A potty proposal

ANTONY GREY writes:

Our first woman Home Secretary, Jacqui Smith, has come up with a mind-bogglingly bizarre plan to criminalise paying for sex with a woman who is 'controlled for another person's gain'. This new offence will, according to the Guardian's political editor, "carry a hefty fine and criminal record, which could prevent those caught from getting jobs in sensitive occupations". The legislation will cover not only trafficked women ['sex slaves'] - who are indeed in need of effective state protection but all too often don't get it despite the stringent laws against such trafficking - but also those who have pimps or who are drug addicts prostituting themselves in order to pay off their dealers.

Unsurprisingly, such a broad definition is expected to include "the great majority of Britain's 80,000 sex workers" [source of figure unstated]. Ignorance of the woman's circumstances will not be a defence. The egregious Ms Smith has stated: "It won't be enough to say 'I didn't know'. What I hope people will say is, 'I am not going to take the risk if there is any concern that the woman hasn't made a free choice.' It would be quite difficult for a man paying for sex in the majority of cases not to fall under this particular offence." [my italics] But she is graciously refraining from imposing a universal ban on paid sex because some women argued that they did it out of choice "and it's not my job to criminalise that".

There you have it! Ms Smith and her advisers don't have the bottle to make prostitution illegal and have done with it - so they concoct a new failsafe catch-all crime which, like so many new offences introduced by this civil liberty-trashing New Labour government, removes the burden of proving guilt from where it properly belongs - the prosecution - and dumps the burden of proving his innocence upon the accused. So much for traditional British justice.

I have spent a large part of my life publicly arguing for freedom of choice in sexual behaviour between consenting partners, because it seems to me that nothing less accords with the dignity of the individual, however immoral or depraved some folk think their freely made choices are. I heartily agree with one of Margaret Thatcher's more sensible pronouncements, when she said: "Free choice is ultimately what life is about, what ethics is about. The whole of the case for freedom is a moral case because it involves choice. Do away with choice and you do away with human dignity."

A guiding light of my political philosophy has been John Stuart Mill's seminal essay On Liberty [1859] - now sadly neglected - in which he lays down the principle that 'the only freedom which deserves the name is that of pursuing our own good in our own way'; that 'each is the proper guardian of his own health, whether bodily or mental or spiritual'; that 'mankind are greater gainers by suffering each other to live as seems good to themselves than by compelling each to live as seems good to the rest'; and that 'over himself, over his own body and mind, the individual is sovereign'.

This was reinforced and brought up to date by the Wolfenden Committee's 1957 Report on Homosexuality and Prostitution which stressed the "decisive" importance of allowing individual freedom of choice and action in matters of private morality: "Unless a deliberate attempt is to be made by society, acting through the agency of the law, to equate the sphere of crime with that of sin, there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law's business." Now, it would appear, Ms Jacqui Smith and her New Labour cohorts are bent on making such an attempt.

In 1972 the then Chairman of the Sexual Law Reform Society, Bishop John A.T. Robinson, delivered a lecture on The Place of Law in the Field of Sex in which he affirmed that the true function of law in a democratic society was "not to prohibit but to protect, not to enforce morals but to safeguard persons, their privacies and freedoms". I remain convinced this is right: privacy, protection and consent are the key issues in this area of personal behaviour.

It is always difficult to defend as harmless private consenting activity which is deemed immoral, offensive, or anti-social by others. It is almost impossible to get a hearing for the - surely plausible - view that not all consenting relationships between those above and below the legal age of consent are exploitive or damaging. It is equally hard to get a hearing for the far from absurd contention that many - if not most - prostitutes, male as well as female, take up their profession freely and willingly and enjoy their work. Yet this is the finding of more than one research study, and I myself have known such prostitutes who do not operate at the seedy or criminal end of the business. Yet telling this to the likes of Jacqui Smith and ideologically anti-prostitution feminists is like shouting at a brick wall. Whether it is true or not, they simply do not want to know.

Civil liberties and personal freedom have taken worse knocks under this New Labour government than at any time I can remember. How long will the too patient public continue putting up with this constant erosion of freedoms we took for granted throughout the twentieth century? It will be interesting to see.

To conclude, let me recall the words of John Addington Symonds, celebrated Victorian literary critic and bisexual: "Good Lord! In what different orbits human souls can move. He talks of sex out of legal codes and blue books. I talk of it from human documents, myself, the people I have known, the adulterers and prostitutes of both sexes I have dealt with over bottles of wine and confidences."

Free Expression and the Rule of Law

The Director of Public Prosecutions, Sir Ken Macdonald QC, delivered a lecture with the above title at Birmingham University on 4th March. The full text is here. It is an extremely interesting exposition of the Crown Prosecution Service's - surprisingly liberal - approach to putative offences involving freedom of expression, and stresses the crucial importance of the 1998 Human Rights Act in bolstering the legal protection of free speech.

As the DPP points out, while there is no universally agreed consensus over what is acceptable and unacceptable, widely held views change over time, and the law needs to respect this and to evolve accordingly.

"A reckless inciter of violence imprisoned in one generation is a martyr to free speech in the next.

"For our grandparents a gay marriage would have been an abomination. To our children it is the excuse for a great party."

Anyone interested in free speech issues should read this illuminating reflection of the official mind.

A farrago of prejudice

The Chief Rabbi, Dr Jonathan Sacks, has written a book – The Home We Build Together: Recreating Society – which, to judge from the extracts printed in today’s Times, is calculated to raise the hackles of a good many people.

Dr Sacks’s targets are many, and he adopts the scattergun approach. Multiculturalism, he tells us, is a dead duck; it was a fine, even noble idea, but has led to segregation rather than the hoped-for integration. Whose fault this is, Dr Sacks doesn’t pause to inquire – there is scarcely a reference to Islam in the article.

Liberal democracy, says Dr Sacks, is in danger. “Britain is becoming a place where free speech is at risk, non-political institutions are becoming politicised, and a combination of political correctness and ethnic-religious separatism is eroding the graciousness of civil society…..The politics of freedom risks descending into the politics of fear.”

Again, Dr Sacks doesn’t point a finger at the obvious culprit – strident religious bigotry – but discerns a quite different and, for him, a much more convenient target – that tired old whipping-horse of reactionary right-wingers, “the permissive society”. All our social ills, he moans, stem from the wicked 1960s, when traditional Christian morality “conceived as the moral bond linking individuals in the shared project of society” was jettisoned overboard. The first crack came when suicide ceased to be a crime in 1961. This was “the beginning of the end of England as a Christian country, that is, one in which Christian ethics was reflected in law.” It was swiftly followed in 1967 by the legalisation of abortion and of homosexuality.

“Collectively these changes represented a decisive move away from the idea that society had, or was entitled to have, a moral code at its base….Society was no longer conceived of in terms of a moral consensus. The law would intervene only to prevent individuals from harming one another.” The notion that this latter principle is itself a moral code more suited to modern times than inhumane antique biblical injunctions doesn’t seem to have occurred to Dr Sacks.

All this is stale, tired old stuff which was put far more eloquently and persuasively by the late Lord Devlin in his 1959 Maccabean Lecture The Enforcement of Morals, where he equated immorality with treason and asserted that “society cannot ignore the morality of the individual any more than it can his loyalty; it flourishes on both and without either it dies.” This led to a vigorous academic and public debate, and in view of Lord Devlin’s vigorous views it is all the more surprising that he ultimately came round to the view that the Wolfenden proposals for the limited decriminalisation of male homosexual behaviour were in the public interest.

According to Dr Sacks, we are living in an age in which people no longer have roles and duties within a stable social structure, morality is becoming a mere façade, and the only way to defeat opponents is to ridicule them – a favourite tactic, incidentally, of religious zealots these days, who are quite unscrupulous in their misrepresentation of the actual views of non-believers of other faiths or none. If there is no agreed moral truth, Dr Sacks continues, “we cannot reason together….On this account, Western civilisation is not truth but the hegemony of the ruling elite.” Who prevails will depend not on reason but on power. Again, it doesn’t dawn on Dr Sacks that to enforce private morality through the criminal law is a tactic based on power - not reason.

I agree with Dr Sacks in deploring the intolerance of ‘political correctness’ which, “created to avoid stigmatising speech, becomes the supreme example of stigmatising speech”. And I agree also that it was wrong that a Catholic nominee for the EC justice commission felt obliged to resign after saying that his faith compelled him to believe that homosexuality was a sin, although he did not believe it should be a crime.

Identity politics is deeply and inexorably divisive, wails Dr Sacks. I find this a richly comic remark, emanating from the Chief Rabbi of a faith which tirelessly asserts its exclusivity and superiority to non-Jews. While many Jews [unlike Muslims] are ardent practitioners of integration, if not assimilation, by no means all are. I wonder whether Dr Sacks has taken a stroll round Stamford Hill lately? Dr Sacks rightly says that “a culture of victimhood sets group against group, each claiming that its pain, injury, oppression, humiliation, is greater than that of others” – but he fails to add that the Victim card is a favourite ploy of today’s increasingly intolerant religious minorities, each complaining that they are the innocent targets of imaginary legions of rabid atheists thirsting for their blood. All we non-believers are in fact asking for is that the religious should confine their observances and faith-based beliefs to their private lives, and not aspire to inflict them upon the rest of society as Dr Sacks is doing in this polemic.

And I find it especially odd that the Chief Rabbi should ‘come out’ as such an ardent defender of Christian values – which, when all is said and done, differ considerably from those of the Torah. It’s also comic that, like so many backward-looking social conservatives, Dr Sacks dislikes the internet and the “tendentiousness” of blogs intensely. He resorts to the futile old ploy of blaming the technology – not the message - when he questions whether the new culture of instant global communication will weaken the nation-state. I find this a pathetic argument. Myself, I strongly believe that humanity would be far more peaceful and less crime-ridden if the art of kindling fire had never been discovered and the wheel and never been invented. Then, we would all be far too busy keeping ourselves and each other warm with our body heat, and trudging slowly and painfully a few miles a day, to get up to all the immorality, crime, and other mayhem which so appals Godbotherers like Dr Sacks.

Conscience Rules OK?

In their letter to the Prime Minister, the Archbishops of Canterbury and York make the following remarkable assertion:

“The rights of conscience cannot be made subject to legislation, however well meaning.”

One wonders whether the worthy prelates have really thought this issue through. Presumably it means that:

Islamic suicide bombers whose consciences tell them that they are fulfilling the will of Allah cannot be the subjects of anti-terrorist legislation;

Christians who starve, torture and murder small children because their consciences tell them that the children are possessed by the Devil cannot be prosecuted;

It was right for those Christians who worked for the Nazis in concentration camps to do so because their consciences told them it was alright;

Anthony Blunt and other Cold War traitors should have been excused because their consciences told them to spy for the USSR;

The British in India were wrong to suppress the Hindu custom of Suttee - the burning alive of a widow on her husband's funeral pyre;

It was right for the Christian churches in past times to torture and burn to death “heretics” and “witches”, because their consciences told them to do it;

The Roman Catholic Church was right to condone slavery until the middle of the twentieth century because their Christian “consciences” sanctioned it.

These are just the first few examples of the novel doctrine that the rights of conscience override the law which spring to mind.

Doubtless others will occur to those who read this post.