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Lady Saltoun of Abernethy: I strongly support Amendment No. 355 in the name of the noble Baroness, Lady Noakes. At the same time I shall speak to Amendment No. 359, which seeks to delete Clause 74(2). It seems to me to be a very restrictive injunction worthy of the Government in nasty nanny mode and determined to interfere in every area of people's private lives. What constitutes a dwelling? Is an hotel bedroom a dwelling? Is a tent a dwelling? Is a sleeping compartment on a train a dwelling? Is a cabin on a ship a dwelling? Is the back of a car on a dark night a dwelling? I would hardly describe them as such, yet to prohibit sexual activity in any of them or indeed outside a building at all seems almost unbelievably puritanical and worthy only of the most bigoted ayatollah or the very nastiest nanny killjoy.

I suppose that it is easy for city dwellers to forget that there are huge tracts of virtually uninhabited countryside, woodland and moorland such as Dartmoor or the Highlands of Scotland, which, although now technically public places since the public are allowed to roam through them at will, are locations where young people have for centuries past pursued their romances which would not be possible in the family home.

Are all these people now to be in danger of fines or imprisonment should they have the misfortune to be seen? The clause should be deleted and replaced with one much more tightly drafted dealing with sex in public lavatories and public places which are populous such as public parks in towns and cities, railway stations and ordinary compartments of trains and so forth. It should not seek to criminalise the couple having a romantic interlude on a starry night on the moors.

Lord Alli: I hesitate to rise at the mention of a cubicle door, gay sex, and a public lavatory. It is a little too much to resist. I concur with what the noble Lady, Lady Saltoun of Abernethy, said. I would certainly resist any extension of criminalising people for having consensual sex. We have to be very careful that we continue to do that.

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I suppose that I am one of the few people who probably quite likes Clause 74 as drafted. I understand, however, that the noble and learned Lord intends to remove it and in doing so rely on Sections 4A and 5 of the Public Order Act 1986 and the common law offences of outraging public decency.

Would he consider giving me some reassurance in the interpretation of those offences? The reassurance I seek really relates to making sure that they are "sexuality neutral" in their interpretation. That would go a very long way to reassure those of us in the gay community that it would be safe to rely on these Public Order Acts and public decency definitions. We would hate to see a repeat of the 1986 case of Matheson v Holden, in which the Divisional Court held that the magistrates were entitled to decide that heterosexuals might feel insulted at seeing a gay couple kissing in Oxford Street at 1.55 a.m. An assurance that the law would not be interpreted so that an activity indulged in by a homosexual couple would be deemed offensive, despite having a publicly acceptable heterosexual equivalent, would go a long way to reassuring many of us that the removal of Section 74 from the Bill and the reliance on the Public Order Act and the common law offence of outraging public decency would achieve what I understand to be the Minister's objective.

Baroness Walmsley: My Lords, I rise to speak to Amendment No. 361 and to oppose the Question that Clause 74 stand part of the Bill. I am delighted that the Government have agreed with the Liberal Democrats that the clause should be removed from the Bill. They have clearly not got it right, as the noble Lady, Lady Saltoun of Abernethy, has just demonstrated.

However, I would like to talk about the issue that caused me to table Amendment No. 361, which attempts to ensure that a prison cell should be regarded as a private place for the purposes of the Bill. As I said at Second Reading, the Prison Service has a duty of care to those in its custody. That means that they have a responsibility to reduce harm wherever possible. We know that a great deal of homosexual sex goes on in prison. This carries with it an enormous risk of infection with HIV or hepatitis.

Unfortunately, the state of the law is uncertain and Clause 74 would have muddied the waters even more if it had passed into law unamended. The Prison Service says that sex in prison is unlawful, and they are unwilling to provide condoms, unless prescribed by a doctor, on the basis that to do so would be to condone unlawful behaviour. Many prisoners are unwilling to approach the prison doctor about this, and some doctors will not supply condoms anyway. It is left to charities to fill the gap.

Even if the clause is removed from the Bill, the situation will remain unsatisfactory. The Minister told me at Second Reading that the Prison Service is reviewing its policy on this issue. However, I would be grateful if he could make it clear from the Dispatch Box that the service's duty of care compels it to ensure that prisoners can obtain condoms if they need them. We cannot have cell-block prescribing in this area. It

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is important to protect the health of prisoners. It is bad enough to be given a custodial sentence without being given a health sentence as well.

As far as the whole clause is concerned, I accept that the Government's intention was to clarify society's view that there are some places where sexual activity is simply unacceptable, as it will cause offence. There has been considerable misunderstanding about the effect of the clause. Some thought that it would ban sex in public toilets, and some thought that it would allow it with the door closed.

I agree with the noble Lord, Lord Alli, that we must treat everyone, of whatever sexuality, equally under the law. Having said that, I do not believe that any kind of sex is appropriate in public toilets. They are public places, whether the door is closed or not, and sound carries. None of us wants to be witness to other people's private behaviour, and we certainly do not want our children to encounter adult behaviour unawares.

I welcome the Minister's statement in his letter on the matter that he is confident that the existing Public Order Act defences and the common law offence of outraging public decency are adequate to cover this matter. Everyone knows that the best way of discouraging sex in public toilets is to have them well lit, frequently visited by cleaning and maintenance staff and well used by the public. I hope that local authorities will, wherever possible, use this method to discourage unwanted bad behaviour, although I am quite aware that shortness of resources is an issue. Where offences do take place, the police should use the tools that they already have to address the matter.

I am aware that the Government intend to introduce an amendment to the Criminal Justice Bill in another place tomorrow, to make outraging public decency a summary as well as an indictable offence. My colleagues in another place will be exploring the effects of that change with the Government and I look forward with interest to the clarification that they will extract from Ministers there.

We do not want police officers to continue to act as agents provocateurs. We would like there to be a warning if a particular public toilet was causing concern to the public. A warning notice could be displayed in the same way that there are warnings about radar cameras. If people then choose to ignore the warnings, they should accept the consequences. We will return to this matter when we debate the Criminal Justice Bill.

I am a liberal and I believe in freedom and responsibility. In a free country, consenting adults should be able to do as they please in private, so long as they do not frighten horses. However, I should put sex in public toilets into the category of frightening the horses—or at any rate, the children. We should discourage it in a sensible and effective way without trespassing on the reasonable freedoms of other people.

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I therefore oppose the Question whether Clause 74 stand part of the Bill and look forward to the Minister's response to my concerns about condoms in prisons.

Lord Falconer of Thoroton: As is obvious, I have added my name to those opposing the Question whether Clause 74 stand part of the Bill and will gladly explain why I have done so. Before I do that, I shall take up three points. The first point is about sexuality and neutrality in relation to enforcement, whatever the offences; we strongly support that. I hope that the noble Lord, Lord Alli, and the noble Baroness, Lady Walmsley, are reassured by that. Secondly, the points made by the noble Lady, Lady Saltoun of Abernethy, indicate some of the problems in the current draft of Clause 74. Thirdly, on the Prison Service's approach to condoms, the precise definition in Clause 74 does not affect what the policy is. I shall not go further than that at the moment; we are discussing the Sexual Offences Bill rather than wider prison policy.

We believe that sexual activity in public places, which we agree entirely includes public lavatories, can cause outrage or offence to those who witness it or become aware of it by other means, such as hearing what is going on. No one should have to witness or experience such activity as they go about their daily business. Our aim has always been to ensure that the law provides sufficient protection from such behaviour, which everyone in this House feels should take place in private; that means "not in a public lavatory".

Setting the Boundaries proposed a new additional public order offence, as the noble Baroness, Lady Blatch, identified.

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