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Lord Falconer of Thoroton: My Lords, the noble Baroness, Lady Blatch, says that the present law is adequate, but the noble Lord, Lord Renton, says that it is not. Subject to the amendment which we are making, which is to make outraging public decency an offence triable summarily, we believe that there is adequate and effective protection.

Lord Monson: My Lords, the noble and learned Lord claims that the Government's proposals will be effective. Is he aware that in 2001, for example, the conviction rate in prosecutions for outraging public decency was a mere 20 per cent?

9 Jun 2003 : Column 78

Lord Falconer of Thoroton: My Lords, I was aware of that, but I do not think that that conviction rate indicates whether or not the current law will be effective.

Baroness Noakes: My Lords, I thank all noble Lords who have taken part in this debate. They have made some extremely valuable points, which I do not have time to go through. My noble friend Lord Campbell of Alloway raised the issue of clothes. I borrowed the drafting from the introductory draft of the Sexual Offences Bill. The explanation is given in the Explanatory Notes. A might scratch himself through his clothes or his knee might touch another's person or crotch. That is not caught within the terms of the offence.

The issue is clear for me. The Bill weakens the protection of the law against sexual activity in public lavatories. The gross indecency offence has gone and instead we are invited to rely on the common law offence, which is hardly used. We heard a moment ago from the noble Lord, Lord Monson, about the conviction rate, but the number of cases brought is extremely low. It is only a couple of hundred in total, only about 30 of which resulted in conviction.

We are invited to rely on this offence, which has hardly been used for dealing with sex in public lavatories in recent years. It covers a wide range of things and the statistics relate to all of the matters covered, not just sex in public lavatories because in recent years we have been using the offence of gross indecency. I do not want to reinstate that offence because I believe that it is offensive to homosexuals. That is why I drafted my amendment in entirely gender-neutral terms.

I say to those who are concerned about how the existing common law offence has been used that that offence evolved in an era not of sexual neutrality, a concept introduced by the noble Lord, Lord Alli, in Committee, but during the period that he referred to in his interesting survey of the background to homosexual behaviour when it was strongly disapproved of by society. That is the background as to how that offence has evolved.

In effect the Minister has said the offence would cover all activity, whether or not it was heard. The noble Lord, Lord Thomas of Gresford, has said the same. But there is no case in point. In any event, my contention is that it is better to have a certain and clear expression of the law rather than having to rely on interpretation of an archaic offence. Flexible can be synonymous with unclear. The noble and learned Lord has said that it may be difficult to prove the offence I have drafted in my amendment. But it should be capable of being proved and it is worth giving it a try.

I believe that those who support the Bill in its current form will in effect be sending a strong signal to those who seek sexual activity in a public lavatory,

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especially behind the cubicle door. I hope that no noble Lord would want to send a signal that that sort of activity is acceptable. This issue is so important that I seek the opinion of the House.

6.49 p.m.

On Question, Whether the said amendment (No. 164) shall be agreed to?

Their Lordships divided: Contents, 133; Not-Contents, 95.

Division No. 1

CONTENTS

Aberdare, L.
Ahmed, L.
Ampthill, L.
Anelay of St Johns, B.
Arran, E.
Astor, V.
Astor of Hever, L.
Baker of Dorking, L.
Bell, L.
Blackwell, L.
Blaker, L.
Blatch, B.
Boothroyd, B.
Brigstocke, B.
Brooke of Sutton Mandeville, L.
Brookeborough, V.
Brookman, L.
Brougham and Vaux, L.
Burnham, L.
Buscombe, B.
Byford, B.
Caithness, E.
Campbell of Alloway, L.
Carlisle of Bucklow, L.
Carnegy of Lour, B.
Cavendish of Furness, L.
Chadlington, L.
Chorley, L.
Clarke of Hampstead, L.
Colwyn, L.
Cooke of Thorndon, L.
Cope of Berkeley, L. [Teller]
Crickhowell, L.
Cumberlege, B.
Davies of Coity, L.
Deedes, L.
Dixon, L.
Dixon-Smith, L.
Donoughue, L.
Elliott of Morpeth, L.
Elton, L.
Evans of Parkside, L.
Feldman, L.
Fitt, L.
Fookes, B.
Fraser of Carmyllie, L.
Freeman, L.
Gardner of Parkes, B.
Geddes, L.
Gilmour of Craigmillar, L.
Glentoran, L.
Goschen, V.
Gray of Contin, L.
Greenway, L.
Griffiths of Fforestfach, L.
Hanham, B.
Hannay of Chiswick, L.
Hanson, L.
Hayhoe, L.
Higgins, L.
Hodgson of Astley Abbotts, L.
Home, E.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
Hunt of Wirral, L.
Hylton, L.
James of Holland Park, B.
Jenkin of Roding, L.
Kimball, L.
Laing of Dunphail, L.
Laird, L.
Lofthouse of Pontefract, L.
Lucas, L.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
Mackenzie of Framwellgate, L.
Mancroft, L.
Marlesford, L.
Masham of Ilton, B.
Mason of Barnsley, L.
Mayhew of Twysden, L.
Miller of Hendon, B.
Molyneaux of Killead, L.
Monro of Langholm, L.
Monson, L.
Moynihan, L.
Murton of Lindisfarne, L.
Neill of Bladen, L.
Newton of Braintree, L.
Noakes, B.
Northbrook, L.
Northesk, E.
Onslow, E.
Oppenheim-Barnes, B.
Park of Monmouth, B.
Patel of Blackburn, L.
Peel, E.
Perry of Walton, L.
Pilkington of Oxenford, L.
Platt of Writtle, B.
Plummer of St. Marylebone, L.
Powell of Bayswater, L.
Pym, L.
Rawlings, B.
Reay, L.
Rees, L.
Renton, L.
Roberts of Conwy, L.
Saatchi, L.
Saltoun of Abernethy, Ly.
Seccombe, B. [Teller]
Selborne, E.
Sharples, B.
Shaw of Northstead, L.
Sheldon, L.
Skelmersdale, L.
Stallard, L.
Stoddart of Swindon, L.
Strathclyde, L.
Swinfen, L.
Tebbit, L.
Trefgarne, L.
Vivian, L.
Waddington, L.
Wakeham, L.
Walker of Doncaster, L.
Walker of Worcester, L.
Weatherill, L.
Williamson of Horton, L.
Windlesham, L.

NOT-CONTENTS

Acton, L.
Alli, L.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Bassam of Brighton, L.
Berkeley, L.
Billingham, B.
Blackstone, B.
Bragg, L.
Brooke of Alverthorpe, L.
Burlison, L.
Campbell-Savours, L.
Carter, L.
Chandos, V.
Christopher, L.
Clement-Jones, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Crawley, B.
Darcy de Knayth, B.
David, B.
Davies of Oldham, L.
Desai, L.
Dormand of Easington, L.
Dubs, L.
Elder, L.
Elis-Thomas, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Gale, B.
Golding, B.
Gordon of Strathblane, L.
Goudie, B.
Graham of Edmonton, L.
Grocott, L. [Teller]
Hamwee, B.
Hardy of Wath, L.
Harris of Haringey, L.
Harrison, L.
Haskel, L.
Hattersley, L.
Hayman, B.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Howells of St. Davids, B.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L. (Lord Chancellor)
Jay of Paddington, B.
Jones, L.
Jordan, L.
Layard, L.
Lea of Crondall, L.
Lipsey, L.
Listowel, E.
Lockwood, B.
Macdonald of Tradeston, L.
McIntosh of Haringey, L. [Teller]
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Morgan, L.
Newby, L.
Parekh, L.
Pitkeathley, B.
Plant of Highfield, L.
Radice, L.
Razzall, L.
Rea, L.
Rendell of Babergh, B.
Richard, L.
Rogers of Riverside, L.
Sawyer, L.
Scotland of Asthal, B.
Stern, B.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Temple-Morris, L.
Tomlinson, L.
Turner of Camden, B.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Watson of Richmond, L.
Wedderburn of Charlton, L.
Whitaker, B.
Whitty, L.
Williams of Crosby, B.
Williams of Elvel, L.
Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.

9 Jun 2003 : Column 80

7 p.m.

Clause 72 [Intercourse with an animal]:

Lord Lucas moved Amendment No. 166:


    Page 34, line 19, leave out "a living" and insert "an"

9 Jun 2003 : Column 81

The noble Lord said: My Lords, in moving Amendment No. 166, I shall also speak to Amendment No. 166A.

When the noble and learned Lord, Lord Falconer, and I discussed this matter in Committee, he said that it was a matter of deciding where the line should be drawn. Yes, that probably is the question, and I think the line should be drawn in a rather different place from where the Government have chosen to draw it. I am sorry to have to trespass on the noble and learned Lord's sensitivities—he was extremely successful in avoiding indelicate language in the course of the debate on the last amendment. I suspect this amendment may prove more difficult.

I think we are all agreed that none of us wishes to decriminalise the existing offences with animals. That is, as I understand it, the way in which the noble and learned Lord has drafted the clause in this part of the Bill. It seems to me, however, that we ought, when having what I suspect will be a very rare opportunity to consider this particular offence, to think about where we should properly draw its boundaries. Amendment No. 166A addresses what is a fairly common and well-attested variety of sexual activity with animals, and that is felching. I do not know how far the classical education of the noble Lord goes—certainly when researching this particular offence I began to understand why classics is a popular subject at university—but he will perhaps be aware that Messalina won a competition with a prostitute for suffocating stoats. She won with 25 stoats in 24 hours. I do not believe that anyone takes it to quite that extent now, but certainly the use of gerbils appears to be popular, and snakes and other animals. As I understand it, it is both a male and female practice.

It seems to me that if we are going to outlaw what one might call conventional penetration of a human by an animal, that is, of using a large animal's penis to do the penetration, one should similarly outlaw the use of a whole smaller animal to undertake the penetration. I do not see the difference in the quality of the offence. If one is outrageous to public decency in the public imagination, then it seems that the other one should be too.

Amendment No. 166 addresses the question of sex with a dead animal. Again, I do not see the quantitative difference between one and the other, particularly when you have well-known sexual practices on the borderline such as avisodomy, which is the practice of breaking a hen's neck at the moment before penetration so that you benefit from the spasms that the animal undergoes afterwards. That, as the Government have drafted the Bill, would seem to be legal, since the animal is certainly clinically dead once its neck has been broken, even if it continues to move.

If we are to have this as an offence, it might at least have logical boundaries. That is, if one is interfering with an animal in a way which would be considered full-on sex, as it were, then that is not to be allowed. As I understand it, neither the noble Lord nor I are proposing that masturbating an animal should be an offence, or using an animal in the process of

9 Jun 2003 : Column 82

masturbation. It is the only example of bestiality that I have ever personally observed, and I cannot say that it was a pleasant sight.

Leaving that aside, we ought to have boundaries which are drawn in a reasonably logical place and which reflect the current practice of bestiality, rather than something which perhaps has been drawn from a civil service cushioned from coming across these matters on a day-to-day basis. I beg to move.


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