On 16 September 1967 - within days of the gay law reform Act based on the Wolfenden Committee's recommendation receiving the royal assent - Geoffrey Moorhouse had written an article in the Guardian headed "Homosexuals seek respectable centres to meet."
In this piece that Albany Trust was quoted as believing that "if the Act implied a social revolution this was only because it was the very first blow for legality; most of the battles are still to be fought." Moorhouse continued: "The legislation they (Albany Trust) want to see now would make the man-man situation entirely comparable to the man-girl one... It would also allow meeting places to be established which are not florid but where homosexuals could behave naturally."
At this remove, many people will find it difficult to understand why people whose private behaviour had just been legalised should not be free to establish clubs where they could meet socially without further legislation, particularly since it is widely believed that, under English law, what is not specifically forbidden is permitted.
Would that it were so simple. We were living in days long before people had the protection of the Human Rights Act, which didn't come into force until the turn of the century and at a time, moreover, when judges were able to punish under "common law," which they made up as they went along, anybody who had done something which the authorities thought he ought not to have done.
The case which weighed with all those in the gay reform movement who hesitated about the establishment of gay clubs was that of a man called Shaw who was prosecuted towards the end of 1960 and subsequently convicted for "conspiring to corrupt public morals," a charge which hardly anybody, in or out of the legal profession, had heard of.
He had published a booklet called The Ladies' Directory in which prostitutes were able to advertise their services.
Now prostitutes who exchange sexual services for money commit no offence if they act singly and in private. Such behaviour however was - and is - considered to be immoral. Exactly the same view was - and is - taken of the private sexual behaviour of gay men and the apprehension at the time was that this novel common law offence could be used to punish those who established or operated gay clubs.
The Shaw case was appealed all the way to the House of Lords without success and, in the Lords' judgement, Lord Simonds said:-
In the sphere of criminal law there remains in the Courts of law a Residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the state, and it is our duty to guard against attacks which might be all the more insidious because they are novel and unprepared for……It matters little what label is given to the offending act - an affront to public decency, a corruption of public morals, the creation of a public mischief, or the undermining of moral conduct.
In a clear warning that this newly created offence was not intended to be a one-off, Lord Simonds continued:-
Let it be supposed that at some future, perhaps early, date homosexual practices between adult consenting males are no longer a crime. Would it not be an offence if, even without obscenity, such practices were publicly advocated and encouraged by pamphlet and advertisement?
Lord Simonds' prediction came true at just about the time when Esquire Clubs Limited was battering its head against the final stone wall in an enormous public showdown in Lancashire which we came to think of as "The War of the Burnley Buggers' Club" (Of which more later).
At about this time the "conspiracy to corrupt public morals" law was wheeled out again to deal with the publishers of IT magazine (formerly the International Times). They had permitted some personal adverts of a kind which would hardly raise an eyebrow today, the most notorious being, apparently: "Young dolly boy seeks sugar daddy. Photo appreciated" and "Young gay male desperately needs to earn £40 as soon as possible. Will do anything legal. Genuine replies only please."
Bernard Levin used his regular column in The Times to condemn the IT prosecution, but the Law Officers' Department mounted a counter-attack through a statement to the Times in which they pointed out that the then Solicitor General, Sir Peter Rawlinson, had, on 6 July 1964, expressly advised Parliament that, when and if the law was changed so as to legalise homosexual conduct, this would not operate so as to exempt from prosecution any case involving incitement to commit homosexual acts.
Another attack on the IT prosecution appeared in the Times in the form of a letter from John Mortimer, in which he argued:-
Surely it's at least arguable that it's in everyone's interest that unhappy members of sexual minorities should be in a position to make contact with each other rather than inflict their presumably unwelcome attentions on the community at large.
Mortimer was disturbed because the fact that this prosecution was under the common law meant that the defence of "public good" could not be pleaded. He continued:-
I can conceive of considerable expert medical and psychological evidence which might be called in defence of such advertisements if they were prosecuted under a law passed by our elected representatives and not (one) suddenly discovered by certain members of the House of Lords to be part of our common law: the common law having apparently managed quite well without it during long periods of our history.
The Ladies' Directory and the IT prosecutions also attracted the attention of Louis H. Pollack, Professor of Law at Yale University who, writing to the Times from the London School of Economics, said:-
In sustaining the notion that judges are authorised ex post facto to give new content to the phrase "conspiracy to corrupt public morals" - and thereby to continue the judicial creation of new crimes - the House of Lords has infringed upon two principles of the first magnitude in any democratic legal order.
The first, articulated by Lord Reid in his Shaw dissent, is this: "It has always been thought to be of primary importance that our law, and particularly our criminal law, should be certain; that a man should be able to know what conduct is and what is not criminal, particularly when heavy penalties are involved.
The second, to adopt the apt words of Lord Devlin, is this: It is quite wrong for the judiciary to think they are responsible for the moral health of the community in some way." - a principle subject to some qualification, I submit, when moral values are invoked, in court, to protect the citizen against excessive executive or legislative oppression, but surely not when courts are asked, in morality's name, to create a new offence hand-tailored to catch the citizen whose conduct has not transgressed the rules legislated by the people's representatives in Parliament.
It all fell on deaf ears so far as the government was concerned, and left all of us working in this delicate field in a condition of prolonged uncertainty. Although it was neither the threat nor the fear of prosecution which ended the Esquire Clubs experiment, it was no doubt that prospect which deterred those who might otherwise have supported us, all the way from the breweries which were unwilling to give the kind of financial support which was always on offer to other clubs right through to property owners who were unwilling to enter into leases with an organisation involved in what they rightly or wrongly, considered to be a vulnerable enterprise.
