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Lord Renton: My Lords, I warmly support my noble friend's amendment and the remarks of my noble friends Lady Blatch and Lord Glentoran—although I shall confine myself to the position in England and Wales. Even the present law on sexual behaviour in

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public lavatories is inadequate. The repeal of the offence of gross indecency will make the position even worse. In fact, it will make it terrible.

The Government, by legalising sex in public lavatories, are creating the most appalling possibilities. It is said that photographic apparatus will be used to record anything that goes wrong. I cannot believe that every public lavatory in the country would have such an apparatus—or that if it did, it would necessarily cure the matter.

One of the things we have to worry about most under the present law, but even worse, under the repeal of the law relating to gross indecency, is the effect on young people, including small children. The amendment tabled by my noble friend Lady Noakes provides a solution. People could argue on some of the detail and may think that they could suggest a stronger and better solution, but I doubt it. The amendment is well phrased. I hope that the Minister will keep an open mind on the matter and not merely put forward the decisions the Government already seem to have wrongly taken.

Lord Campbell of Alloway: My Lords, I raise a short point of construction. Of course I agree with the amendment's principle; it is wholly correct. But I am a little worried and seek clarification. Subsections (2)(c) and (d) have the qualification,

    "other than through that person's clothes".

Subsection (1)(b) specifies that the touching must be intentional, and subsection (1)(c) that "the activity is sexual". Does that mean that if it is done through another person's clothes, no offence is committed? It seems a clumsy way of going about a prohibition. I raise the point only because the qualification does not ride totally with the fundamental spirit of the amendment, with which I am wholly in agreement.

Lord Hylton: My Lords, like other Members of your Lordships' House I have received a number of letters in support of the amendment. One or two have even come to me from Northern Ireland. The English ones came from doctors, parents and general members of the public. I urge the Government either to accept the amendment or to produce their own improvement on it.

Lord Fitt: My Lords, I support the amendment and reinforce the remarks of the noble Lord, Lord Glentoran. In this House your Lordships will recognise that I have restricted myself largely to events as they unfurl in Northern Ireland, particularly in the political arena. But taking into consideration all the political developments that have taken place over the past 30 years, I have rarely seen such an avalanche of anger as I have seen from Northern Ireland in relation to the Bill. It was not one or two letters or telephone calls, but the mass of people in Northern Ireland—Catholic, Protestant, Unionist and nationalists. They cannot believe their eyes or ears when they take into account what the Government are going to permit in Northern Ireland.

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I rise to warn the Government, and here I will be attacked by some people. If the amendment is not carried and sexual activity is permitted in toilets, even though it be in the cubicle with the door closed, one can see the feet under it and one will be totally aware of what is going on. I can see fathers going into those toilets with their sons and being so disgusted about what their young son is going to see that it will give rise to an outbreak of homophobia. Some fathers will feel as I would feel were I 20 years younger and saw such activity in a public toilet; like taking physical action against those involved. If that happens, the Government will have no one to blame but themselves. Public toilets are public. They are meant for a certain usage. They were never meant under any distinction for the activity we are discussing today.

I feel embarrassed that the noble Baronesses had to put down in such graphic detail the wording of Amendment No. 164. They must have found it distasteful to have to put such words into their amendment. But I know that they are motivated by trying to prevent an awful evil from being committed and appearing to be sanctioned by the Government. I can only reinforce what the noble Lord, Lord Glentoran, said. He spoke for the majority of people in Northern Ireland, as I do standing on my feet at this moment. This permission for sexual activity in public toilets is anathema to all right-thinking people, not only in Northern Ireland but in the rest of the United Kingdom.

Lord Thomas of Gresford: My Lords, we on these Benches share the antipathy expressed to sexual acts in public toilets. We too believe that public toilets should be used for the purposes for which they were built, as the noble Lord, Lord Fitt, said. However, we think that the best way of dealing with the matter is that such toilets should be clean, safe and supervised and that the sanction of the criminal law should be applied in a proper way. Therefore we agree with the Government that the best way of dealing with the matter is by using the common law offence of outraging public decency.

The noble Baroness, Lady Blatch, said that the common law was archaic. In fact it is flexible. A reliance has been placed on a case named Mayling, which was decided in the court of criminal appeal in 1963 with the judgment given by Mr Justice Ashworth. It is of some authority, but not of the highest authority. Mr Justice Ashworth decided to translate the words of the indictment in this way:

    "the prosecution has to prove, first, that the act complained of was committed 'within the purview of' . . . divers of Her Majesty's subjects".

He construed that as being "in the sight of". That is where we get the idea that there is no criminal offence unless what happens takes place in the sight of a particular witness.

But purview does not simply mean in the sight of. It also means in the experience, the contemplation or consideration of a person who happens to witness what is going on. I agree entirely with the noble Lord, Lord Fitt, that that would cover a person hearing something in a public lavatory. It does not have to be within his sight.

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The offence of outraging public decency is very old and wide. The noble and learned Lord, Lord Simon of Glaisdale, in a case decided in the committee of the House of Lords in 1972, set out what it covers: indecent exposure, acts of sexual indecency in public, indecent words—and, rather more archaicly—disinterring a corpse, exhibiting deformed children, exhibiting a picture of sores and procuring a girl to be taken for prostitution. The noble and learned Lord said that they have a common element in that, in each, offence against public decency was alleged to be an ingredient of the crime, except Grey where it was said to be "disgusting and offensive":

    "so disgusting that it is calculated to turn the stomach".

Conduct that outrages public decency is therefore widely defined. The noble and learned Lord said later in his speech that he did not think it would necessarily negative the offence that the act or exhibit was superficially hid from view. Later he said that moreover the offence was, in his view, concerned with recognised minimum standards of decency, which are likely to vary from time to time.

The Government have taken the right course not to prescribe in complete detail—as the amendment seeks to do—the conduct to be criminalised. The fact that it now becomes an offence which is triable in the magistrates' court will mean more prosecutions on this basis. A wide and flexible definition is much more likely to attain the result that most noble Lords and their correspondents are hoping for than the proposed amendment.

6.30 p.m.

Lord Alli: My Lords, I agree with much of what the noble Lord, Lord Thomas of Gresford, said. I wish to make one or two points. I am grateful to the noble Baroness, Lady Noakes, for the tone of the debate. I welcome the way in which she has conducted and constructed it.

Let me say one or two words about the history of sex in public lavatories as it pertains to gay men. We are in a transitional period and the practice is dying out. If the noble Baroness, Lady Blatch, wishes to intervene, she may do so.

Baroness Blatch: My Lords, I know that not to be the case. Only very recently some public toilets had to be razed to the ground by the public authority because it could not cope with the public nuisance of people collecting at the public toilets for sex with unknown strangers.

Lord Alli: My Lords, it is that myth that I wish to challenge and to ask for a little understanding. A study of the history of homosexuality in this country shows that for much of the past century homosexuality was illegal and homosexuals were driven underground. That process forced them to meet in places where the practice is deemed now to be unacceptable.

I am not defending sex in public lavatories—I do not believe I can. I agree with much of what has been said: public lavatories are designed for a specific purpose,

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not for having sex in. I do not disagree with that. But for generations—not my generation, the generation before me—homosexuals did not have the meeting places that my generation, the younger generation, now have. They did not have a much more open society, where they could meet people at dinner parties or at work and where the tolerance level is much greater. It is this which will change the practice more than anything else. It is a practice which is well on the decline.

My second point is simply this: I have an inherent objection to locking people up for having consensual sex. I do not feel comfortable with it. Whether the people involved are heterosexual or gay, whether they are having sex in a car, whether they are young people coming back from a party at Christmas time and using the works' lavatory or a public lavatory, locking up two young people and sending them to prison for having consensual sex seems the wrong method. Those are the two points that I wanted to make.

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