comprehensible, and must always exist towards the element of misfortune which accompanies crime; toleration of a different point of view with which one disagrees can be good if it does not become facile acquiescence. But toleration of actions of lying and cruelty and indecency can never be right. It then becomes indifference, and indifference to the spread of actions which the vast majority of people think wrong, unnatural and degrading is something which the legislators of a country cannot afford.
I know, my Lords, that there is a point of view to-day which has some popularity and which would say that because it is 432 years since the passage of the Act of Henry VIII on buggery, it is therefore a good thing to change it. I respectfully ask your Lordships to consider the more modest and humbler but more democratic point of view put forward by a great friend of mine. It is worth remembering that the dead are the great majority, and many of the dead were not fools. I ask your Lordships to reject this Bill.
§ 4.12 p.m.
THE LORD BISHOP OF CHICHESTER
My Lords, I hope that I may first add my own tribute to the noble Marquess who made his maiden speech just now. If he has not resisted the natural temptation to wait for a non-controversial occasion, then it is because he has been speaking on a subject on which he has deep convictions, and he has given his 660 own opinion to us with great sympathy and great insight and made a notable addition to our debate.
In the previous debate to which reference has already been made there was such a remarkable weight of support from all sides of the House for the Motion of the noble Earl, Lord Arran, that he has every justification for bringing forward a Bill on this subject with the expectation of sympathetic support for it. Many of your Lordships have noted already the degree to which public opinion has in these last few years crystallised in favour of reform. We may be, in some sense, seeking to lead public opinion; we are also alive to its voice. That debate aroused much sympathetic interest throughout the country, and what was chiefly encouraging was that whereas this subject can rarely be handled without arousing deep emotions, on that occasion is was free from anything but clear, plain thinking which we should all wish to be extended also to the consideration of the present Bill.
I want first to say that I hope this Bill will receive a Second Reading. There is no need, after that last long debate, to repeat all the arguments which came from these Benches, or from elsewhere in the House, but on that occasion the two most reverend Primates and two right reverend Prelates spoke in favour of reform, and they spoke for many of us who did not then take part. We must, of course, continue to assert, as one of the most reverend Primates did, that homosexual acts are always in principle wrong. There is no intention on our part, as the noble and gallant Viscount, Lord Montgomery of Alamein, suggested, that we should appear to be condoning such conduct. We should be inclined to say that the moral fibre of the nation may be just as much undermined by heterosexual misconduct as by homosexual misconduct—
THE LORD BISHOP OF CHICHESTER
—and that some of the indignation levelled against the one might be levelled against the other. But we must also assert that the law relating to private homosexual conduct between consenting adults does grave injustice to a large number of individuals. It is productive 661 of much misery. It produces a squalid underworld of suspicion and fear. It leads to blackmail. It leads often enough to the tragedy of suicide. Moreover, it obstructs the very purposes which the law should make possible—namely, the pastoral care and treatment of the offender and the rescue of many would-be offenders struggling, it may be, against a weakness which they have been born with, whose own resistance to the danger at present cannot receive the reinforcement and the counsel which they so desperately need. Indeed, what we wish to bring to this problem is the possibility of an area of compassion and of spiritual resources, which are almost precluded under the present state of the law. I hope, therefore, that it is enough for me briefly to repeat what has been said in support of the Second Reading of the Bill.
I know that what I have to say will be widely supported both by Bishops and clergy, who know from their own experience the unhappiness and the waste of life which the present state of the law only prolongs. The two Primates would have come here to speak in person, if it had not been for engagements in other parts of the country to which they are both bound, but I am entitled to say that they themselves, had they been here, would both have risen in support of the Second Reading. At the same time—and I think the Primates would share this view, too—without any diminution of that support which we should wish to give, I must add certain reservations.
The Bill as it stands, in its present limited form, would not be wholly acceptable to us. The promptness of the Bill is, of course, an indication both of the fervent convictions of the noble Earl, Lord Arran, and of his own real awareness that the present climate of opinion is demanding some action. Nevertheless, I must regret that his proposal comes to us only in this truncated form. The noble Earl, Lord Dundee, in the last debate expressed the fear which has been shared by many, that any relaxation of the existing law would give the appearance of extending social approval to homosexual conduct. That is the last thing we should desire or support, but it is much more likely to be true if the Bill were passed in its present limited form.
662 We certainly have a responsibility, which has been widely voiced, towards that section of society—perhaps a very limited section—whose actions would be covered by this particular clause. We also have a responsibility for the preservation of moral standards in society, and for retaining a strong public opinion on this matter. Above all, we have a great responsibility for the protection of the young, and it is so often out of consideration for them that hesitations grow about any reform of the homosexual laws. The recommendation to which this Bill confines itself leaves the present law mainly as it stands, but I do not think that that is enough. The Wolfenden Committee made it quite clear that they did not think so either. The recommendations in that Report covered not only the release from criminal penalty of consenting adults, but also a number of ways in which the welfare of minors could be safeguarded. To leave this aspect out of the Bill, or to remit it to some later stage of legislation, would seem both wrong and misleading. There would be grave danger that, if once the objective of this clause were achieved, the urge to go forward and complete the process of reform as outlined in that Report would lose its impetus.
Therefore, in addition to this clause, we would ask, in the first place, that the law in England and Wales should be brought into line with that of Scotland in regard to proceedings against persons under the age of 21. It is desperately important that a distinction should be drawn between conduct which is of a vicious and criminal 'tendency and acts which betray a mere passing aberration. This would mean enacting the fourth recommendation of the Wolfenden Report—namely, that no proceedings should be taken against such persons except by the Director of Public Prosecutions or with the consent of the Attorney General.
Secondly, we consider that the seventh recommendation of the Wolfenden Report should also be included: that there should be introduced revised maximum penalties in respect of the gravest offences, so that the penalties for seducing young people may he increased. We must remove all possible grounds for the suspicion that any relaxation for consenting adults implies that either Church or society is taking more lightly the danger to which the young may be exposed, or is proposing 663 to relax its vigilance for their protection. For similar reasons, we would press, also, for the implementation of another recommendation, Recommendation (xvi), that when a person under the age of 21 is found guilty of a homosexual offence, the court should be required to obtain a psychiatric report before sentence is passed. It is, in fact, for the inclusion within this Bill of safeguards in respect of those under 21 for which we most strongly press.
I have no doubt that discussion and reflection will reveal other ways, some of which have already been indicated, in which the Bill should be improved. If the private relations of adults cease to be a crime, then there would be certain consequences which would require watching in many different fields of society. We do not want this to open the door to any suggestion of condonation. Perhaps the medical profession would wish to reserve their judgment about any alteration in their definition of "unprofessional conduct". Certainly the Church of England will wish to retain such behaviour as a most serious offence for which a clergyman is liable under Ecclesiastical Law; and there may be other aspects, too. I mention these now since I believe that the Bill should be amended in Committee to take them into account if it is to have the wide acceptance which we all desire it to have. I hope that this comes within the intention of its promoter, for we are convinced that this proposed clause is in itself necessary. I can only reiterate, my Lords, my own conviction, without diminution in any degree of our support in principle, that there is all too much evidence of the difficulties under the present state of the law in helping homosexuals to reform and overcome their difficulties, once they have committed an offence within the reach of the law. It is for this reason alone that it is our earnest hope from these Benches that the House will give a Second Reading to this Bill.
§ 4.25 p.m.
§ LORD GODDARD
My Lords, I rise to say that I certainly cannot support this Bill—and this Bill is the only Bill we are dealing with. What Bill the noble Earl, Lord Arran, may eventually produce, or what Bill may be produced after this one has been through the Committee stage in the two Houses, I do not know. We are asked to give a Second Reading 664 to a Bill which, in three lines, takes out of the category of criminal law a crime which has always been treated in this country as one of the gravest crimes that can be committed, and which has been before Parliament for discussion on several occasions.
I hope it will not be thought unnecessary to remind your Lordships of the history of this matter. Sodomy and buggery has been an offence in English law ever since there has been law, but until the reign of Henry VIII it was dealt with in the ecclesiastical courts. The ecclesiastical courts were not notorious for long sentences, at any rate on those classed as clerks, and the benefit of clergy was given very freely—so freely, indeed, that in Henry VIII's reign Parliament intervened and passed a law against buggery and made it a felony. All felonies were capital, so it was punishable by death. The penalty for felony remained in that state until the year 1829, when, under Sir Robert Peel, the great revision took place of capital felonies, and so forth. Buggery, however, was kept as a capital felony, and it remained so until 1861, when the great consolidation of the criminal law took place.
In that year, in the Offences against the Person Act, it was made an offence punishable by penal servitude for life, but with the exceptional provision that the sentence had to be not less than 10 years. So down to 1861 Parliament was treating buggery as an exceptional offence deserving exceptional penalties. The penalty of penal servitude for life, and certainly for not less than ten years, remained until 1891, when there was again a revision—a very beneficial revision—of the criminal law with regard to sentences. From then, any sentence of imprisonment imposed could be for two years only, after which the sentence had to be of penal servitude. Sentences of penal servitude could be for anything between three years and life, unless, of course, a particular offence carried a maximum of fourteen years or seven years. But no minimum sentence was provided.
Your Lordships are now being asked to give a Second Reading to a Bill which wipes that away and does not distinguish between that offence and the offence of gross indecency, which came into existence almost, one may say, by accident. In 1885, the Criminal Law 665 (Amendment) Act was before Parliament. That was the Act which, following on W. T. Stead's great campaign, generally known as the Maiden Tribute to Modern Babylon, was introduced to protect young girls. It is under that Act that so many prosecutions are now brought. No Assize or quarter sessions goes by without there being prosecutions for carnal knowledge of a girl under 16. That was the Bill where, on the Report stage (no one had discussed any homosexual offences before then), Mr. Labouchere managed to get a clause inserted which dealt with the offence, as it is now called, of gross indecency. I quite agree that prosecutions for that offence might deserve a great deal of consideration now. The extraordinary thing is that if you consult Hansard you will find that that clause was accepted without any discussion at all, except as to whether it was competent to be put into the Bill because the Bill dealt simply with women and children. The Speaker ruled that it was, and so that matter went in really without any discussion in Parliament at all.
Believing as I do that the Wolfenden Committee did useful work, I think I have to approach this subject with the view of the Wolfenden Report that homosexuality is not the result of a disease or of any illness or anything of that sort. You have to take those who practise it as being as responsible as any others who come before the courts.
There is one thing the Wolfenden Committee did not deal with and did not even mention in their Report; and it is something, I think, which would be greatly assisted if this Bill goes through. There is no judge who has to go on circuit, as I did for many years, who does not from time to time find that in various parts of the country—in quite different parts of the country—there are what are generally referred to among the people who practise these things as "buggers' clubs" or associations or coteries of people who are given to this particular vice. They are often careful to see that they keep out young boys, because they know that they get very heavy sentences if they are found out; but at these coteries of buggers, the most horrible things go on. As a judge, one has to sit and listen to these stories which make one feel physically sick.
666 If this Bill goes through, so that buggery is no longer a criminal offence provided it is done in private and with no boys concerned, then it will be a charter for these buggers' clubs. They will be able to spring up all over the place. I can assure your Lordships that it is a very real risk. I remember once, when I was on circuit in Suffolk, that I had 16 people in the dock at the same time. None of these men would have been guilty of a criminal offence at all if this Bill had gone through. If you had seen them, perhaps your Lordships would have agreed that they ought to have been put out of circulation. I hope that this Bill will not go through; though it may be—and I think it very likely—that some amendment of the law or some changes will be made.
I should now like to say a few words about blackmail. It is always said that these acts facilitate blackmailers. Let us suppose that this law goes through. Have we come down to such a state in England that a threat to expose a man to his friends as a bugger will have no effect? May not the blackmailer threaten to expose a man, not to the police, but to his friends and to decent society—and I am thinking of all ranks of society—so that he will be ostracised from decent society? They will not have buggers. I do not think, therefore, that blackmail need enter into our considerations at all. Blackmail can exist now, with the law as it is; and it is certain to exist with the law as it is to be.
Another point is that family life will run a serious chance of deterioration or break-up. If it is known that there is a bugger in the family and that he cannot be dealt with, one need not wonder very much at what will happen. I hope that this Bill will not be read a second time. It may be that another Bill dealing with some aspects of this matter might commend itself to your Lordships. I am simply dealing with this one Bill which, to my mind, carries out a most undesirable revolution in criminal law.
§ 4.34 p.m.
§ LORD BOOTHBY
My Lords, I am sure that I am expressing your views when I say how much we welcome and appreciate the intervention of the noble and learned Lord, Lord Goddard. If, when I reach his great age and 667 experience, I can deliver a forthright speech, without a note, and one which is absolutely perfect of its kind, I shall be very satisfied. In fact, I feel rather like I did on the occasion when I made my maiden speech in the House of Commons, when I had to follow Mr. Lloyd George, then at the zenith of his powers. It is an unnerving experience for anybody, on a subject like this, to follow the noble and learned Lord, Lord Goddard. My only excuse for doing so is that I was to some extent responsible for getting the Wolfenden Committee set up.
In February, 1954, more than eleven years ago, I made a speech to the Hardwicke Society on this subject which received a good deal of publicity in the Press, and attracted the attention of the Home Secretary who, at that time, was Sir David Maxwell-Fyfe. I concluded this speech by saying:I am well aware that this is not a popular cause … Nevertheless, I believe that the magnitude of the problem and the amount of avoidable suffering that is now being caused demand that it should be faced. That is why I am asking for the appointment of a Royal Commission, or some similar authoritative Inquiry to furnish Parliament with the expert knowledge and guidance which are necessary for appropriate legislation and administrative action.I followed this up with a Memorandum to the Home Office. And this, in turn, was followed by a correspondence with the then Home Secretary (who I am delighted to see in the House), which resulted in the appointment of the Wolfenden Committee. In his final letter to me, Sir David Maxwell-Fyfe (now the noble and learned Earl, Lord Kilmuir) said that he had decided to appoint a Departmental Committee "after anxious reflection"; but that, having reached this decision, he was determined to appoint the strongest Committee he could find. That he certainly did! The Wolfenden Committee was appointed in August.
In the public discussion that has inevitably followed publication of the Wolfenden Report, an element of quite irrational emotion has frequently impinged, no doubt because, as Dr. Edward Glover has said,The greatest obstacle to an objective understanding of sex problems lies in the moral prejudice, either conscious or unconscious, of the observer.668 I regret this because I believe that the approach to this problem should be neither emotional nor passionate; but severely practical; and I think that in saying this I shall carry the noble and learned Lord, Lord Goddard, with me. The question we have to ask ourselves is: What ought now to be done in the public interest? At this point, and on this point, I hope your Lordships will forgive me if I trot out an old hobbyhorse. The longer I live, the more convinced I become that Scotland is, in many respects, a much better and a much more sensible country than England. Above all, Scottish law, which is based on Roman law, is immeasurably superior to English law. There is no evidence that homosexuality is less prevalent in Scotland than in England; yet, in the words of the Wolfenden Report:…the number of men prosecuted in Scotland for homosexual offences committed in private with consenting adult partners is infinitesimal in comparison with the number so prosecuted in England and Wales.Indeed, in Scotland, it is hardly a problem at all.
Why is this, my Lords? Because they are prosecuted "in the public interest" by the Procurator-Fiscal, and only in the public interest; because all cases in which the alleged offence is more than six months old must be referred to the Crown Office before proceedings can be taken; because the standard of proof required by the law of Scotland is higher than that in England—for example, the uncorroborated evidence of a single policeman is not sufficient; and, finally, because over all stands the majestic figure of the Lord Advocate, whose agents the Procurators-Fiscal are, appointed by him, and who remains, at all times, in firm control of the whole situation. In every case the overriding consideration in Scotland is the public interest. And, to quote the Wolfenden Report,Since no obvious public interest is served in the prosecution of stale offences, it is most unlikely that proceedngs in such cases would be instituted in Scotland.By comparison (I hope that the noble and learned Earl, Lord Kilmuir, and the noble and learned Lord, Lord Goddard, will forgive me when I say it; but I believe it to be true), the English law, as at present administered, can be described only as a chaotic mish-mash. There is no uniformity of practice; there 669 is no uniformity in the sentences imposed upon those convicted of homosexual offences. Chief constables—and there are dozens of them—can prosecute or not, according to their own personal whim or how they are feeling when they get up that morning. There is no obligation on them to have regard to the public interest; and the Director of Public Prosecutions has no power to enforce his request for consultation.
The law as it stands, and as the noble and learned Lord, Lord Goddard, pointed out, derives from the ecclesiastical doctrines of the Middle Ages, and therefore from the Israelites, with the inevitable emphasis upon the reproduction of a race struggling for survival against overwhelming odds. Solomon could have a thousand wives, but homosexuality in Israel was punished by death. So, as Lord Goddard has reminded us, it continued in this country: death in the Ecclesiastical Courts until the reign of Henry VIII; death again by a Statute of 1533, which was repealed in 1547 and 1553, but reenacted in 1548 and 1562.
But, my Lords, the law we are considering this afternoon, directly as a result of the noble Earl's Bill, is Section 11 of the Criminal Law Amendment Act, 1886; and that, I would remind my noble and learned friend Lord Kilmuir, was very much less than 400 years ago. Upon this, it seems to me, the final authoritative word has been said by Sir Travers Humphreys; and, for the sake of the record, I propose to quote it in full. It will not take long, because I shall read it very fast, and then hand it in to the Official Reporters. This is what Sir Travers Humphreys said:Until that Act came into force, on January 1, 1886,"—he was referring to the Criminal Law Amendment Act—the criminal law was not concerned with alleged indecencies between grown-up men committed in private. Everyone knew that such things took place, but the law only punished acts against public decency and conduct tending to the corruption of youth. The Bill in question, entitled 'A Bill to make further Provision for the Protection of Women and Girls, the Suppression of Brothels and other purposes', was introduced and passed by the House of Lords without any reference to indecency between males. In the Commons, after a Second Reading without comment it was referred to a Committee of the Whole House. In Committee Mr. Labouchère"—670 an eccentric gentleman—moved to insert in the Bill the clause which ultimately became Section 11 of the Act, creating the new offence of indecency between male persons in public or private. Such conduct in public was, and always has been, punishable at common law. There was no discussion except that one member asked the Speaker whether it was in order to introduce at that stage a clause dealing with a totally different class of offence to that against which the Bill was directed. The Speaker having ruled that anything could be introduced by leave of the House, the clause was agreed to without further discussion, the only amendment moved being one by Sir Henry James with the object of increasing the maximum punishment from 12 to 24 months, which was also agreed to without discussion.It is doubtful whether the House fully appreciated that the words 'in public or private' in the new clause had completely altered the law; but as soon as the Royal Assent had been given and the Act was published, there began a spate of correspondence in the newspapers, both legal and lay, and references to the subject on various public platforms, which were duly reported. A learned Recorder dubbed it 'The Blackmailer's Charter'; and an eminent Q.C. prophesied that juries would refuse to convict where the alleged acts were in private and not visible to any member of the public. On the other hand those interested in the welfare of girls welcomed the Act as a whole so warmly (and indeed it was an excellent Act, apart from Section 11), and it was so clearly impossible to do anything except let the law take its course, that after a few weeks the clamour died down and the public interest became centred upon some more savoury topic.I think it is important to get those words into the OFFICIAL REPORT, because I do not think they can be challenged; and the main object of the noble Earl's Bill this afternoon is to delete what has become known as the Labouchere Amendment to the Act of 1886.
My Lords, I do not propose to traverse again the ground that has been so well covered in the Wolfenden Report. I am content to say that I agree with paragraphs 13 and 14, and particularly with the Committee's statement:It is not, in our view, the function of the law to intervene in the private lives of citizens, or to seek to enforce any particular pattern of behaviour, further than is necessary to carry out the purposes we have outlined.There is a sharp distinction to be drawn—and I think that in saying this I may carry the noble and learned Lord, Lord Goddard, with me—between conduct which may be held by some to be sinful and conduct which ought to be held by the State to be criminal. Promiscuous fornication, adultery, Lesbianism and 671 prostitution, as such, are not criminal offences. Yet many believe that they are greater social evils than homosexuality between consenting adults in private. There are certainly strong arguments which can be adduced in favour of this view. If this is to remain a criminal offence indefinitely, then the others should be made criminal offences, too; and all should be enforced, because, as has been admitted to-day, the present laws regarding homosexuality are not in fact enforced, except sporadically and without uniformity, and therefore with very little justice; and I say to noble Lords who propose to vote against this Bill, "If not, why not?" In my submission—and it is a view I have long held—the law should provide for the appropriate punishment of those who are guilty of the seduction or attempted seduction of youth, of violence in any shape or form, of importuning, and of acts of indecency committed in public. And there the law should stop.
Before I sit down I should like to make one comment upon what the noble and learned Lord, Lord Goddard, said on the subject of blackmail, which I think everybody will admit is the ugliest consequence of the law as it now stands. Mr. Montgomery Hyde has quoted the late Lord Jowitt as having said that 90 per cent. of blackmail cases were homosexual, and that it was obvious that there is a class of persons who are carrying on business as homosexuals and making a living out of blackmail. That I believe to be true, but I am content to rely on the comment of the Wolfenden Committee:We know that blackmail takes place in connection with homosexual acts … At the least it is clear that even if this is no more than one among other fields of blackmailing activity, the present law does afford to the blackmailer opportunities which the law might well be expected to diminish.There is only one protection and only one remedy for this, and that is a change in the law. I agree completely with the noble Lord, Lord Stonham, that ultimately we are faced with a straight choice between acceptance and rejection of the main Wolfenden recommendation. There is no compromise.
My Lords, I have done. I want to say only one thing more before I sit 672 down. This Bill, as the noble Earl who introduced it said, is not definitive or final in form. If I thought it was, I could not vote in favour of it. I agree with a great deal of what my noble and learned friend Lord Kilmuir said, and also what the noble and learned Lord, Lord Goddard said. If we pass this Bill we shall be dealing only with the main but vital recommendation of the Wolfenden Committee. If your Lordships pass it, the other recommendations will have to be taken into account by the Government, including the important question of the Services, and also the questions raised by the noble and learned Lord, Lord Goddard.
I regard this Bill as simply a question, put to your Lordships directly, on whether you think that some reform of the law regarding homosexuality is necessary or not; and I believe that, in saying this, I carry the noble Earl, Lord Arran, with me. He is not saying that this Bill is the last word, the only word on the subject, but is merely asking your Lordships to give a vote to say whether or not you think reform is necessary. It is a great responsibility, because the Government have, in fact, disclaimed responsibility, and thrown it upon the shoulders of Parliament. I make no complaint of this, but it does not often happen. Parliament has, of course, the ultimate responsibility and power; but it is seldom that a straight decision of this kind is referred by the Government of the day to Parliament.
Mr. Henry Brooke said on television the other night that, as Home Secretary, he did not like having to administer the present law, but that he thought that public opinion was not yet ready for a change. My Lords, I do not think we can really tell; at any rate, not without a plebiscite, which is alien to our practice in this country. Public opinion may be ahead of us or it may be behind us, or it may disagree with us—we do not know. What we do know in our hearts is that a change of some kind in the law is bound to come. Some noble Lords may not agree, but, in my opinion, it is overdue. If we say, "No", to the principle of such a reform in the law—and that is what we are being asked to vote about to-day: I am sure that the noble Earl will concur—it will simply mean that the miasma of misery, squalor, tainted 673 evidence, robbery and blackmail, which darkens the lives of too many people, who in other respects are good and often valuable citizens, will continue for a few more years or months. Therefore, it is my sincere hope that your Lordships will give the leadership and show the courage for which the right reverend Prelate the Lord Bishop of Southwark pled so eloquently in the recent debate on the noble Earl's Motion.
§ 4.51 p.m.
My Lords, we have listened this afternoon to a great many excellent debating points, and before I go on to the question I would add my congratulations to those already given to the noble Marquess for his courageous and excellent maiden speech. I know that it is a difficult thing to do and I am sure that we are all agreed that he made a very fine job of it.
We have heard this afternoon that what is wrong when done in public is right when done in private. What is private and what is public is very difficult to say, as I think some of the legal pundits would confirm. We have also heard that what is wrong in the Services, and is to be preserved as a wrong in the Services, is perfectly right in civil life. The question will have to be decided whether what takes place when two servicemen are on leave or between one serviceman on leave and a civilian is wrong or right. That is a nice question for the Adjutant General to answer. We have heard, also, that this Bill has no effect whatsoever on young people and that everybody is desirous that young people should be protected. I find it very difficult to believe that young people will be protected by allowing their elders to do things which they are not allowed to do, things which are not criminal for their elders but wrong for them.
I hope that your Lordships will bear with me for a moment while I quote part of the concluding paragraph of the Memorandum produced by the Standing Conference of National Voluntary Youth Organisations:We are bound to uphold the position that our young members must be protected against sin and perversion and must also he fortified to overcome them if they meet them.After giving details of the different influences which fortify them, the Memorandum says: 674The legal question should in our view be seen against this background".This conclusion must surely be acceptable to your Lordships. Paragraph 58 goes on to say, after speaking of the anxiety felt by some witnesses who appeared before them that the proposed changes in the law would indicate a degree of tolerance by the Legislature of homosexual behaviour:It may well be true that the present law deters from homosexual acts some who would otherwise commit them and to that extent an increase in homosexual behaviour can be expected.The real argument in other words, is: never mind if we have an increase in homosexual behaviour; it is all in the good cause of making it easy and respectable for those who have already fallen into those habits to carry on and gather to themselves a number of other young people as well. That is the real argument. But is it really the case that what the right reverend Prelate called the change in public opinion desires that the innocent should always have to suffer for the guilty? I know that at the present time it is fairly widely held that those who are guilty must be protected from the consequences of their guilt, even though it may mean that much greater difficulties will have to be met by the innocent.
These are difficult times for young people. They are living in a world where standards have fallen to a level which has not existed for perhaps many decades, and we can see no end at present to this fall in standards. Many people are trying to fortify those standards. Can we believe that the acceptance of this Bill, which will inevitably lead to an increase in homosexuality, is not going to sway over to the other side some of those who, although they may have the inherent tendency, are by self-discipline and by strength of character standing out against accepting those standards? Are they not going to be led into thinking that the battle is not worth the candle and give way, and then suffer that loneliness and sense of guilt which we are told are the lot of the homosexual? I beg the House to give this Bill no Second Reading to-day, but to think of the generation that is growing up and help them to live decent and honourable lives.
§ 4.58 p.m.
§ LORD FRANCIS-WILLIAMS
My Lords, I rise to support the noble Earl's 675 Bill. I do not propose to take much of your Lordships' time. The ground has been well covered. It was excellently covered in the earlier debate, in which I expressed my own views. But I should like to ask your Lordships to consider what exactly we are about to do to-day. Either we agree that some reform is necessary and pass this Bill, or else we must in honesty say that we believe that the existing law is right and it should be implemented with much greater force than it is at present. We cannot go on as we are doing, just pretending in a great number of cases that the present law does not exist, whittling it down all the time by administrative practices, while leaving it there as a weapon which can be used by the blackmailer if he gets the opportunity.
§ LORD FRANCIS-WILLIAMS
I entirely agree—with capriciousness, so that nobody knows where it is going to fall or when.
We were told by the noble Lord, Lord Stonham, that the estimated number of homosexuals, according to the best available estimate, is about half a million. If we are believers in the present law, are we going to implement that law against the whole of that 500,000, the largest criminal class in the community? And if so, are we going to turn our prisons into homosexual ghettoes or homosexual brothels?—because that is what the result will be. We have to face up to the facts of the situation. The fact is that the whole trend of public opinion and official opinion is against implementing the law to the full extent, and, indeed, that to try to implement it would be absolutely unworkable. When you reach such a condition, apart altogether from the question of morality which I believe arises in this instance, the only sensible and practical thing to do is to look at the law, revise it and have a law which is both acceptable and workable. What this House is being asked to do to-day is to make an amendment to the law which will make the law acceptable and practical.
Here I should like to express my shock and horror at the picture of British society which apparently exists in the 676 minds of the noble and gallant Viscount, Lord Montgomery of Alamein, the noble Lord, Lord Rowallan, and, to some extent, the noble and learned Earl, Lord Kilmuir. We were told by the noble and gallant Viscount that, if there were a change in the law, university graduates, undergraduates and school children would immediately become aware that all their masters and tutors were busily engaged in homosexual practices and would want to rush and join them. And he even went on to tell us that, if this situation were allowed to exist, men in the ranks in the Army would become aware that their officers, also, were busily spending their time on these practices. We are told by the noble Lord, Lord Rowallan, that it is necessary not to pass this Bill, because, he says, with, so far as I am aware, no evidence whatever to support his statement, standards have fallen in this country to the lowest level for decades.
My Lords, I should have thought that the noble Lord, being connected with the Press, would know what the Press have said in recent years about the lowering of standards among the young people of the country. It is admittedly a small proportion, but it is a proportion which does a great deal of damage to our public life.
§ LORD FRANCIS-WILLIAMS
If the noble Lord knew as much as I do about the Press, he would not so eagerly seize on what they say in their wilder moments.
§ LORD FRANCIS-WILLIAMS
Can it really be suggested that the standards of the youth of this country are falling, falling, falling, in this horrifying fashion? Can it be suggested that if an alteration of the law as is now proposed were to take place we should have an immediate rush on the part of tutors, lecturers, professors and Army officers into a sort of mass buggery? All the evidence suggests that those who are affected by homosexual tendencies are so affected for physical and psychological reasons, of which we do not know the cause and for which we do not know the cure; and that, on the whole, when they have reached the age 21 and beyond they are, poor, unfortunate, creatures, 677 set in their habits and cannot change them: and they cannot change them because we do not know whether there is any cure or any way in which this condition can be altered.
We have to legislate in the world as it is; in a world in which the vast majority of people follow ordinary normal sexual lives, and only a comparatively small unfortunate minority is homosexual: a world in which, so far from these terrific pictures of this sudden rush to homosexuality being to any extent true, the total number is unlikely to change at all. We are concerned to make a law that is just and workable. The present law is neither. What it does, I would say to those who are worried about the effect on youth, is to make homosexuals a sort of secret society, which sometimes has a glamorous appeal to the unbalanced young. I believe that we should bring it into the open and be prepared to legislate for it sensibly, and that is why I hope the House will support this Bill.
§ 5.5 p.m.
§ THE EARL OF IDDESLEIGH
My Lords, I have a real series of surprises. My first surprise is with regard to the procedure which the noble Earl. Lord Arran, has seen fit to adopt in this matter. In the first place, the noble Earl put down a Motion for Papers. If he had wanted to get a verdict of the House on the desirability for some reform of the law on this subject, I cannot conceive why he did not put down a Motion:That this House approves the recommendations of the Wolfenden Report.He could then have had a straightforward vote of the House. I think it would have been wiser, as well as more straightforward, if the noble Earl had adopted that course. Instead of that, the noble Earl put down a Motion on which we could not possibly vote with any sense at all; and now he has introduced this Bill. And what a Bill! This Bill is first of all put down for Tuesday, and then, at the request of the noble Earl, put forward to Monday.
THE EARL OF ARRAN
My Lords, I really must interrupt. That is simply not true. I was asked by the Whips to put it back one day. I had no such wish. It caused great inconvenience, particularly to the Lords Spiritual. Further- 678 more, the noble Earl said that it would have been more straightforward to put forward a Motion. I couched my first Motion in the most vague 'terms because I wanted to test the feeling of the House. The feeling of the House, as I thought, having been obtained, it seemed to me appropriate to bring forward a Bill as early as possible. Why I did so was explained by the noble Earl the Leader of the House—because the other place were voting on this subject on Wednesday and I thought it appropriate that we should give a lead. I must put the noble Earl right on those points.
§ THE EARL OF IDDESLEIGH
I accept, of course, what the noble Earl says. That brings me to my next point: this strange constitutional doctrine that we must always give a lead to another place. This seems quite novel to me, and I doubt whether Members in another place would find it very acceptable. I believe it is the first time that the House of Lords has regulated the course of its business with reference to a Private Member's Bill in another place, of which officially we can know nothing. I have a different view of our duty. I would say it is our duty very carefully to consider all possible aspects of a matter before we vote on it, and still more before we legislate on it.
Five years ago my noble friend Lord Butler of Saffron Walden, then Home Secretary, announced that he was setting up an Inquiry under the auspices of Birkbeck College, in which Mr. Schofield was to be engaged under the direction of Professor Rogers. We heard on May 12 last from the noble Lord, Lord Stonham, that their report was nearly ready for publication and would be published later in the year. That fact makes it very hard to understand the urgency and hurry of the supporters of this cause. Why do they not give us an opportunity of reading the conclusions of Mr. Schofield? Most of us—and I am one—know comparatively little of this subject. It is not, as the noble Earl, Lord Arran, said, that I do not want to know; it is simply that very little authoritative material outside the Wolfenden Report has been published on this matter.
Even in this debate we have had the most astonishing differences of view regarding the causation of homosexuality. The noble Earl considers that it is entirely a matter of pre-natal influences— 679 that homosexuals are born, and not made. Others consider that it is a hangover from adolescent homosexuality; others again profess, as I do, that there appear to be a multiplicity of causes. I noted that the noble Earl, Lord Huntingdon, himself a member of the Council of the Homosexual Law Reform Association, professed considerable doubts as to the origin of this unfortunate condition in adults. I do not know, but I shall know when this Report is issued. I suggest that we should be wise to postpone any legislation on this topic until we do know.
§ LORD STONHAM
My Lords, if I may mention it to the noble Earl, the Research Committee to which he referred is not going into the causation of homosexuality at all. It is an inquiry into the behaviour of homosexuals and, indeed, non-homosexuals. There is not likely to be any result at all which will tell us about how homosexuals become homosexuals.
§ THE EARL OF IDDESLEIGH
Apparently the noble Lord, Lord Stonham, knows the Report. I do not, and so I must accept what he says. I am sorry that they do not go into the question of the causation of homosexuality, because that seems to be an important and profoundly relevant consideration.
Here we have this Bill, and I must say that I have never before known of a Bill to amend the criminal law with no repeal laws and no definition clauses. Although it is the view of some noble Lords that we are merely passing a Motion that some reform is desirable, it is not thus that I understand the meaning of a Second Reading. I should have thought that a vote for the Second Reading implies that the Bill is a possible one with the reservation that some amendment will be required later on. But in this case it is not a matter of amending the Bill; it is a matter of completely re-writing the Bill. I think that the noble Earl, Lord Arran, should have gone to the trouble of presenting us with a Bill which is capable of proper amendment and does not require, as this obviously does, a complete re-writing.
I have referred to a speech made by my noble friend Lord Butler of Saffron Walden in another place nearly five years ago, on June 29, 1960. In the course 680 of that speech my noble friend asked two questions which seemed to me profoundly relevant. The first question was this:… can someone help me to say how we should define the words ' in private'?"—[OFFICIAL REPORT, Commons, Vol. 625, col. 1493, June 29, 1960.]No attempt has been made in the course of this debate to tell us what "in private" means. I am a mere layman in these matters, but I looked up Lord Jowitt's Dictionary of English Law, and I found that there was no entry under "private" at all. All he dealt with was Private Bills and private chapels. There seems to be no clear legal definition of what "privacy" means. For example, is a club a private place? I do not know the answer, and I have not been supplied with any answer. It will certainly have to be raised in connection with the buggery clubs, of which the noble and learned Earl, Lord Kilmuir, and the noble and learned Lord, Lord Goddard, have spoken.
I must say that it surprised me very much that the witness of those two noble Lords, one of whom was Home Secretary and the other Lord Chief Justice, should be doubted, and there is little that I can add to it. I can only recall that when I was a young man I walked through Soho with a knowledgeable friend who pointed out to me the door of a well known buggery club, and if the noble Earl, Lord Arran, were present I would tell him that the evidence of my then friend who made that statement to me cannot be disregarded, since he was a member of the staff of the Evening News. It is obvious that if we pass this Bill we shall have an increase of these clubs, and we shall have to consider the question whether the club in which men dance with male partners and see the kind of cabarets that homosexuals want to see is, or is not, a private place. We shall have to face similar questions about hotel rooms. Are they private? We shall have to ask difficult questions to which the supporters of this Bill have provided no answer at all.
Then the other question which my noble friend Lord Butler of Saffron Walden asked was:What does 'consenting' mean?" [col. 1493.]I take it that there are two ways in which a man may be persuaded to adopt a homosexual way of life. One of those ways is 681 a close and intimate friendship—a friendship on the lines of David and Jonathan in the Old Testament, in which emotion develops to such an extent that in some unguarded moment a physical expression seems natural and inevitable. Those friendships are, of course, dangerous, but they can be beautiful. It may account for a certain amount of homosexuality in this country. But I know one other way in which a man may be introduced into homosexual habits which is very much less beautiful. When I was a young man I knew two consenting adults who shared a flat together in private. These two men were (or should have been, one would have thought) satisfied in their loving relationship to each other. One of them was not a very young man; he must have been nearly forty. I knew that these men were doing their best to corrupt a third and very innocent young man and to induce the third man to take an interest in homosexual practices. The young man escaped; but not all young men are so fortunate.
I want your Lordships to consider how innocent a young man of 21 may be. He conies, perhaps, from a decent working-class home; he goes to a day school in his local town and goes home every night, unless he is occupied with scouts or a well-conducted youth club. He goes to a local university, still coming home every night. What should that young man know of these forms of vice? His sexual experience is probably limited to holding a girl's hand at the cinema and giving her a rather awkward good-night kiss.
Then he gets a job in London. Let us suppose it is a good job. He goes to London where he knows nobody, where he is desperately shy of the smart London girls. He goes to work and he realises at once that his whole future depends on his immediate boss, his branch manager or whatever it is; one word from this immediate superior and the young man is likely to be dismissed, dismissed from his first job for incompetence. From the point of view of his career that young man would be ruined. Very well. But the boss is favourable to him, pats him on the back, kindly teaches him how to do his work, and one evening asks, "Come and take supper with me in my flat. I am a bachelor, you know, but I think I am a pretty good cook." The boy goes to the flat; he is given réchurché food he has 682 never had before, and he tastes interesting wines and liqueurs. And in the course of that dinner certain suggestions are made to him, interesting ideas that he has never heard of before, given him with all the authority of an older, more cultured, more experienced man. That, my Lords, is what we are now asked to make easier.
§ 5.25 p.m.
§ LORD BRAIN
My Lords, I should like to begin by congratulating the noble Marquess, Lord Queensberry, on his maiden speech. He said some things which I very much hoped would be said, and I do not think they could have been said better. The recommendation of the Wolfenden Committee on which this Bill is based sprang from the view that it is not proper for the law to concern itself with what a man does in private unless it can be shown to be so contrary to the public good that the law ought to intervene in its function as the guardian of that public good.
Much of the debate, twelve days ago and to-day, has quite rightly been concerned with the proviso in that sentence. But the whole proposition, "Do I believe it to be right?" is essentially a negative one, and it is clear that many of your Lordships are in favour of a change in the law for a much more positive reason: that the law as it stands inflicts much suffering which can be justified only if it can be shown to be in the public interest, and that this is not the case; indeed, the way we deal with homosexuality tends to make this social problem more difficult than it otherwise would be.
I approach this question as a doctor. Why should homosexuality concern the doctor? As we have heard, it is not a disease but a disorder of emotional development. Nevertheless, it impinges on medicine at many points. Doctors, and especially psychiatrists, are necessarily concerned with emotional problems, and it is easy to imagine the emotional stresses to which homosexuals are exposed in our present society. But perhaps the most important thing is that homosexuality is not something which is either there or not there. Sexual behaviour is a spectrum. At one end are the normals, the heterosexuals, the large majority of the population; at the other end are the hard-core homosexuals, a 683 very small percentage. But in between there are gradations, people who are in some sense both, perhaps married and with children but with homosexual tendencies which may or may not be given overt expression. These people may be of either sex, and they may have married without realising fully their own natures. Such marriages obviously may create difficult problems and the doctor is often called in as an adviser.
There is another danger to which the latent homosexual, if I may call him that, is exposed. He may succeed in controlling his homosexual impulses until something diminishes his normal self-control. This may be an illness, such as a depression or thickening of the blood vessels of the brain; or self-control may weaken as he grows old, or even as a result of taking alcohol, and then the previously latent homosexual tendency may become apparent.
I mention these facts because the public impression of homosexuality, derived almost solely from the reports of prosecutions in the courts, is quite inadequate and very misleading. There are homosexuals in all walks of life, many of them valuable citizens, and there are many who themselves would regard the kind of offences which bring some of their numbers to court as immoral and vicious. Though it may seem strange to normal people, I think one can say that at the other extreme from the courts homosexuals are as capable as heterosexuals of tender feeling and mutual devotion. But it is a paradox of the present law that it makes stable homosexual relationships almost impossible, for men but not for women, while it clearly cannot prevent, and may indirectly encourage, casual relationships and prostitutions.
Is there nothing constructive we can do? It has often been said that the cause of homosexuality is unknown. That is perfectly true. I do not myself think that it is likely to be known for some time, and even if it were discovered it might well be found that prevention involves the difficult step of educating parents. Is it incurable? Most psychiatrists would agree that the hard core of homesexuals will never be changed. Even if treatment were feasible, most of them would not co-operate in it. But I agree with the note by Doctors Curran and 684 Whitby in the Wolfenden Report. It is wrong to be too pessimistic about treatment. As I have shown, not by any means do all homosexuals belong to the hard core. And there is evidence, as Doctors Curran and Whitby have shown, that psychiatry, including, as they say, a mixture of physical, psychological, social and environmental measures, may be valuable. But it would be much more valuable in a different social setting. When physical homesexual relations are criminal, it is most difficult for someone who has been involved in them to seek help, even from a doctor. Our present system is so concerned with condemning the results of homosexuality that it increases the difficulty of preventing them.
To add to the paradox, the defenders of the status quo claim that any relaxation of the law would make matters worse. To be logical, they should bring in a Bill to give the moral benefit of the present law to women. I have listened to the lawyers with the greatest respect. Homosexuals, whether they are responsible in law or not, are certainly not responsible for their own condition. Justice may be done to them according to law; but I believe those of us who advocate this reform want it because we want a different kind of justice for them as human beings.
§ 5.32 p.m.
§ BARONESS GAITSKELL
My Lords, I, too, should like to add my tribute to the maiden speech of the noble Marquess, Lord Queensberry, and I hope that when he reaches the great age of Lord Goddard he will still maintain the liberal views which he expressed. We have now discussed in depth the Wolfenden proposals on homosexuality which are embodied in this Bill. We have been somewhat discreet about the physiological explanation of this deviation, and I was hoping that Lord Brain, who has just spoken, might enlighten us a little. I myself, having failed my second M.B. examination many years ago, but having dissected the human body, think that all the ramifications of the human nerve system throw some light on the origins of this deviation, when the psychological explanations, good as they are, still leave us rather baffled. In fact, when judging this problem we need to muster all our knowledge of human nature, gleaned from our worldly experience, our 685 reading of poetry and novels, and psychology and philosophy, and, finally, from our own knowledge of ourselves. Only in this way can we begin to piece together the jigsaw puzzle of the human personality when many large pieces do not fit in with our preconceived ideas.
Here, may I refer to the speech of the noble and gallant Field Marshal, Lord Montgomery of Alamein? I think he performed a great disservice to the Forces when he suggested a collapse of morale if this Bill became law. He knows perfectly well that Section 66 of the Army Act ensures that homosexual behaviour, even with consulting adults, is dealt with by court martial. Lord Shackleton pointed this out, but still the noble and gallant Field Marshal did not withdraw.
§ VISCOUNT DILHORNE
My Lords, if I may say so, I will endeavour to deal with that when I come to reply, because I share the view of the noble and gallant Field Marshal, that this Bill overrides that provision.
§ BARONESS GAITSKELL
My Lords, I am not a lawyer and therefore I cannot comment on that. I wish only to point this out, and when we hear the speech of the noble and learned Viscount, I shall then judge on what he says. I rather deplore the views expressed by the noble and gallant Field Marshal about the moral fibre of the young. I think there is too much nonsense talked these days about this lack of moral fibre in the young, and even in the middle aged and the old. Of course, our affluent society has its problems—we know that; but I sometimes wonder whether there is not more crime simply because there are more people. It seems a fairly reasonable explanation.
As for the Armed Forces, and the foundations of morale being only in discipline, I think that this is perhaps too simple a view of morale. The Field Marshal was in brilliant command of millions of men, and he did a wonderful job. I am amazed that he did it with, in a way, so little knowledge of the sex habits of the men under his command. He asked, "How can we maintain discipline if the men know that two officers are committing homosexual practices somewhere or other?" But how can we maintain the morale of the troops when, 686 after all, his men might know that two officers were committing all sorts of heterosexual but undesirable practices somewhere or other?
However, to get back to what I wanted to say in my speech, all our discussions to-day, and those on the last occasion when this matter was discussed, converge mainly on the hazard to our young boys from older men if the laws are relaxed. Many people fear this kind of corruption. But the Wolfenden proposals would strengthen the laws against just this kind of corruption. They would increase the insurance against this risk. As for the idea that, with the relaxation of the laws against consenting adult male homosexuals, there would be a sudden and large defection from heterosexual ranks to join homosexual brigades, surely that is ludicrous.
Those of us who are in favour of tempering the harsh attitude of the law against adult homosexuals and its incidental green light to blackmailers. feel as we do because, among other things, we cannot subscribe to the universal conspiracy of illusions about sex. These illusions snare and lure us into believing that everything about sex begins and ends with boy meets girl. The State does not pry into the private behaviour between men and women, between women and women, but only between men and men. Here, the law is based primarily on feelings of intolerance, disgust and indignation—natural feelings, you may say. But surely our laws are not based entirely on such instinctive feelings. Surely we endeavour continuously to scrutinise our laws and subject them to the light of reason and compassion. When this happens, I submit that many of our feelings of disgust and indignation are transmuted into understanding and tolerance. So, finally, I should like to commend this Bill. Let us amend it in Committee wherever it is necessary; but let us try to influence public opinion—this body of men, with its experience, its knowledge and its ability to think clearly. Let us commend this Bill to the Government.
§ 5.40 p.m.
§ LORD BROCKET
My Lords, once more we have had a very interesting debate. I think that it is an advantage 687 to speak fairly late in a debate of this kind when one has heard the opinions of noble Lords and noble Ladies from both sides of the House. I do not want to have an argument with the noble Baroness, Lady Gaitskell, but I should say that the noble and gallant Viscount, Lord Montgomery of Alamein, knew far more of what was going on in the armies which he commanded than Lady Gaitskell might have known in those days. I will take it from him that he really did know about these things and that he also knew the risks which might be run. Speaking of the Army, I was very interested to hear the ex-Lord Chancellor, Viscount Dilhorne, say that if this Bill were to become an Act it would override the Army Act. I am only a non-practising barrister but I, also, thought that that would be correct. I shall look forward to hearing the noble Viscount recount his views on that subject.
We have heard this afternoon a very remarkable speech from Lord Montgomery of Alamein. We have also had a speech from the same side on which I find myself by the noble and learned Earl, Lord Kilmuir. Lord Kilmuir I regard as being an expert on this particular aspect of the law. Not only was he Home Secretary for a number of years, but he graced the Woolsack of this House for a considerable number of years. If I were a Peer coming to the House to-day with no preconceived views one way or the other, I would lay great store by what Lord Kilmuir said on this subject.
We then had the very remarkable speech (a speech, as has already been said, delivered without a note) of the late Lord Chief Justice, Lord Goddard. He, again, is a person who has had great experience on this subject. Both he and the noble Earl, Lord Iddesleigh, spoke about these clubs which are so unhappily named "Buggers' clubs." I must say I shall take it from them that these clubs exist, although, so far as I am concerned, I have not heard so much of them as they have. Then again we had a speech from the noble Lord, Lord Rowallan, late Chief Scout, who has been interested in looking after the morals and interests of Scouts for so many years. I cannot help feeling that the evidence which all these noble Lords have put forward would convince 688 the ordinary Back Bencher, because they founded their evidence on fact.
The noble Lord, Lord Brain (who is not here at the moment), an eminent doctor, has confirmed what I have always heard about homosexuals. He used the term that I use; that is to say, the different colours of the rainbow are applicable as analogy. At one end one gets somebody who is born a homosexual and has homosexual views altogether; at the other end one gets the heterosexual; in between one gets the different colours of those people who may be convinced one way or another. I feel that a good many of those in the middle of the spectrum will be influenced by what I call the deterrent of the present law as it stands. I feel that, if Lord Arran's Bill becomes law, these young boys, when they become 21, may very well say, "Now we are 21, everything is all right. We can do this to our heart's content." I think it is a very serious matter and it would be a very reprehensible thing if that encouragement were given to them.
I noticed that the two Archbishops, during the last debate on Lord Arran's Motion (and also we have had a speech from one right reverend Prelate this afternoon) were in favour of Lord Arran's Bill. I should not like it to be thought that the Church of England as a whole supports these two Archbishops and other Bishops. I happen to be an ordinary member of the Church of England. I am a church warden at my own church, and since I made my few remarks the other day I have had many letters from, and opinions expressed by, members of the Church of England who are not in agreement with their leaders on this subject. I had a letter from a vicar, the Reverend S. G. Newson, in which he referred to blackmail. I was interested the other day, shortly after our previous debate on this subject, to watch an I.T.V. programme on homosexuality. A well-known Member of another place when talking about blackmail got so excited on the subject, saying what a terrible thing it was and that the law on blackmail should be changed, that he actually called it "blackballing" and not blackmail. That may have happened at a club, but I hope that is confined to clubs.
People take this subject very seriously from both sides. I should like to read an extract from the letter written by the 689 vicar whom I mentioned, on the question of blackmail. In the second paragraph of his letter he says:Then again we are told that if the above became legal, it would reduce blackmail. To the contrary—it would multiply blackmail over and over again and a much worse kind of blackmail. It would not be blackmailing the guilty for money. It would be blackmailing the innocent for sin. In our dictionaries we are told that 'blackmail is extortion through intimidation '. There are many employers of labour that are not Christian men, they have dirty minds, but are kept within certain bounds through fear of the law. Remove that fear and they will try to extort consent through intimidation, namely threatening unemployment if consent is not given … If our national laws with regard to women are not satisfactory, by all rightful means, let us rectify them, but that is no reason why our present laws governing the behaviour of the men should be altered—laws which have made the Englishman honoured and respected throughout the world.That is the opinion of an ordinary vicar.
I also received a letter from a doctor on this subject. The doctor, Dr. C. G. Learoyd, says:The Bishops' picture of the homosexual as a person persecuted by society for something which he cannot help, a poor hunted martyr, is false. Most of the ones I have dealt with are very pleased with themselves, scornful of the normal person, and have not the slightest intention or desire to change. They are nearly all promiscuous; a long partnership between males is rare. Most of them admit that boys would not be safe with them.There are these matters of opinions one way or another. I feel that this is one of the most serious debates we have had in your Lordships' House for many years. I feel that it is not right to say that homosexuals are born and not made. Some may be, and some are not. It is like theft. Others are tempted to do this, and I feel that if all the deterrents were removed theft would increase. Speaking about theft and crime in general, and thinking of words of an ex-Prime Minister, I say we have never had it so bad. There is now more crime in this country than there was, and certainly a greater percentage of crime. It is partly due to inflation. The fines which used to be considered a deterrent many years ago are now a very small proportion of the week's wages which teenage boys and girls may earn. Frankly, I consider that the deterrents for crime in general should be made greater, not less.
690 I do not intend to take up your Lordships' time very much longer, but I feel that the House of Lords is regarded as the highest legal court in the country. To-morrow we shall be discussing the War Damage Bill arising from a decision of the House of Lords. I will not anticipate discussion on that Bill, but will merely say that the House of Lords is the highest court in the country and many people all over the country think of the House of Lords as a very high moral court. I should not like the results of the Division to go out to the country and be interpreted by many people as showing that the House of Lords approves of homosexual conduct—in other words, to put it very vulgarly, that the House of Lords is in favour of buggery.
§ LORD JESSEL
My Lords, I will be brief. I rise only because I think all of us who supported my noble friend Lord Arran in the debate on May 12 should show to-day that on that occasion we were serious and meant what we said when we advocated a desire for a change in the law; and therefore we should vote for the Second Reading of this Bill to-day. I have heard nothing to-day that has altered my opinion in that respect.
As I see it, quite simply, this Bill takes out of the criminal law offences between consenting males in private. Whether the Army Act is affected, I am not quite sure, and I look forward to the views of the noble and learned Viscount, Lord Dilhorne, on that subject but, in any case, if it is so I do not think it affects the main issue. I think we can look after that matter by amendment, if it is considered necessary. It seems to me that the only possible argument against this change in the law was really put by the noble Lord, Lord Brocket, just now, and it is well summed up in an article in this week's New Statesman. The argument goes like this: that if we stopped punishing private homosexuality we should be telling young boys that it had become lawful and that they could now start. I do not believe this, nor did twelve out of thirteen members of the Wolfenden Committee; in fact, they thought exactly the opposite.
The noble and gallant Viscount, Lord Montgomery of Alamein, seemed to think that people who wanted to be homosexual were inherently wicked. I feel 691 sure that he had a good many homosexuals under his command in the war who were just as brave and just as good soldiers as the others.
§ VISCOUNT MONTGOMERY OF ALAMEIN
My Lords, may I intervene? I think the noble Lord said that I had said that people who were homosexual wanted to be wicked. I never said that.
§ LORD JESSEL
My Lords, I am sorry if I misquoted the noble and gallant Viscount. I still think that my second point is valid: that he must have had some homosexuals under his command who were just as brave and just as good soldiers as the heterosexual ones.
§ VISCOUNT MONTGOMERY OF ALAMEIN
I have been told by the noble Baroness that I did not know what was going on under my command.
§ LORD JESSEL
The noble and learned Earl, Lord Kilmuir, seemed to me to say that from his long experience of the law he knows better than Wolfenden. He may do, but those of us who have read the Wolfenden Report with some care happen to prefer their conclusions. We have heard in this House from the Church, and through the very interesting and understanding speech of the noble Lord, Lord Brain, we know that the doctors are sympathetic to this Bill. I think that this is a great chance for us to give a lead to public opinion and to show that we are not the stronghold of reaction which we are supposed to be.
§ 5.54 p.m.
THE LORD BISHOP OF SOUTHWARK
My Lords, as I have listened to the debate this afternoon there have seemed to be three arguments against what has been proposed by the noble Earl, Lord Arran. Two of the arguments are rational and demand consideration. The third argument is, I think, irrational.
The first argument goes like this. None of us likes the present law. Indeed, the noble and learned Lord, Lord Goddard, in a speech which commanded the attention of this Bench, suggested that a change is desirable in some respects, but that, even so, we must be careful to do nothing which might suggest that we are licensing viciousness. This is no new argument. It has been used time and time again whenever a change in the law on public affairs has been suggested. We on this Bench have been as ready as any of your Lordships to use this argument. To give but one example, when, in 1810, there was a proposal in this House to abolish the death penalty for stealing property worth less than 5s., seven Bishops helped to bring about the rejection of the Bill, not because they favoured hanging but because they thought that a change in the law would imply that the Government had ceased to have a regard for the sanctity of private property. Thus it was that, within a short time of that decision by the Bishops and other Members of this House, a child of under ten was condemned to death for stealing twopenny-worth of paints.
I suggest that we should not deceive ourselves as did our predecessors. To argue that we are licensing viciousness is an unworthy argument. It casts a reflection on the intelligence of ourselves, as legislators, and of the people of this country. Moreover, if it should be assumed by anybody that we have become indifferent to the well-being of the young or the security of the Forces, we have the opportunity in the Committee stage to make our purposes clear. Indeed, I agree with the noble and gallant Viscount, Lord Montgomery of Alamein, that it would be most undesirable if discipline were so lightly regarded that officers disregarded the customary conventions. But that applies to officers of both sexes and between both sexes.
693 The second argument which deserves serious consideration is that by removing existing prohibitions against the private behaviour of homosexual adults we are weakening social support for morality. But surely, my Lords, in the sphere of personal behaviour morality means freedom to choose between right and wrong in the context of personal responsibility. Male homosexuals, unlike adulterers, fornicators and Lesbians, do not have freedom at this moment. For them the law provides not morality but something less, because it draws no distinction between public and private behaviour or between sexual acts committed between adults or with minors. All are equally criminal. Not only is the existing law immoral in this negative sense; it is immoral in a positive sense, leaving a trail of unhappiness and sometimes tragedy, not only among those homosexuals whom it directly affects, but also among their families, parents and friends.
I wonder whether those who theorise about the rôle of the law in upholding moral standards in this matter have ever had to deal with its results in shattered lives. It is right that your Lordships should ponder the advice of a soldier and of a judge, but I hope—and I say this with humility—you will ponder also the experiences of the priest and the pastor. For more than a quarter of a century, both in the confessional and in my study, I, like my brother Bishops, have listened to the tragedies and heartbreak of weak human nature. I gave your Lordships two illustrations two days ago. I could give the noble and gallant Viscount illustrations from men who, under his leadership, gave of their best to the Forces and died in the service of their country, and yet were faced with this grave problem in their own lives. I could also quote from a case which came to my notice only this morning, of a young man who has spent out over £3,000 to blackmailers over the past nine months; who is having to work seventeen hours a day to keep body and soul together while meeting their demands; who is far too terrified to take the advice of the noble Lord, Lord Stonham, and report his plight to the police. These cases come to the priest time and time again, and we inevitably think of them from the point of view of what we can do to help 694 them to integrate their lives usefully into the life of the society.
The third point to which I would draw your Lordships' notice—and it is an argument which seems to me to be quite irrational—is that based on the revulsion which people feel at the behaviour of the homosexual. Many who want the law changed share this revulsion, but surely no one seriously believes that everything which he personally feels to be unpleasant or disgusting should, for that reason, be a crime. The fundamental point at issue here is not whether we can or cannot stomach the thought of this or that type of sexual behaviour: it is whether or not we believe that true morality, and the best way of cultivating personal responsibility, is to be found through freedom or through compulsion, and whether or not we believe that the present law on this subject does more harm than good.
My Lords, it is the opinion of many of us on this Bench that the law as it stands is one of the most misguided, the most vicious and the most evil in its consequences of any law upon our Statute Book. And when I say "on this Bench", may I make it quite clear, in view of what was said recently by one of the noble Lords, that I am not referring just to a few Bishops in this House. When the Wolfenden Report was disccussed by Church Assembly, that was the opinion of all three Houses in the Church Assembly. It is the considered opinion of Bishops, priests and laity in the Assembly which has been set up for this purpose, so that the Church can express its considered view upon social matters. So when the right reverend Prelate the Lord Bishop of Chichester, and, on the last occasion, the most reverend Primate and I myself to-day, urge this House to support a change in the law, we know that we are doing this with the full support of the Assembly of the Church of England—allowing, of course, for the minority view.
My Lords, as I conclude, may I once again reiterate what I have said earlier? We on this Bench are burdened with the sense of difficulty that comes to us in our pastoral task. If only you could join with us in that! I can see the difficulty from the point of view of the judge, the person who is in a position 695 of discipline. I can see the extreme difficulty that comes his way. But try to see it from our point of view. I am not appealing to sentiment: I am appealing to reason. Here are people who are born like this, who become like this. We must try to help them. Time and time again, as one has heard their story, one has been, to put it frankly, revolted. But let us also be honest. In the confessional, time and time and time again I have been equally revolted by the confessions I have heard of heterosexuals. But, even then, whatever my reaction has been, I have said, "I am a pastor, and it is my job to help, so that they may win back their self-respect and play their part usefully in society".
The other thing that I have to say, my Lords, as a pastor (I know that I am being very frank, but here I speak [...] the Bishops' Bench, and I believe your Lordships would not have me say any thing but what I am about to say), is that one of the great dangers of this sort of debate, it seems to me, is that it is so easy for us to sit in judgment upon our brethren. I remember an incident in the Gospel, when the Master said:He that is without sin, let him cast the first stone.If we were to apply that test to-night, there are not many of us who would feel, I think, ready to vote against some Motion which is seeking to help those who have been born with these strange quirks of nature. Even though they may not be ours, thank God!, yet nevertheless, we have those of our own. Let us, then, with sympathy, with compassion and with understanding, do something which will help us to help them in service.
§ 6.5 p.m.
§ LORD AUCKLAND
My Lords, the House will be very grateful to my noble friend Lord Arran for having brought this Bill forward for its Second Reading. It has enabled discussion to take place and a number of very eminent noble Lords from all sides to play their part—from the clergy, from the law and from the Services. I rise to oppose this Bill, and I shall, very briefly, try to explain why. In the first place, it seems to me to be a totally inadequately drafted Bill. A great deal has been said about how it can be amended in Committee. The only 696 way to amend it in Committee, as I see it, is to add a great deal more to the Bill, and I myself do not consider that that is good legislative practice. However, that is purely a matter of opinion.
I should like to congratulate the noble Marquess, Lord Queensberry, on a most moving and eloquent maiden speech, and I join in those who hope he will be heard very much more often. I myself was particularly impressed with the speech of my noble and learned friend Lord Kilmuir, and of the noble Lord, Lord Rowallan. The noble Lord, Lord Rowallan, and the noble and gallant Viscount, Lord Montgomery of Alamein, dwelt on the subject of youth, and I propose to follow this line of argument. Next Saturday I have been asked to take the chair for the twenty-fifth anniversary celebrations of our local Boys' Brigade. My Lords, I could not face these lads in all conscience without at least having registered my protest against this Bill. I am quite well aware that steps can be taken, and no doubt will be taken, to increase the penalties for offences against boys and youths, but I remain to be convinced that a confirmed homosexual, who may well practise his offences against men of 21 and over, will not also attack small boys. There may be medical evidence to disprove this, but short of seeing it and having it proved to me, I fail to be convinced.
There is no doubt that to-day we face two very big problems. The first, as we are constantly reminded, is the increase in crime, as my noble friend Lord Kilmuir mentioned. Secondly, we are reminded of the lack of moral fibre among our youths, although I do not entirely accept that as an argument. But there is no doubt that promiscuity among youth is on the increase; and I agree with the view that has already been expressed: that, if this Bill in its present form were to become law, it would give youth the idea that, because their elders are given consent to take part in these practices, even though they are with consent, they can follow suit and increase their criminal activities.
This may be taken as a cynical point of view; but I have spoken to a number of people in all walks of life about this Bill and I have been impressed by the views which I have received from the 697 country at large, that this relaxation in the law is not wanted. There is, too, this question of consent. It has frequently been said that if this Bill becomes law the problem of blackmail will be largely solved. But will it? Suppose an act occurs with the consent of the two partners and physical damage is done. What is to prevent litigation taking place? And are not the courts going to be faced with some insuperable problems here? That is one point.
As I said earlier, we are trying to solve the problem of the ever-increasing numbers of unmarried mothers, of teenage children who get into pregnancy difficulties. Yet we are seeking to make these unnatural practices legal among consenting males. I do not doubt for one moment that the present law needs some form of alteration. I listened to the right reverend Prelate, the Lord Bishop of Southwark, whom I knew in the early 1940s when he was school missioner of my school in the West Country and was the rector of Fishponds in Bristol. I know what sterling work he has done for youth. But I am bound to say that I, for one, cannot agree with the views expressed by the right reverend Prelates, even though they have come up against this problem a good deal more than have I and, I imagine, many noble Lords in this House. There is certainly no room for compromise. That, I agree. I cannot help feeling that it is incumbent on those who would wish these practices to be legalised to find some way of legalising them; but I cannot see that this present Bill is the answer, and I hope it will be rejected.
§ 6.13 p.m.
§ THE EARL OF HUNTINGDON
My Lords, after two days' debate on this subject, and after a considerable number of speeches, I think one need add very little. Certainly a long speech is not called for. I rise only to express my support for this Bill and to say how impressed I was with the speech of the right reverend Prelate, the Lord Bishop of Southwark, which seemed as sincere and powerful a speech as has been heard in this House for a long time.
I support this Bill. I think it could be amended; there is nothing to stop us adding new clauses to a Bill, if necessary. My own feeling is that the age 698 of 21 is a little too late, and that the age of 18 would be far better. The idea that our men of 18, 19 and 20 can be regarded as children and not to know their own minds seems to me extreme, particularly when you get the opposite point of view, that young girls are deemed to be fully knowledgeable at the age of 16. However, that is a minor point, which no doubt might be discussed in Committee stage.
Looking at your Lordships' debates on this subject (I am taking the two debates together: though unfortunately I was unable to be here for the start of to-day's debate), certain things stand out. Homosexuality is to a large part innate; it is not something one chooses to be. That seems fairly certain. I myself believe, having read the Wolfenden Report, and having talked to doctors and to one psychiatrist on the subject, that the idea of corruption is exaggerated in many people's minds. It can exist; but the number of people who turn homosexual through being corrupted, or are induced by a favourable picture, is really very small—no greater, in fact, than the number of young girls corrupted into a way of life that is very undesirable.
§ LORD SOMERS
My Lords, may I interrupt at this point? The noble Lord is saying that homosexuality is innate and not something one chooses to be. 'I hat argument might be carried to the normal person in whom normal sexual relationship is innate and not something he chooses to be; hut, none the less, he has to exercise some self-control and self-discipline over it.
§ THE EARL OF HUNTINGDON
My Lords, with great respect to the noble Lord, this is a case where the ordinary person (though I might agree that his heterosexual instincts are strong) has nothing in the law to stop him from exercising them. Where the law stops him is in cases of divorce, where there is a question of harm being done to one partner, or from some practices which are obviously very unfortunate—for example, sodomy. But the law does not stop the ordinary relationship between man and woman which is innate as it does in the case of homosexuality. So I cannot see the noble Lord's argument on this aspect. I may be obtuse—I do not know.
699 However, I suggest that the actual corruption is not such a danger as it is thought to be, although it can, and does, occur in both sexes. It seems to me that the overriding issue of importance is that we have this very large population (which has been estimated at anything from half a million to one million) who are living in a state of either frustration or fear. They have this strong homosexual instinct for which no cure has yet been found. We are penalising them and making them miserable for something they probably cannot help. There is also the point that the law, as it stands at present, is a blackmailer's charter, if ever there was one. One need only think, as I mentioned in the other debate, of a foreign agent getting a blackmail hold on someone in an important position who has information that might be valuable to an enemy. And, as I suggested in my speech in the other debate, I believe that this Bill could at one blow take the weapon from the blackmailer, take the weapon from the foreign agent, and enable hundreds of thousands of people, who are now committed either to living against the law, or in terrible, fearful and frustrating circumstances, to live decent reasonable lives. For those reasons, I hope that your Lordships will at least give this Bill a Second Reading.
§ 6.19 p.m.
§ VISCOUNT DILHORNE
My Lords, I am sorry I did not hear the debate on May 12 on the Motion moved by my noble friend, Lord Arran. I have read everything said in that debate, and now to-day, owing to sitting judicially, I was unfortunately—and it is my misfortune—unable to hear the opening speech of my noble friend and some of the subsequent speakers. But since 4 o'clock I think I have heard almost every word said in this debate, and it certainly has been a very interesting and, in my view, also an extremely important debate. Ordinarily, I should never dream of taking part in a debate when I had not heard the opening speeches, but I hope that those whose speeches I did not hear will forgive me for doing so to-night, and I hope that my noble friend Lord Arran will do so, although my purpose is to seek to persuade your Lordships that this is a 700 thoroughly bad Bill to which your Lordships should not give a Second Reading. I should like to make it clear that I am not speaking on behalf of my Party. This is a subject on which there are no Party lines, and if my noble friend presses his Motion to a Division to-night we are all free to vote as we think right. I speak to-night because I feel very strongly that this is a bad Bill which should not receive a Second Reading.
On May 12, my noble friend, in consequence of the advice given to him, decided not to press his Motion, which was a Motion for Papers, to a Division. I can well understand his desire to find out whether the views he then expressed met with the approval of your Lordships' House. He could have done that, as the noble Earl, Lord Iddesleigh, pointed out, by tabling a simple Motion: a Motion, for instance, asking this House to agree that the law relating to homosexuality should be changed, or a Motion, for instance—to take the words of the noble Lord, Lord Boothby—to express the view that there should be some reform of the law; that some reform is necessary. That he has not done. Instead he has taken the first of the many recommendations made by the majority of the Wolfenden Committee and embodied it in the Bill.
The noble Lord, Lord Boothby, on May 12 thought that all that was being talked about then was a repeal of what had been called the Labouchere Amendment—the Amendment moved on the Report stage in another place of a Bill to give further protection to women, and passed, as we have been told, without any discussion as to its substance. The noble Lord, Lord Boothby, said on May 12 that that was all the Wolfenden Committee wanted removed. He was wrong about that then. I had hoped that before to-night he would have detected his error, because he was corrected on that occasion. Wolfenden went beyond that, and this Bill goes beyond that, and it would be quite wrong to suppose that if your Lordships give a Second Reading to this Bill you will just be expressing an opinion that some change should be made in the law. Your Lordships will be doing much more than that. You will be giving approval in principle to two major changes of our law. Let us be under no illusion about that.
701 It comes under two heads. We have heard the views expressed by the right reverend Prelate the Bishop of Southwark expressed from the Bishops' Benches, but I think those two particular heads have been somewhat blurred. If this Bill receives a Second Reading to-night it will be taken throughout the country that this House approves in principle of sodomy between adult consenting males. That is what we shall be voting for.
§ VISCOUNT DILHORNE
It is all very well to say "Nonsense", but this Bill applies to that. What we are considering is not what this Bill might become, but what it is. The Bill will be taken as permitting any form of gross indecency between male persons.
May I digress for a moment? We heard from the right reverend Prelate the Bishop of Southwark of the difficult cases which have come to his notice arising from homosexual tendencies. We have heard criticisms made of lawyers and of the attitude it is sometimes said that lawyers take to reform. I would ask the right reverend Prelate to bear in mind that some of us who have practised at the Bar and in the criminal courts have not always appeared for the prosecution. We have often appeared for the defence and we, too, have knowledge of the distressing personal problems that affect homosexuals. I hope your Lordships will believe that it is through no lack of sympathy with them in their difficulties and no lack of desire to see that everything possible that can be done shall be done to help them in their difficulties that I adhere to the view that we should not alter the law as is suggested in this Bill to-night.
In 1861, when that Act was passed, sodomy was described in it as "the abominable crime". I must regret that in the process of consolidation in the Sexual Offences Act those words have been omitted. Now we are asked by this Bill to say that sodomy between consenting male adults in private should not, in this modern age, be a crime at all. Ought such conduct between consenting adult males to be regarded as abominable, even when committed in private? Is it so abominable, and such an affront to decency that it should remain a crime, as it has been for the last four hundred 702 years? As I see it, those are the questions upon which we are asked to express a view to-night—not just the question whether any change should be made in the law.
I am sorry indeed that the most reverend Primate is not able to be with us this evening. I read what he said in our last debate with the interest and with the respect I always pay to what he says. In the course of his speech he said that homosexual acts are always wrong. My Lords, I am sure we can all agree about that. Then he went on to say and I quote his words:If the line can reasonably be drawn anywhere, homosexual acts in private between consenting adults fall properly on the same side of the line as fornication."—[OFFICAL REPORT, Vol. 266 (No. 73), c. 82, May 12, 1965.]My Lords, it may be that when the most reverend Primate said that he had not sodomy in mind, but the words he used were wide enough to include that, and from those words it would appear that the most reverend Primate equates sodomy between consenting adult males in private with fornication.
I hope I have drawn the wrong conclusion from what he said, but I did not find anything said to-day which led me to suppose that the conclusion was wrong. If that is the right conclusion, then I must tell the most reverend Primate that, with the greatest respect, I entirely disagree with him; and if that is his view and if that is the view of the Bishops' Benches to-day, I can only say that it differs from the opinion of the noble Lord, Lord Fisher of Lambeth, which he expressed in debate in this House on the 4th December, 1957. May I just remind your Lordships of the passage in Lord Fisher of Lambeth's speech? He said:I know many people have grave hesitation about this recommendation. They think it will lead to an increase in offences. Their information may be different from mine, and it is not at all easy to be dogmhatic; but, like the Church Assembly itself, I feel that if there is a doubt the risk should be taken.I would ask your Lordships to mark those words. He continued:I would add only this one further reflection: that if it proved legally possible—I do not know whether it is—to separate what the noble Lord, Lord Pakenham, called the extreme offence, and to leave that still a crime, I should wish to leave it a crime still. The Report goes so far as to say this. We believe that there is some case for retaining 703 sodomy as a separate offence.' I believe that if that could be done, it would relieve the anxieties, fears and indignation of a great number of people: and, more than that. I believe that this crime does stand in a class by itself and is almost different in kind from other homosexual offences."—[OFFICIAL REPORT, Vol. 206, col. 757, December 4, 1957.]There can be no doubt that the Bill as drawn applies to that offence and that the noble Lord, Lord Boothby, was incorrect in saying that all the Bill was concerned with was Section 11 of the Criminal Law Amendment Act. I must say that I regard sodomy, be it in public or in private—and, of course, it is seldom committed in public—as abominable, and I am sure that there are many in this country who think as Parliament thought in 1861, that this is the right word to apply to such conduct.
I want to be strictly accurate. This Bill does not legalise all forms of sodomy. Sodomy with a woman or animal will remain a criminal offence. Such crimes are committed but not in sight of the public, and their commission does not depend on whether they are done in public or in private. All forms of homosexuality are wrong, as the most reverent Primate has said; but surely some forms of sexual misbehaviour are more wrong than others, and surely some forms are so abominable as to merit condemnation by the State. So I believe that they should be regarded and treated as criminal.
The Wolfenden Report stated that it was part of the function of the law to "preserve public order"—and I would ask your Lordships to mark these words—"and decency". The Committee then went on to express the view that it was not proper for the law to concern itself with what a man does in private unless it can be shown to be so contrary to the public good that the law should intervene in its function as guardian of the public good. For 400 years or so the State has regarded sodomy as so contrary to the public good as to justify its being regarded as a most serious crime. And I believe it is for those who advocate a change now to show that that view is wrong.
But if the test suggested by the Wolfenden Report is right, and if the view is that sodomy between consenting males in private should be lawful, on what 704 ground can one validly distinguish between sodomy between consenting males in private and other forms of sodomy committed in private—with women and bestiality? What about incest? The noble Earl, Lord Arran, said on May 12 (col. 72):If we can agree that men over 21 may do what they like together in private so long as no one else is the worst off because of it, then we shall have accepted the spirit of Wolfenden.If the test is that adults should be free to engage in any form of sexual misbehaviour, so long as it is in private and nobody else is any the worse off, can incest between consenting adults remain a crime? The offence does not depend on pregnancy. The most usual kind of incest is that of father and daughter—and distressing these cases are; but it does happen between brother and sister, and between half-brother and half-sister.
I remember hearing, many years ago, a very sad case of a half-brother and a half-sister who were charged with incest. They already had been previously convicted. No one, looking at them, would have thought that they were related, and they were obviously deeply in love with each other. They were convicted—and they had not harmed anyone else. It is not only homosexuals who suffer these strains and stresses, and this misery. I would suggest that it is not misery created by the law, but misery because of their particular affliction or tendency. I doubt whether the keenest advocate of homosexual licence would say that incest in private should not be a criminal offence. I doubt whether anyone would say that bestiality in private should be lawful. But if the test is privacy, and whether anyone else is harmed, then it would appear to follow logically that such conduct should be permissible. It is worth wondering for a moment why this is not advocated. In my belief, the answer is that incest and sodomy with animals are so abominable, so disgusting and so degrading—and, I would say, such a grievous sin—that it is accepted as right that they should be regarded as criminal. In my view, sodomy with a human being comes in the same category.
The Wolfenden Committee asserted that part of the function of the law was to preserve public order and decency. To 705 preserve decency, is it not right that it should remain a crime to commit sodomy, even when in private and between consenting males? In my view, this Bill should not apply to either sodomy or attempted sodomy. If my noble friend Lord Arran, accepts that, as he well may when he comes to reply; and if he says, "Give this Bill a Second Reading, and I will move an Amendment excluding sodomy and attempted sodomy in Committee," that is one thing, though it would not induce me to vote for the Bill as it stands, with the principle that it embodies to-night. But if that course were taken, what would the scope of the Bill be? It would be to permit acts of gross indency between consenting males in private. That would be less objectionable, but it would still be open, I think, to very considerable objections. I do not think that the observations of the right reverend Prelate the Lord Bishop of Southwark about our law at the present time are well founded. I cannot share his view that the law about sodomy, for instance, is one of the most misguided, most vicious and most evil of our Statutes, if I may use his own words.
If I may come back to what would be left, if sodomy and attempted sodomy are eliminated, the argument for making the change is then perhaps stronger, because of the way that indecency between males became a criminal offence. While it is true that the substance of the Labouchere Amendment was not debated, I find it difficult to suppose that the Parliament of that day did not appreciate the content of that Amendment. Now we are asked to say that gross indecency should be lawful, if it is by consent and in private. The Wolfenden Committee recognised that money gifts or hospitality can be used to induce consent. Do we really want, in these days, to encourage male prostitution by making that legal? Surely we should not do that. And is there not a real risk that gross indecency between males may lead to their committing the full offence? Surely making gross indecency legal at the present time is likely to lead to a less serious view being taken of the offence of sodomy? To repeal the application of the gross indecency law in respect of adults over 21 who consent is a very different thing from introducing this particular feature of the law, if it did not already exist.
706 What exactly is meant by "private "? This is a real question. The Bill gives no definition. If there are two in a room engaged in homosexual practices, presumably that is in private. Is it still to be regarded as in private if there are a considerable number of homosexuals engaging in these practices in the same premises or in the same room? The Wolfenden Committee recommend in Paragraph 64 that the indecent act should be criminalif committed in a place where members of the public might be likely to see it and be offended by it.That appears to envisage that it will be an offence only if it is seen by those who are not homosexuals; because if they are, then they are not likely to be offended by it.
THE EARL OF ARRAN
With great respect, if I may interrupt the noble Viscount, paragraph 64 also says:It will be for the courts to decide, in cases of doubt, whether or not public decency has been outraged …".The words "in private" are not intended to provide a legal definition.
§ VISCOUNT DILHORNE
I agree that that is what the Wolfenden Report says about it. But the noble Lord has put in his Bill the two words "in private", and has given no guidance whatever to the courts. There is nothing about public decency, but just the words "in private". Perhaps, when the noble Earl comes to reply, he will say what he means by "in private".
What I was saying was that if that is the right interpretation of the sentence in the Wolfenden Report, then it would seem that homosexual parties at which only homosexuals are present are to be regarded as private. If that is the same view as my noble friend has of the meaning of the word "private", then the way is open to the kind of clubs to which my noble and learned friend Lord Goddard drew attention. If a house in the town or in the country becomes a resort for those wishing to engage in homosexual practices, and that becomes known, I can see that this is likely to cause very great offence and great scandal. But under this Bill, if it is to be interpreted in the light of Wolfenden, nothing can be done about it. The noble Earl, Lord Huntingdon, thought that the age of 707 consent was a little high. I wonder whether it is a little low. Does the risk of corruption cease at 21? Is it not the case that there are a number of homosexuals who seek to recruit others to join their ranks?
As I say, this Bill touches on what are at present two criminal offences—namely, sodomy between males and gross indecency; and it touches too, in my belief, on those in the Armed Forces. It is perfectly true that Section 66 of the Army Act provides for the punishment of disgraceful conduct of an indecent or unnatural kind. But this Bill provides:Notwithstanding any statutory or common law provision, a homosexual act in private shall not be an offence provided that the parties consent thereto and have attained the age of 21 years.So that, as I see it, without the slightest doubt, if someone is prosecuted under Section 66 of the Army Act he will be able to turn to this Bill, if it is enacted, and say: "Notwithstanding this statutory provision in the Army Act, it is not an offence for me to do it."
§ LORD AIREDALE
My Lords, surely it would be possible in Committee to amend this Bill simply by saying that Section 66 of the Army Act is not repealed by this Bill.
§ VISCOUNT DILHORNE
If the noble Lord had not interrupted me, I was going on to deal with the possibility of amending it in Committee. I gather that the noble Lord, Lord Boothby, also wants to say something.
§ LORD BOOTHBY
I merely wanted to say that the noble Earl, Lord Arran, made it clear that he was prepared to accept an Amendment that Section 66 of the Army Act should remain in force.
§ VISCOUNT DILHORNE
I am glad that the noble Lord, Lord Boothby, has filled a gap in my knowledge. I began my speech by saying how much I regretted that it was impossible for me to hear the noble Earl's speech, and the contributions of some of those who followed him. I was dealing with the point as it is at the present time. Of course an Amendment can be tabled to the Bill. One could table an Amendment to exclude sodomy. One could table 708 many Amendments. However, what we are asked to do in your Lordships' House to-night is not to consider what Amendments might or might not be moved, but to give approval, in principle, to this Bill.
What are the arguments, if I may touch on them quite shortly, for doing this? It is said that the Labouchere Amendment is a "blackmailer's charter." The noble Earl, Lord Arran, said that he regards blackmail as worse than buggery. The Wolfenden Report says, in paragraph 110, that:the amount of blackmail which takes place has been considerably exaggerated in the popular mind.The Committee goes on, in paragraph 111, to express some doubt as to whether blackmail is due primarily to exposure or primarily to the threat of a criminal prosecution. If the course of this debate it was said, I think by my noble friend Lord Goddard, that the threat of exposure is a very potent weapon in the hands of the blackmailer; that is to say, exposure to one's friends or exposure to one's employers. While these practices are condemned by social opinion, the possibility of blackmail still exists. But there is the possibility of blackmail for many other forms of human misconduct. If it were the case that the repeal of the Labouchere Amendment, the alteration of the law as proposed by this Bill, would materially reduce the risks of blackmail, I myself would still say that that is not an adequate reason for such a radical change in the law.
I should like to add this. I believe that those who are being blackmailed should be encouraged to report the matter to the police, and that when it is clear that the story of blackmail is genuine and not just a device to avoid prosecution for sodomy or indecency, the person who is being blackmailed should not be prosecuted. But that is another thing from changing the law as is proposed. It is said that the law does not work, and so only a few homosexuals come before the court. I do not think that is a valid argument. If it were, in these days one might have to consider making theft and burglary lawful, because, after all, not so high a percentage of those offenders come before the court.
I feel that this Bill is not one to which your Lordships should give approval. If 709 we pass it to-night, I think it is inevitable that we shall be regarded as giving approval to these practices; we shall be regarded as condoning them. If there is any change to be made in the law—and I am not opposed to change of the law—I think consideration should not be given to the kind of change proposed in this Bill, but to whether or not in these days it would be right just to have a simple repeal of Section 11 of the Criminal Law (Amendment) Act. But, having said that, this is a very different thing from a limited repeal for the benefit of homosexuals over the age of 21.
Whatever view may be held by the Church Assembly, if we give a Second Reading to this Bill to-night I cannot help but think that there will be many young people who will think that homosexuality is not as bad a sin as they were led to suppose. The most reverend Primate the Archbishop of Canterbury, on May 12, concluded his speech with two sentences which f should like to quote in the inverse order to that in which he put them. His last sentence was:The proposed reforms would, I believe, help greatly by enabling a greater balance between the forces of law, morality, remedial science and the cure of souls, by promoting what is good and right."—[OFFICIAL REPORT, Vol. 266 (No. 73) col. 84, May 12, 1965.]I cannot believe that for the State to appear to condone gross indecency and sodomy between consenting adults is promoting good and right. His penultimate sentence was:In the moral state of our country we need all the forces available to combat evils, of which homosexual practices are one.My Lords, there I entirely agree with the most reverend Primate. It is because I believe that we need all the forces available to combat evils, and the evils of homosexual practices, that I ask your Lordships to reject this Bill.
§ 6.50 p.m.
§ THE LORD CHANCELLOR (LORD GARDINER)
My Lords, during the course of this debate my noble friend Lord Stonham said that, as points of law were being raised, he would ask me to say a word about them at the conclusion of the debate. The recommendation of the Wolfenden Committee was that:Homosexual behaviour between consenting adults in private should no longer be a criminal offence.710 And they said that by "adult" they meant the age of 21 or over. This Bill would provide that:… a homosexual act in private shall not be an offence provided that the parties consent thereto and have attained the age of 21 years.These are all very ordinary English words. If this Bill passes its Second Reading and if any of your Lordships think that any of these words requires further or special definition, no doubt Amendments will be put down on Committee stage.
It seems to me that only one question of law has been raised during the debate—and I am concerned only with questions of law—and that is the question whether Section 66 of the Army Act, and other comparable Service Acts, would be preserved if the Bill were passed in this form. I regard that as a matter of some doubt. Of course, proceedings could be taken under Section 66, although what the Serviceman would have done is that which would not otherwise constitute an offence. But I do not propose to trouble your Lordships with the arguments on the two sides, because the noble Earl, Lord Arran, has told me that he intended that Section 66 should be preserved, and that if there was any doubt about it—as I think there certainly is—he proposed to put down an Amendment at the Committee stage to make it quite clear that Section 66 is preserved. As that is so, I do not think I need trouble your Lordships any further.
§ 6.52 p.m.
THE EARL OF ARRAN
My Lords, I am going to be very brief indeed. We have had a controversial debate—I had expected it to be. I have been impressed by the arguments brought forward for voting against the Bill. I have been impressed but I have not been over-impressed, not unduly impressed. As the noble and learned Lord who sits on the Woolsack has told your Lordships, any measure for strengthening Section 66 of the Army Act which may be called for I personally would certainly espouse. As for the ultimate defence which has been raised by noble and learned Lords, I can only say that if there are others of your Lordships who feel the same, as there may well be, and who wish to regard it as a special 711 case, let them say so at the appropriate time.
If this Bill is wrong let us put it right, and let noble Lords who think it wrong help to put it right. As I said in my opening speech, the issue remains a simple one, and no amount of (if I may use the word) smokescreens can confuse it. What we are going to say, contrary to what the noble and learned Viscount, Lord Dilhorne, said, is simply that this House wants, or does not want,
§ Resolved in the affirmative. Bill read 2a accordingly, and committed to a Committee of the Whole House.712
§ homosexual law reform. That is what it is all about. There are no ifs or buts. Make no mistake about it. That is the way the vote will be interpreted throughout this country. I devoutly hope that this afternoon we may give a lead.
§ On Question, Whether the Bill shall be now read 2a?
§ Their Lordships divided: Contents, 94; Not-Contents, 49.711
|Addison, V.||De La Warr, E.||Mitchison, L.|
|Ailwyn, L.||Drogheda, E.||Monson, L.|
|Airedale, L.||Effingham, E.||Mottistone, L.|
|Amherst, E.||Elliot of Harwood, B.||Napier and Ettrick, L.|
|Amulree, L.||Emmet of Amberley, B.||Norwich, V.|
|Archibald, L.||Faringdon, L.||Phillips, B.|
|Arran, E. [Teller.]||Ferrers, E.||Ponsonby of Shulbrede, L.|
|Attlee, E.||Fleck, L.||Poole, L.|
|Barrington, V.||Francis-Williams, L.||Queensberry, M.|
|Bedford, D.||Furness, V.||Radcliffe, V.|
|Beswick, L.||Gaitskell, B.||Rea, L.|
|Blackford, L.||Gardiner, L. (L. Chancellor.)||Reay, L.|
|Boothby, L.||Gifford, L.||Redesdale, L.|
|Boston, L.||Gladwyn, L.||Ripon, L. Bp.|
|Bowden, L.||Goschen, V.||Ritchie of Dundee, L.|
|Brabazon of Tara, L.||Greenway, L.||Robbins, L.|
|Brain, L.||Haire of Whiteabbey, L.||Royle, L.|
|Bridgeman, V.||Harvey of Tasburgh, L.||Runciman of Doxford, V.|
|Brockway, L.||Henderson, L.||Sainsbury, L.|
|Burden, L.||Henley, L.||St. Davids, V.|
|Burton of Coventry, B.||Hertford, M.||Segal, L.|
|Byers, L.||Huntingdon, E.||Shackleton, L.|
|Chelmsford, V.||Jellicoe, E.||Southwark, L. Bp.|
|Chichester, L. Bp.||Jessel, L. [Teller.]||Stamp, L.|
|Chorley, L.||Kennet, L.||Stonham, L.|
|Chuter Ede, L.||Killearn, L.||Strabolgi, L.|
|Cohen, L.||Kinross, L.||Strang, L.|
|Colgrain, L.||Lincoln, L. Bp.||Strathcarron, L.|
|Colyton, L.||Listowel, E.||Ward of Witley, V.|
|Craigton, L.||Longford, E. (L. Privy Seal.)||Wilberforce, L.|
|Cranbrook, E.||Merthyr, L.||Wootton of Abinger, B.|
|Albemarle, E.||Grenfell, L.||Morton of Henryton, L.|
|Aldington, L.||Grimston of Westbury, L.||Netherthorpe, L.|
|Alport, L.||Hawke, L.||Northchurch, B.|
|Auckland, L.||Hobson, L.||Peddie, L.|
|Blyton, L.||Horsbrugh, B.||Rowallan, L.|
|Brocket, L.||Howard of Glossop, L.||St. Aldwyn, E.|
|Champion, L.||Hylton, L.||St. Helens, L.|
|Chelmer, L.||Iddesleigh, E.||St. Oswald, L.|
|Clwyd, L.||Ingleby, V.||Shannon, E.|
|Daventry, V.||Kemsley, V.||Shepherd, L.|
|Denning, L.||Kilmuir, E. [Teller.]||Somers, L.|
|Dilhorne, V. [Teller.]||Leatherland, L.||Strange of Knokin, B.|
|Erroll of Hale, L.||MacAndrew, L.||Stuart of Findhorn, V.|
|Exeter, M.||Milverton, L.||Swansea, L.|
|Forster of Harraby, L.||Monsell, V.||Wigram, L.|
|Goddard, L.||Montgomery of Alamein, V.||Wolverton, L.|