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Lord Molyneaux of Killead: My Lords, I fully support both amendments, particularly the one providing for the application to Northern Ireland. I agree with the noble Lord, Lord Fitt. The representations made to him are common to all noble Lords, as the noble Lord, Lord Glentoran, said, and they have all homed in on one specific problem. It is clear from our correspondents that, whether or not they regard the common law as suitable for the debate, what is required here is something more specific, such as the amendments. I warmly support both amendments.

Lord Clarke of Hampstead: My Lords, I did not intend to intervene. I apologise to the noble Baroness, Lady Noakes, for not being in the Chamber when she moved the amendment. I had popped out to get my notes, which I still cannot find. I decided not to say anything because I could not say it in a constructive way but, having listened to the debate, I cannot in all conscience sit here and support the Government. I intend to support the amendment if it is moved.

The noble Lord on the Cross Benches suggested an alternative. I believe that most people in this country would fail to understand why the House of Lords would reject an amendment which is clearly designed for the protection of decency and people's feelings. I am not a lawyer—I thank God that I am not a lawyer—and I cannot speak with the eloquence of some of the lawyers in the Chamber, but I can speak for ordinary folk. They will find it very difficult to understand why the amendment, if it is moved, is resisted by the Government.

There is plenty of time for the Government to put in the safeguards contained in the amendment and to bring back the matter at a later stage. It is as simple as that. As it stands, if the amendment is not accepted by the Government I shall have no alternative but to oppose them in the Lobbies.

Lord Tebbit: My Lords, perhaps I may draw attention to the curious situation which arises under the present law as enunciated by the noble Lord who

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spoke from the Liberal Democrat Front Bench. Under the law as it stands, it would seem that for two persons or more to have sex in a public lavatory would not be an offence until the moment that someone else entered that public lavatory. They would be performing a perfectly legal act until that moment. Is this a sensible and logical way in which the law should be constructed?

Another aspect should be borne in mind. Not all public lavatories are terribly large. If a group of persons should go together to such a site and among them there were those who engaged in sex, no offence would be committed because none of them would be outraged.

There is an ultimate absurdity. If there are only two people and no one else is there—no offence; one person entering—offence created; a whole mass of people there, all for the same purpose—no offence created. Surely the noble and learned Lord on the Government Front Bench is not going to defend such a situation when there is a perfectly obvious, simple and straightforward amendment before the House which will get him out of that hole.

Lord Falconer of Thoroton: My Lords, there is not much dispute about the fact that public toilets should be used for the purpose for which they are built. There is equally not much dispute that people do not want public toilets used in a way that upsets, outrages, offends and distresses people of a reasonable disposition. There is no dispute about that. The question is how to achieve it.

We take the view, for the reasons broadly advanced by the noble Lord, Lord Thomas of Gresford, that the common law, subject to one amendment, is capable of dealing with the problem. It is flexible and it is based on the propositions advanced in the House that the conduct causes offence, upset, harassment and outrages public decency. That is the problem in relation to the law.

The noble Lord, Lord Tebbit, said that surely someone has to see what happens. If no one is there, there is no offence. That is not right. If a reasonable man were there—even though he is not—and could see it, that is sufficient. The noble Lord, Lord Tebbit, is shaking his head. Perhaps he will tell me where I am wrong.

Lord Tebbit: My Lords, the noble and learned Lord is missing the point. The proposition that I advanced was that for those concerned in committing the act, it is a perfectly lawful act today provided that no one else comes into the public lavatory. The moment someone else comes in, it becomes unlawful. Surely that is not sensible.

Lord Falconer of Thoroton: My Lords, it would not be sensible if that were the proposition I am advancing. However, the proposition I am advancing is that if such an act occurs, it is not a question of whether someone is there at the same time but whether the act

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is capable of being seen if someone were there. That is what we are proposing and it is a perfectly sensible way of dealing with the issue.

What is the alternative being suggested? The amendment of the noble Baroness, Lady Noakes, specifies that certain activities have to be committed. I shall not read them to the House because they are printed on the Marshalled List in Amendment No. 164 and are fairly precise. In the law as we see it operating, if something were to happen behind a cubicle door, for example, it would not be necessary to identify precisely what act had occurred, it would be enough, if looking at all the circumstances, people using the toilet were outraged, offended or distressed by what happened.

As regards the noble Baroness's amendment, particular, specific acts have to be identified. I fully understand the motive behind the amendment, but I can assure noble Lords that it is not going to have the effect which the noble Baroness hopes because of the specific problems of proof. Like the noble Baroness, Lady Blatch, we do not want to put CCTV in every cubicle, which is the effect of the amendment of the noble Baroness, Lady Noakes.

We are united in what we wish to achieve: using the law based on outraging public decency or offending or distressing people who visit public lavatories is the appropriate way to deal with it. It is effective. We thought about the clause proposed by the noble Baroness but came to the conclusion that it would not work for the reasons I have indicated.

I hope that noble Lords will reflect on what I am saying. I do not believe that there is any dispute about the aim which we wish to achieve.

Lord Glentoran: My Lords, can the noble and learned Lord explain how he sees sufficient deterrent to make it safe for children to use public lavatories? A major thrust in the mail I have received is that parents are frightened that there will not be sufficient deterrent for them to feel comfortable that their children can go into public lavatories.

Lord Falconer of Thoroton: My Lords, I am making it an enforceable crime rather than one which raises difficulties of proof which the proposal of the noble Baroness, Lady Noakes, provides. We are proposing something that is workable and can be proved. I earnestly suggest that noble Lords look at what is proposed and deal with the issue of how it is dealt with behind a cubicle door.

Lord Thomas of Gresford: My Lords, does not the noble and learned Lord agree that if this amendment were accepted it would be necessary in each case for the prosecution to prove either A, B, C or D, and that that would produce a much more difficult burden of proof

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on the prosecution than to prove outraging public decency, which is directed to the outrage which people feel, not the specific act which has been carried out?

Lord Falconer of Thoroton: My Lords, that is obviously right and I understand that that is what the noble Baroness wishes. She wants the law to be that even though the offence takes place behind closed doors in a public lavatory where proof is difficult, one of the specific acts needs to be proved. If and in so far as the noble Baroness is seeking to suggest to the House that that would make it easier to get convictions, she is not right.

We share the same aim. I believe that we achieve that better than the noble Baroness's amendments. As regards the position in Northern Ireland in relation to Amendment No. 192, Article 19 of the Criminal Justice (Northern Ireland) Order 2003, which will be enacted in July, makes it an offence for a man to commit buggery with another person unless it is in a private place. Paragraph (4)(b) states that a public lavatory is not a private place.

As we have made clear throughout the course of this Bill, while we are dealing with certain aspects of the law in Northern Ireland, there is a much wider review going on there which will embrace a number of these issues. I hope that noble Lords will be reassured by what I say on that matter.

I conclude by saying that we all share the same ends. We are trying to be effective in what we are doing, but I am not so sure that what the noble Baroness, Lady Noakes, is suggesting is that effective.

Baroness Blatch: My Lords, why was it that the offence of gross indecency, which worked and covered these acts, was repealed? If the only problem was that it discriminated against homosexuals, the offence could have been extended to cover all sexual acts in public toilets.

Lord Renton: My Lords, before the noble and learned Lord replies, I point out that the present law is inadequate. The repeal of the offence of gross indecency makes it even more inadequate. The Government are simply trying to preserve the present position, which will not do.


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