With this it will be convenient to discuss the following:
Amendment No. 227, in
clause 67, page 32, line 33, leave out paragraph (b).
Government amendments Nos. 119 and 120.
Amendment No. 228, in
clause 67, page 32, line 35, leave out subsection (2).
Government amendments Nos. 121 and 122.
Amendment No. 229, in
clause 67, page 33, line 6, leave out paragraph (b).
We come now to the famous, or infamous, clause 67, which covers the offence of sexual activity in a public lavatory. When the issue was debated in the other House, the Government were defeated and clause 67 was inserted into the Bill.
The Government had a choice. We could have returned here with an amendment that would have knocked the clause out of the Bill. We have chosen not to do that. The Government amendments in this group are designed to make clause 67 workable and to remove the option of trial on indictment and the maximum penalty of two years imprisonment attached to it.
Clause 67 has a long and complex history, and I do not intend to go through it this afternoon. However, I shall make one thing clear: the Government's policy on sexual activity in public lavatories is that we are against it, lest there be any doubt about that. Toilets are built for other purposes, and those who want to use them for those purposes should be free to do so without having to witness sexual behaviour that ought properly to take place in private. It is unacceptable, whoever is engaging in it and whatever their sexual orientation. That has always been, and remains, the Government's policy. Section 5 of the Public Order Act 1986 and the common law offence of outraging public decency are capable of covering this behaviour where it causes harassment, alarm, distress or offence. We listened to those who argued that it was important that the law sent out a specific message that sexual activity in public toilets is illegal.
There is a long and complex history to this clause. The difficulty in going down the route that my hon. Friend tempts me with is that there may
then be some doubt as to whether the Government think that sexual activity in a public lavatory is not okay. We do not think that it is okay. We have therefore decided to send out a clear signal. The Government already have a strategy that would deal with sexual activity in a public toilet, but through this clause we are adding a further offence and further powers, so that there is no doubt that sexual activity in a public lavatory is not acceptable.
The offence in the Public Order Act 1986, as well the common law offence of outraging public decency, will remain in force. As my hon. Friend the Member for Rhondda (Mr. Bryant) and other Committee members know, an amendment to the Criminal Justice Bill makes the latter offence triable either way. That amendment makes the offence more flexible and thus more usable in practice. I ask for your forbearance, Mr. Gale, and for the patience of Committee members as I try to put the jigsaw back together again by referring to the various Government amendments before us.
Amendment No. 118 removes the reference to ''public lavatory'' in subsection (1)(a) and inserts the full definition of public lavatory in that subsection. Amendment No. 121 deletes the definition in subsection (3) because it is clearer to have it in subsection (1)—the definition remains absolutely the same. Government amendment No. 119 substitutes the words in subsection (1)(b) that an offence is committed if a person engages in ''activity within subsection (2)'' for ''an activity''. Paragraph (c) specifies that it is a sexual activity. That paves the way to deleting subsection (2), which specifies the sexual acts covered by the clause.
Subsection (2) is the crux of why we consider the current clause 67 unworkable. It would be difficult to prove that any one of the specified sexual activities had actually taken place when the activity took place behind a close cubicle door.
Indeed, the hon. Gentleman is right.
Government amendment No. 120 deletes subsection (2), which specifies the activities covered by the clause, and replaces it with a new definition of sexual activity. It is important to emphasise that that definition differs from the general definition under clause 79 because it excludes activity that a reasonable person would think was sexual only if they knew the purpose of the person engaging in it. It therefore captures only explicitly sexual activity, excluding any behaviour that is ambiguous in its nature and circumstances.
We believe that removing the reference to specified sexual acts will help considerably in making the clause more workable in practice, because it will make it possible to conclude that sexual activity is taking place from what can be heard, as well as from what can be seen, and from surrounding behaviour. Moreover, it will require proof that sexual activity of some kind is taking place but does not require a person to say which of a list of specified acts is involved.
Government amendment No. 121 deletes the subsection that defines ''public lavatory'', as Government amendment No. 118 has made that unnecessary. Government amendment No. 122 would specify that the maximum fine on summary conviction was level 5 on the standard scale, rather than the statutory maximum fine. That is a matter of drafting to make the Bill consistent with other legislation and is not a significant change.
Government amendment No. 122 would remove the possibility of trial on indictment and the maximum prison sentence of two years that flows from it. Although we believe that sexual activity in public toilets is wrong, we are not persuaded that it merits being dealt with at the Crown court or that a maximum sentence of two years is proportionate to the behaviour involved.
Where the behaviour is such as to constitute outraging public decency, an unlimited prison sentence is available, subject to that not being disproportionate to the behaviour engaged in. We take the view that a maximum penalty of six months imprisonment and/or a fine is the appropriate maximum sentence.
I commend the amendments to the Committee as the sensible way forward, making the clause workable but also making it absolutely clear that we are against sexual activity in public toilets.
I simply invite my hon. Friend to imagine a set of sexual activities, some of which are more serious and outrageous than others. Indeed, the more outrageous, the more likely it will be captured by the offence of outraging public decency. Activities of a less outrageous, less serious nature might be more appropriately dealt with under the clause.
I think that I should sit down and let those who wish to contribute to the debate do so.
May I say how much I welcome the approach that the Government have taken on this subject? There was a lot of public comment and, dare I say, hot air when the amendment was tabled in the Lords, and the fact that the Government were prepared to consider the matter, rather than simply come to Committee asking us to delete the clause—as appeared would be the case at one stage—is greatly to their credit.
The way in which the Government have approached the matter is correct; that is, they are simplifying what the other place sought to do. I have no difficulty with the simplification, or with the removal of subsection (2). Indeed, I also believe that the Under-Secretary is right that the offence should be summary only, as plenty of other offences are available. The message that we need to send out is that sexual activity in public lavatories is unacceptable,
irrespective of whether it is behind the cubicle door, because that is not the purpose for which public lavatories were provided. I think that a summary offence is sufficient to get that message across.
Our amendments are probing amendments and, as the Under-Secretary may have noticed, they move in the same direction as his, although they do not do so as well as his. Our amendments include making the offence summary only and deleting subsection (2), which we thought took a rather convoluted approach to the matter.
There is one aspect of what has been done that I still find slightly more difficult. That might be because I did not understand the Under-Secretary's brief explanation of amendment No. 120. It supplies a definition:
''For the purposes of this section, an activity is sexual if a reasonable person would, in all the circumstances but regardless of any person's purpose, consider it to be sexual.''
From that, I assume that, if a person can explain that although it might have appeared to be sexual the purpose was otherwise, he would be acquitted—or would that have to be disregarded? The amendment is curiously worded. Although I was totally satisfied by the Under-Secretary's explanation, I then looked again at the amendment and I found it difficult to match what he had said with what I was reading.
Provided that the Under-Secretary can reassure me on that, and I hope that he can, I wish simply to reiterate that I greatly welcome the Government's approach and I will not oppose their amendments.
I, too, think that the amendments would improve the Bill. The Liberal Democrats in the other place found that they could not support the measure, and wanted the entire issue to be dealt with as a public order offence. We are happy to have discussions about the way forward, but I think that everybody is clear that sexual activity in public toilets is unacceptable. They are for the community, and they must be available at all times to everybody, including children. That is very important.
It was kind of the Under-Secretary to hold a meeting with my hon. Friends the Members for Romsey and for Southwark, North and Bermondsey (Simon Hughes) and I. We asked for the matter to be incorporated into the Criminal Justice Bill as a public order offence. The Under-Secretary explained that that option had been explored, but that it was not possible. We accept that, but we still feel that the way to deal with this issue is through separate legislation as a public order offence. We appreciate that that would take time, and that now that the issue has been raised there is at least some wisdom in proceeding with the Bill until something better can be put in place. Will the Under-Secretary consider the introduction of future legislation to put the offence into a better context as a public order offence? I would be happy for him to write to me about that.
Because we believe that the problem should be dealt with in this way, we wonder whether the amendments should have included the words ''causing harassment, alarm and distress''. We understand that that would be
a test in a public offence case. If we accept the clause at this stage, it is as a step towards a better way of tackling the problem.
I have been concerned about the interpretation of the word ''sexual'' in this context. I do not want to embarrass the Under-Secretary, but it would be helpful if he placed on the record where there are some dividing lines. This question was raised with me: ''Does sexual in this context include a chaste kiss?'' I presume that it does not.
I assume that the drawbridge—as it were—comes up if there is stronger kissing. However, there are greetings and affectionate touches that are not necessarily sexual. We must be clear about that. We do not always match being affectionate with a sexual move. I ask the Under-Secretary to contemplate that.
Amended, the clause will be a massive improvement on what we were faced with in the first instance, so we will not oppose the amendments. However, I place on record that we do not regard it as the permanent solution to the issue that we are considering.
Along with all hon. Members, I do not defend sex in public lavatories. No part of the community has argued that case from the moment when it was determined that the Bill should contain a clause making explicit the prohibition of sex in public toilets. I do not think that anyone argued that it was legitimate for people to engage in sex in public toilets, even during the hefty debates in the House of Lords.
However, the clause is unnecessary and discriminatory. Curiously enough, it is worth bearing in mind that the clause is the only remaining specific legislation relating to homosexual acts. Although the clause itself does not refer to homosexual acts, most hon. Members would accept that it is included because homosexual men engage in sex in public toilets. The cottaging phenomenon was referred to at considerable length in the House of Lords debate, which has given us much of the wording in the clause.
In my view, that that is not why the clause is included. I remember an instance from my time as a barrister—I alluded to it on Second Reading—of activities in the public lavatory of a court in this country, where a girl wished to give her boyfriend a good time before he was sent down for two years. I remember the disturbance that was caused and what resulted from it. I assure the hon. Gentleman that the clause is not aimed at homosexual practices. It is aimed at any sexual activity in a public lavatory, whatever form that may take, between people of either gender.
I am absolutely certain that the hon. Gentleman has no desire to use the clause to target homosexuals. The truth of the matter is, however, that if it were not for the practices that were referred to in the House of Lords, which were all to do with homosexual cottaging, the clause would not have got on to the front page of the Daily Mail and back into the Bill.
Although I hate to do it, one can discuss the long-term provenance of the clause starting in 1533, when Henry VIII made it explicit for the first time in British law that buggery should be illegal. The law was changed in 1630, when the Earl of Castlehaven was convicted of buggery, despite none having occurred, merely because there was evidence of emission. In other words, sex between two men has been illegal since 1630.
The major change that resulted in the current version of the clause happened when the Criminal Law Amendment Act 1885 was being dealt with by the House. At the very last moment, Labouchere tabled an amendment, which is known nowadays by many people as the Labouchere amendment. It said:
''Any male person who, in public or private, commits, or is a party to the commission of, or procures, or attempts to procure the commission by any male person of, any act of gross indecency shall be guilty of misdemeanour, and being convicted shall be liable at the discretion of the Court to be imprisoned for any term not exceeding two years, with or without hard labour.''
That was inserted into a Bill that was solely about the rights of young women and the abuse thereof. None the less, it was agreed late one night. It became known as the blackmailer's charter, because for the first time British law contained the phrase:
''Any male person who, in public or private''.
In Victorian society it was felt that people could make up any event that might or might not have happened. Indeed, there was a raft of prosecutions under that clause, the most notable being Oscar Wilde's being sentenced to two years hard labour in 1895.
Many hon. Members will be saying to themselves, ''Of course, the clause refers to the offence of gross indecency, which we are getting rid of''. That is certainly one of the provisions that will be repealed under the Bill. However, section 12 of the Sexual Offences Act 1956—the buggery clause, which was amended in 1994—set out for the first time an explicit reference to sex in public toilets. It is a direct translation of the original Labouchere amendment into the 1956 Act. The legislation was amended in 1994 to allow buggery in private, but privacy was determined solely to mean when not more than two people were involved and when the buggery was not taking place in a public lavatory. Section 13 of the 1956 Act continued the other half of the Labouchere amendment on gross indecency between men, whether in public or private.
That was changed under section 1 of the Sexual Offences Act 1967, whereby a consenting act between two men in private was allowed. That provision was introduced by Leo Abse and supported by the then Labour Government. Subsequently, the age of consent was changed from 21 to 18, and it is now 16. The 1967 Act incorporated sections 12 and 13 of the 1956 Act and made it explicit that, for an act to be in private, it had to involve no more than two people and could not take place in a public lavatory. The provenance of the clause under discussion is the desire to maintain that legislation, relating as it does to the 1885 Labouchere clause.
The clause is discriminatory. While I have enormous respect for the Government in light of all
the changes that they are proposing and for their attempt to make the Bill not discriminatory, what makes it discriminatory is that the majority of public toilets in this country are unisex. That means that the public lavatories on the street are places that may be used by two men or two women at the same time. I have searched in vain to find cases in which two women have been prosecuted for having sex in a public toilet. There are a few instances of sex in public toilets being prosecuted under other legislation, but usually the prosecution comes under the Public Order Act 1986.
My second point is that the clause is wholly unnecessary. The Public Order Act can deal perfectly well with each case of sex in a public lavatory. There is no need for specific legislation to bar sex inside a public lavatory.
I am grateful to the hon. Gentleman for giving way. I hope that he will forgive me for saying that he is being a little over-sensitive in his historical description and with regard to what he rightly points out is discrimination against homosexual people. He asked what the difference was between doing it in a lavatory and doing it in the park. While it is clearly obvious to everyone when people are having sex in a park, it is not quite so obvious in a semi-private place, such as a public lavatory. We want public lavatories to be semi-private; otherwise, we would not want to do our business in them. It must be made clear that the Public Order Act should still apply to such places and that people should not be having sex in them.
The hon. Lady has given the game away by pointing out that a public lavatory is semi-private, whereas someone engaging in sex in a public place is likely to cause more alarm and distress. For example, I have just moved house, but until April I lived in a house at the top of a country lane in the Rhondda. Most nights when I came home, two or three cars would be parked outside my front gate. The area was widely known as lovers' lane. Such activity did not cause me much offence and I did not do anything about it, but it could have caused offence to others if they had lived in that house and such behaviour was troublesome to them.
Those in the second Chamber made the same point about sex in public toilets when they referred to the element of distress that is caused not by the nature of the sex, but by the fact that it takes place. Again, people parked outside my house, or those making love in St. James's park by the bandstand or—as I understand happened before my time at the House—in the showers at the House of Commons a few years ago would be subject to the Criminal Justice and Public Order Act 1994. I believe that we should use that Act for cases of sex in public toilets, rather than have a specific clause in the Bill.
The hon. Gentleman knows the distinction between the Public Order Act and the clause: the Act requires an element of proof about the
disturbance to public order and the clause represents a blanket prohibition. What is wrong with a blanket prohibition on sex in public lavatories if the Committee considers that they are not places where people should engage in sexual activity? That is the issue and that is what troubled those in the other place. Once we have put this legislation into the shape that the Government propose, nobody on the Committee should have difficulty with the principle underlying the clause.
Indeed, but there is no need for the Bill to include an unnecessary clause when the offence in question is already covered elsewhere. The only element of the clause that is distinctive, as the hon. Member for Beaconsfield (Mr. Grieve) pointed out, is the fact that the offence in question would be happening in a public lavatory. My question is merely whether having sex in a public lavatory is worse per se than having sex immediately outside a public lavatory, in a public shower, in swimming baths or anywhere else.
The hon. Gentleman has missed the point. What troubled those in the other place was that it would be possible to have sexual activity in a public lavatory, in a cubicle and therefore not visibly, that could escape the scope of the Public Order Act in certain circumstances. It was their anxiety about that and the fact that they considered it extremely undesirable that public lavatories should be used for sexual activity, whether behind the cubicle door or anywhere else, that led them to propose the clause. On that I agree with those in the other place. I got the impression that most Committee members, including perhaps the hon. Gentleman, also accepted that that was correct as a principle.
Further to the point made my hon. Friend the Member for Beaconsfield, if the provision were not in the Bill there could be circumstances in which lawyers could argue using existing provisions that sex in a public lavatory with the door closed would be sex in a private place and therefore okay. That does not equate with the hon. Gentleman's argument about being behind a tree or up a lamp post.
It does, actually, because people who had sex behind trees have used precisely those provisions to try to prove that they were having sex in privacy. The only category in the law to which that does not apply is public lavatories, which is why the clause is wrong. One further point is that by including a clause explicitly on this issue, we invite and encourage the police to waste a great deal of their time, which could be spent in other ways.
I shall deal specifically with the amendments. This may seem odd to hon. Members, and I know that I am already testing their patience, but the definition of a public lavatory is still rather nebulous. Would all the lavatories in this building be counted as public lavatories? Would a public lavatory in a hotel be counted as a public lavatory? Would a toilet in a hotel room be counted as a public lavatory?
As the Under-Secretary has pointed out, and as everyone accepts, it is wholly wrong that imprisonment for up to two years should be the result of somebody being convicted of the offence in the clause. It seems curious to me to imprison anybody for any length of time for this kind of activity, and I have a question for the Under-Secretary about how it all relates to the sex offenders register. My reading of schedule 3, which refers to clause 81, is that the offence would not lead to registration on the sex offenders register, but I would like that clarified.
I want to return to a point that my hon. Friend made about police time. That aspect of the clause concerns me. I recall a conversation two or three years ago with a senior police officer at the Metropolitan police. He told me that when he first became a police officer, he was required to spend an inordinate amount of his time in the ceilings of various public lavatories and found that a demeaning experience. I see some potential problems with certain police forces.
I am grateful to my hon. Friend, and can only agree with his point, which suggests why clause 67 is, to put it mildly, unfortunate.
As I read it, the Government amendment to change subsection (2) would remove the requirement for there to be two people involved. It might be, for instance, that masturbation would then fall within the clause. Can the Under-Secretary clarify that? We also need to return to the issue that was raised by the hon. Member
for Mid-Dorset and North Poole about whether kissing counts as sexual activity.
I am pleased that the Government have chosen to table amendments. I wish that they had tabled an amendment for the full deletion of the clause, but I understand why they have not. Along with the Under-Secretary and all other Committee members, I do not want the message from this House to be that we want people to have the right to have sex in public lavatories. However, there is no point in including unnecessary and discriminatory clauses.
My pile of notes has multiplied in the past few minutes. I appreciate my hon. Friend's powerful speech. I shall deal with some of the points that he raised in detail. He has given us a flavour of the atmosphere that must have prevailed in the other House when this issue was debated.
I apologise to all Committee members, but in particular to the hon. Member for Beaconsfield, for rushing through my explanation of the matter that he raised. The activity must appear to be sexual from the nature and circumstances alone, and therefore not from the person's purpose. In this case, that is irrelevant: there may be behaviour that is somewhat ambiguous—touching oneself or another person in a certain way—but we are trying to catch the most explicit kinds of sexual activity. If there is more serious sexual activity, that more ambiguous behaviour will need to come into play. That is why it occurs elsewhere in the wider definition of ''sexual''. However, in this clause, the definition is as I have outlined.
The hon. Member for Mid-Dorset and North Poole asked whether there will be further legislation. We currently have no intention of introducing any. We believe that our provisions are sufficient. On outraging public decency, I remind her that our amendment to the Criminal Justice Bill remains, so that power will be available. Therefore, we have almost a continuum of powers and offences.
The hon. Lady asked about chaste kissing in toilets—which is an interesting concept. I think that my hon. Friend the Member for Rhondda also raised that question. The magistrates dealing with that case—if such a case were to be prosecuted—would have to look at the evidence and decide whether a reasonable person would consider a kiss of that kind to be sexual.
I turn to the speech of my hon. Friend the Member for Rhondda. The passion in his speech is understandable. He said that the legislation is discriminatory: I disagree. However, he gave the Committee a history lesson that explained why some people might feel strongly about this issue. My sense of history on this question does not go back as far as the 16th century: it goes back to the 1960s. I am a Manchester Member of Parliament, and I have lived in that city all my life. I remember the toilets around the centre of Manchester that everybody—including the police—knew were the places where gay people had to go if they wanted to engage in sexual activity, and I remember that those people were hounded. That is the history of the sense of discrimination that surrounds this question.
However, I want to point out to my hon. Friend that less than a mile from those toilets in Manchester there is now a gay village. We also have Gay Pride once a year. The whole atmosphere in relation to discrimination against gay people has changed. This clause reflects that change to some degree. I understand the sense of history, but I believe that we are moving on, in particular in relation to this matter.
Since the introduction of the Human Rights Act 1998, the police and the Crown Prosecution Service must apply—in all laws—human rights legislation. I say to those who fear that police officers might abuse their power if this clause were to be included in the Bill that they cannot do that. The legislation is clear: they cannot operate in that discriminatory way.
My hon. Friend raised the question of whether sex in the park next door to the toilets would be illegal, and he subsequently referred to the No. 39 bus—I think that that was the number—which he travels home on. Where such activity would cause harassment, alarm, distress or outrage, it would be covered under existing legislation. As the hon. Member for Beaconsfield pointed out, in relation to sexual activity in a toilet, the difficulty involves what is happening behind the closed cubicle door.
Earlier, the hon. Member for Rhondda sent me on an unfortunate train of thought. I remembered that several years ago I used to go camping frequently. I am unsure why we have this obsession with toilets, because I recall that there were communal shower blocks on some campsites where exactly the same sort of activity that is addressed in this clause could take place even today—the only difference being that it takes place in a shower cubicle, rather than a toilet cubicle. I do not understand why we are criminalising one and not the other, when the circumstances are incredibly similar.
I simply remake the point that if the activity is causing harassment, alarm, distress, or outrage, those engaging in it can be prosecuted under existing legislation. I am dealing with a specific difficulty and the fact that the clause is in the Bill. We must either knock it out or make it workable. We are proposing amendments that make it workable.
My hon. Friend the Member for Rhondda asked about registration. The answer is no, there will be no consequence in terms of registration. On the definition of the word ''public'', in relation to a public lavatory, he will know that MPs are part of the public, therefore the toilets to which he referred in this building are public. Toilets in and near the lobby of a hotel are public toilets, because the public are able to use them. We are trying to exclude toilets that are clearly private, for example in a person's home.
In answer to the question of whether the offence requires two people, no, it does not, and it never did. One person is covered by this measure.
Finally, as a local Member of Parliament as much as anything else, I have to say that the people who come to my surgery to raise issues of disquiet about public toilets do not mention sexual activity. However, they mention dirty needles, filth, the state of the toilets and the fact that they cannot get access to them when they need them. Public lavatories are for people to use and any encumbrance that prevents them from doing so, or which causes harm, must be deprecated and dealt with. In this instance it is being dealt with in the Bill.
Amendment agreed to.
Amendments made: No. 119, in
clause 67, page 32, line 33, leave out 'activity within subsection (2),' and insert 'an activity, and'.
No. 120, in
clause 67, page 32, line 35, leave out subsection (2) and insert—
'( ) For the purposes of this section, an activity is sexual if a reasonable person would, in all the circumstances but regardless of any person's purpose, consider it to be sexual.'.
No. 121, in
clause 67, page 33, line 1, leave out subsection (3).
No. 122, in
clause 67, page 33, line 5, leave out from 'exceeding' to end of line 7 and insert
'level 5 on the standard scale or both.'.—[Paul Goggins.]
Clause 67, as amended, ordered to stand part of the Bill.