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Dr. Evan Harris: I beg to move, That the clause be read a Second time.
Mr. Deputy Speaker : With this it will be convenient to discuss the following: Government amendments Nos. 50 and 51.
Amendment No. 194, in page 34, line 18, leave out clause 66.
Amendment No. 147, in page 34, line 20 [Clause 66], after 'lavatory', insert 'or shower cubicle'.
Government amendments Nos. 85 and 86.
Dr. Harris: This is an important debate because there are real problems with the drafting of clause 66, which amendment No. 194 would delete and new clause 10 would replace. It is important and habitual to set out that, like others who have spoken on the Bill, I am opposed to sexual acts in public and to sexual acts in lavatories. One need not labour the point that they are distasteful—to say the least—offensive, distressing and alarming to people. However, I should like to explain why the new clause is a better way of achieving what we are seeking. I shall then show how the Government's approach, unlike the new clause, fails to implement the recommendations of "Setting the Boundaries" or the intention behind the White Paper, and does not address concerns raised about the extent of the proposal.
The first problem with the clause is that it is too narrow in its geography because it relates only to public lavatories. My hon. Friends the Members for Mid-Dorset and North Poole (Mrs. Brooke) and for Romsey (Sandra Gidley) have also tabled an amendment to demonstrate that the clause is too narrow. A consequence of the narrowness of the clause is that the measure is indirectly discriminatory against men who have sex with men, including gay men but not just men
who regard themselves as gay. That is what we are talking about in terms of public lavatories; men who have sex with men.
Mr. Grieve: I can assure the hon. Gentleman that if he read the Committee Hansard, he would see that that is not the case. The examples I cited there included the misuse of public lavatories in various buildings for the purposes of heterosexual activity. I can assure him that the proposal is gender neutral.
7.45 pm
Dr. Harris: As phrased, it is gender neutral but that is not its impact because of the frequency with which the offence takes place. I have read Hansard and am aware of the case that the hon. Gentleman adduced involving sex between a man and a woman in the toilets of a court. It was not clear whether they were lawyers or not. If we study the history of prosecutions of this sort of activity, we see that there were always more complaints, prosecutions and convictions against men. As a consequence of that indirect discrimination and the disproportionate impact on men who have sex with men, the Bill fails one test—to be non-discriminatory in its impact as well as its wording.
Sandra Gidley: My hon. Friend is over-egging the pudding with regard to the proposal having too great an impact on men who have sex with men. The simple fact is that it is easier for men to go into a toilet together than it is for a man and a woman. It is a more common offence—not a greater or lesser offence—because it is easier. There is no sinister intent to criminalise gay men.
Dr. Harris: My hon. Friend misunderstands my point. The clause does not deal with places where men and women have sex together in public, such as in parks, lover's lanes, on trains and on top of buses. [Interruption.] Hon. Members may be suggesting their own favourites. The clause is restricted to public lavatories, and my hon. Friend makes my point; that is where men go—wrongly, in my view—to have sex with other men, but it is not where men and women go to have sex in public together. That is self-evident and—as I said at the outset—the clause is too narrow in that it includes only public lavatories and does its best to exclude from the offence sex between men and women in public places. That is the key point. As a consequence, the clause fails to meet the test of the Bill—that it should be non-discriminatory—and may give cause for redress under the Human Rights Act because of that discrimination.
The second problem is that the clause as worded is discriminatory in its effect on gay men in their defences, compared with the equivalent defences that might be available to a heterosexual couple charged, as they would need to be, under public order legislation. Public order legislation deals with the need to avoid depraving public morals and with offending, alarming or distressing people, so clearly someone has to make a complaint and someone must be a victim of the offensive behaviour. The wording of clause 66 does not require that that offence, distress, alarm or fear be caused, so the defences available to people caught under it are fewer than those available to heterosexual people; or, indeed, people of the same sex caught in other places. That is unfair and unreasonable.
I believe that, as drafted, the clause would catch people who were not engaging in sexual activity. The clause defines an activity as sexual
- "if a reasonable person would, in all the circumstances but regardless of any person's purpose"—
- "consider it to be sexual."
The proposal recreates a victimless crime. We have gone through decades of gross indecency and buggery laws, which—where there was consent—were victimless crimes. The clause would recreate that as there is no provision for anyone needing to be distressed or alarmed. The new clause proposes that it should be an offence if someone is distressed, alarmed or afeared by such action. The history of the victimless crime and its disproportionate effect on gay men was set out by the hon. Member for Rhondda (Mr. Bryant) earlier, and part of the reason for "Setting the Boundaries", the White Paper and the Bill was to get away from the time when victimless crimes, particularly those of which gay men are convicted, were commonplace.
Mr. Grieve: Does the hon. Gentleman not consider that if a public lavatory is regularly misused for sexual purposes, it ceases to be a victimless crime; not because people are not present when the activity happens, but because, as a result, the use of the lavatory for legitimate purposes becomes impossible?
Dr. Harris: On that basis, the hon. Gentleman should support the new clause, which makes it clear that that would still be an offence in a public lavatory, because one could say that it would never be reasonable for someone to consider that such activity was not likely to distress or alarm anybody. I shall deal with that when I talk about the new clause in more detail. I am prepared to make common cause with the hon. Gentleman to make that an offence, but it is not right that the definition should apply exclusively to public lavatories.
Clause 66 reopens the possibility of entrapment. There is nothing to prevent entrapment; indeed, there is every likelihood that it will lead to an increase in convictions involving entrapment, when the police may go looking for someone willing to have sex, or to expose themselves for the purposes of sexual activity. The wording of the Bill means that the entrapper would not need to be distressed, alarmed or afeared—as someone who was "asking for it", and seeking to provoke the activity, would generally not be—so entrapment would reappear.
As well as entrapment by the police there would again be scope for blackmail to take place, even when no distress or alarm had been caused to anyone. It is the job of modern sexual offences law to avoid as far as possible allowing someone to provoke an offence for the
purposes either of blackmail or of securing an easy conviction.In contrast, the new clause covers more public places, without the drawback in the Government's first attempt, which caused difficulty because it was regarded as extending even to secluded garden areas, because they were outwith the dwelling that was initially excluded. The new clause makes it clear that the provision would also apply to behaviour in other public places that a person
- "knows or ought to have known was likely to cause harassment, distress, alarm or offence to any other person",
- "causes or has caused harassment, distress, alarm or offence to any other person."
The new clause requires a victim and a complaint, but the complainant could be a policeman. If two people were engaging in sexual activity in a public lavatory or other public place, a policeman could be the person who was offended. However, the wording of the new clause does not mean that anyone engaging in sexual activity in a very secluded place—such as a wood, or, indeed, their own back garden—would be liable to be convicted. That is appropriate, and strikes the right balance.
We have to remember the Bill's context, which was based on the Home Office report "Setting the Boundaries". The report's basic set of assumptions were that
- "any application of the criminal law must be fair, necessary and proportionate";
- "the criminal law should not discriminate unnecessarily between men and women nor between those of different sexual orientation";
- "the law should not intrude on consensual sexual behaviour between those over the age of consent without good cause".
- "We thought it important that the law should be able to deal with problems caused by inappropriate sexual behaviour in public places, including public toilets. We recommend:
a new public order offence to enable the law to deal with sexual behaviour that a person knew or should have known was likely to cause distress, alarm or offence to others in a public place."
- "A new public order offence should be created to deal with sexual behaviour that a person knew or should have known was likely to cause distress, alarm or offence to others in a public place."
- "some public facilities are extensively used for sexual purposes, and the law needs to be able to deal with this problem as part of wider powers to deal with sexual activity in public places . . . The common law offence of outraging public decency includes 'all open lewdness, grossly scandalous behaviour, and whatever openly outrages decency or is offensive and disgusting"—
- "or injurious to public morals by tending to corrupt the mind and destroy the law of decency, morality and good order'".
Paragraph 8.4.4 points out that the Wolfenden committee argued that
- "criminal law should apply to all sexual behaviour in public and not in particular to same sex behaviour."
- "The law should be able to tackle these public order/decency issues whether they relate to heterosexual or same sex activity. Finally, we thought it "unnecessary and disproportionate to prohibit all sexual activity in public."
- "We will also be introducing a new public order offence, specifically targeted at specified sexual acts that take place in public. The new offence of Sexual behaviour in a public place will send out a strong signal of our intention to protect people from being unwilling witnesses"—
- "to overtly sexual behaviour that most people consider should take place in private. It will be in addition to, and not a replacement for, existing public order offences. However, it is not our intention to interfere in everyday behaviour in public that does not cause offence to the vast majority of people such as kissing or cuddling".
On entrapment, a letter from Stonewall to the Minister dated 24 October states:
- "It would be very regressive indeed if the result of this clause was a return to practices such as entrapment, particularly when there are far more pressing matters for the police to be dealing with".
I would say that the complaints that we hear are about the use of public toilets exclusively by men having sex with men—almost to the exclusion of other people being able to use them at all—but it is not surprising that there should be more complaints about that, because the culture of gay men having sex, especially men who are married and therefore do not recognise themselves as gay, is a culture of furtive experiences.
Another reason why it is not surprising that there are more complaints about that activity is homophobia, and people's reaction to men kissing in public—and, indeed, on the television—which raises far more complaints than the sight of men and women of the same age, with the same degree of consent and the same depth of relationship, kissing. There is a differential acceptance of public displays of affection, and, therefore a different acceptance of public displays of sexual activity. That is wrong, because there should be no discrimination. People find homosexual acts offensive in a way that they do not find heterosexual acts offensive.
The very fact that disproportionate offence is caused by homosexual acts should warn us of the pitfalls of going down a path that leads to a predominantly gay-only offence. A low threshold for distress or alarm—or likely distress or alarm—may be appropriate under the new clause, but there is no threshold at all for distress, alarm, fear or offence under clause 66 as it stands.
Clause 66 is inadequate in many ways. For those of us who want a specific provision banning sexual activity in public places, but which is not directed only and specifically against gay men, the new clause is the way to go. If the Minister is willing, I am prepared to explore ways to tighten it further. For example, subsection (2) of the new clause, which provides for the defence of a person's having reasonable belief that they were unlikely to be causing offence, need not apply to a public lavatory. That might be a way to ensure that the unacceptability of sex in public lavatories is made clear. On that basis, I hope that the Minister and other Members recognise the merits of new clause 10.
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