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Lord Stoddart of Swindon: My Lords--

Earl Russell: My Lords--

Noble Lords: Earl Russell!

Lord Richard: My Lords, again, with the greatest of respect, I do not think it helps anyone if noble Lords just shout across the Floor of the House. If my noble friend Lord Stoddart feels that his contribution to this debate is as essential as he seems to suggest, no doubt the House will be polite enough to listen to it after we have heard from the noble Earl, Lord Russell.

Earl Russell: My Lords, when the noble Lord, Lord Habgood, asked on what grounds it is proper to discriminate, he went to the very heart of this debate. I was reminded of a passage in Lord Baden-Powell's Scouting for Boys which I first read when I was 13. A Japanese applicant for the Army was turned down because of his bad teeth and he reported thereafter that one was nowadays expected not only to kill the enemy but also to eat him. Of course, Lord Baden-Powell, explained afterwards that good teeth were relevant to fitness to be a soldier and that cradling a rifle against one's teeth when one had an abscess was not always reliable.

Therefore, we have to ask what forms of discrimination are proper to the nature and purpose of the criminal law. Here we come to the questions raised by the noble Lord, Lord Mishcon--the Finality Jack of this debate, if I may so describe him. As I understand it, the criminal law is designed to protect us against injuries inflicted upon us by others. I accept the legal maxim volenti non fit injuria (to a willing person there is no injury done), but it is not the purpose of the criminal law simply to say, "I'm going to prohibit it because I dislike it". It is not even the purpose of the criminal law to say, "I prohibit it because I disapprove of it".

There is practically no one of us in this Chamber who does not take part in one activity or another which some of our fellow subjects would like to ban. I speak as a smoker. I concede against my own interest that those who would wish to ban my activity have a much stronger case to make than the case made by the noble Baroness, Lady Young. However, before the House goes down that road, I shall ask noble Lords to consider what they will feel about those who would wish, as many of us have in years past, to ban the consumption of alcohol in any form whatever. As soon as one says, "I'm going to ban it because I think it is wrong", one is on a very slippery slope. The only valid ground for banning things is because they inflict harm on other people who do not wish it done to them.

I hope the noble Baroness, Lady Mallalieu, will forgive me for saying that I listened to her speech with a certain pride. My first attempt to argue the case for

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non-discrimination was over the admission of women to the Oxford Union. Your Lordships may not now believe that that created quite as much moral outrage as this proposal has done. I remember Mr. Brian Walden, when he was president, being asked what reasons there were against the admission of women. He replied, "There were no reasons; there are prejudices". I do not ascribe my success in getting that through to my own oratory, nor even to Paul Foot's discovery of his gift for satire, which was the high point of the debates, but for their realisation that they would have to debate it every year until they agreed to it. They thought at first it was a fate worse than death. If having the noble Baroness in the presidential chair is a fate worse than death, then death is a great deal less alarming than I supposed! Talking to a good many of your Lordships, I have noticed that there is some confusion about the concept of a sexual orientation. There is a sense of people being able to choose. I do not think they remember what St. Augustine of Hippo said; namely, that sexual feelings are not under the control of the will.

Probably about 10 per cent. of your Lordships who are listening to me are left-handed. Attempts have been made to make out that left-handers are unequal. If anyone doubts that, they should think of the meanings attached to the word "dexterous", and even more to the word "sinister". When I was young there were still parents who used to attempt to make their children right-handed by smacking them until they were. All they ever succeeded in doing was producing a stammer. Many people hesitate for a long time before they know whether they are right or left-handed. It does not mean they are waiting to choose. It means that the development is not yet complete and that it has not yet emerged. I believe a sexual orientation is much more like that.

The BMA states--and I agree--that a common feature of these factors that cause a sexual orientation is,


    "that they operate at a much earlier age than 16".

The noble Lord, Lord Mishcon, said there was no equality between the normal and the abnormal. Suppose he had worded that, "There is no equality between the usual and the unusual". That is a very different statement. I think the second statement would be more material to the case.

We have had an argument put forward about equal moral authority. It is difficult for all of us to concede equal moral authority to things of which we passionately disapprove. That is why parliamentary debate is so difficult. That is why the recognition of the concept of a loyal opposition in politics took nearly two centuries to learn. We have learnt in Parliament that the way to deal with profound moral disagreement is by agreement on the rules of engagement. That is the ground on which I believe the noble Baroness, Lady Young, and I are in complete agreement. That is the common ground between us on moral matters. I think that is what John Stuart Mill was groping for. I do not think we can say that things are immoral simply because we happen to disagree with them; still less can we ban them simply because we happen to disagree with them.

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I say to the noble Lord, Lord Quirk, that all sexual activity carries some medical risk but that does not appear to deter most of us. My sister-in-law, who used to be assistant editor of the Lancet, assured me that the medical risks of celibacy were even greater.

Lord Quirk: My Lords, I am grateful to the noble Earl for giving way. I assure the House that I shall speak briefly. This is an argument of reductio ad absurdum. I was not arguing on the grounds of prejudice, and I was arguing not on the grounds of equal danger. I was simply quoting medical authorities that showed that anal intercourse was very much riskier than vaginal intercourse. That, I think, is undeniable.

Earl Russell: My Lords, if the noble Lord had listened carefully to me he would have observed that I did not attempt to deny it. I said that danger does not normally deter people from the only type of sexual activity to which they are drawn. I think that goes for all of us.

Much of this debate has concentrated on the amendment moved in another place by Mr. Joe Ashton. Here I think the noble Baroness, Lady Young, and I have a good deal of common ground. As my noble friend Lady Thomas of Walliswood said to me when we were discussing this matter, non-discrimination is a basic Liberal principle. Preventing the abuse of power is also a basic Liberal principle. But that is wide of the issue of this amendment because the need for protection applies to homosexuals and heterosexuals equally, as indeed Mr. Ashton conceded.

I think the noble Baroness and I agree that Mr. Ashton's amendment was too widely drafted. I must declare an interest in that view. Being married to a former pupil and after 35 years of happy marriage I am quite unable to bring myself to believe that we did anything wrong. There are two categories where I think we should concentrate the protection. One is those who are in loco parentis and the other is those who use fear or favour derived from an official position to obtain sexual favours. I think that is roughly the ground of our agreement. I hope that the noble Baroness will correct me if I am wrong.

The Government wish to tackle this within the context of a review of sexual offences. Since we have also the review of the Equal Opportunities Commission of the law on sexual harassment which must be fitted in with the rest of the jigsaw, that seems to me to make sense. We cannot do it in this Bill. Mr. Ashton's amendment criminalised sex between people who are nevertheless free to marry. One cannot leave that to be the case; it must be changed.

I believe the Government are totally sincere in the undertakings they have given not only because I believe they are honourable men and women but also because it goes along with the way the work is going, and it goes along with their own interest. I accept the assurances Mr. Michael and others have been given. But if by any chance I should be wrong, I give an assurance to the noble Baroness, Lady Young, that if the Bill on sexual offences comes before us and it does not have any such protection, if she and I can agree on the draft of an

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amendment on the lines which we have discussed--and I believe we can--I shall put my name to it together with hers. To that I believe the Government might listen.

It is easy to be too over-protective of the young. By sheer chance I was reading last weekend a speech made in another place which argued about a Bill to prohibit marriage in Oxford and Cambridge heads of houses. The speaker said that the mere sight of women was so exciting that young men became quite unable to study. I know that is not true. That is being over-protective. I fear we may make the same mistake again today.


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