Criminal Justice and Public Order Bill

HL Deb 20 June 1994 vol 556 cc10-67

3.2 p.m.

Earl Ferrers

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Earl Ferrers.)

On Question, Motion agreed to.

House in Committee accordingly.

[The CHAIRMAN OF COMMITTEES in the Chair.]

Clause 139 [Age at which homosexual acts are lawful]:

Lord McIntosh of Haringey moved Amendment No. 160A:

Page 113, line 13, leave out ("eighteen") and insert ("sixteen").

The noble Lord said: In moving Amendment No. 160A I wish to speak also to Amendments Nos. 161A and 163A and also, as I understand it, to the Question that Clause 139 stand part of the Bill. I want to make that clear from the outset.

Baroness Young

I am sorry to interrupt the noble Lord, Lord McIntosh, but should not the clause stand part debate be taken at the end of this grouping because, as I understand it, the amendments which follow it could not be called were the clause stand part debate to be; deleted? I wonder whether it is in the right grouping.

Lord McIntosh of Haringey

It is not my grouping. I understand that this grouping has been agreed. The Question as to whether Clause 139 should stand part of the Bill cannot be dealt with until all of the amendments relating to Clause 139 have been dealt with. However, I understand it is for the convenience of the Committee: that the issues of the age of consent, be it 16, 18 or 21, should be debated together. But we cannot change the: order in which votes are taken. The noble Baroness is entirely right on that.

The Earl of Lauderdale

Can we be absolutely clear that the debate on whether Clause 139 should stand pan: of the Bill will only be taken after Amendment No, 164ZA?

Lord McIntosh of Haringey

Yes, that is the position because the group starting with Amendment No. 161 comprises amendments to Clause 139 and therefore the clause stand part debate cannot be taken until the amendments of the noble Lord, Lord Mayhew, have been debated.

I shall try again to preface my remarks by saying that anything I say on this issue is a personal view. As far as my party is concerned, this is a matter of individual conscience and we are not required to vote in any particular way. I very much respect the opinion of those who say that the decision of the House of Commons —the view held by a considerable majority in that House—that the age of consent for homosexual acts between men should be reduced from 21 to 18 should prevail. I understand that argument as the House of Commons is the elected Chamber of Parliament and its Members have expressed their views. I can quite understand when people argue that it would be wrong for this Chamber to express a different attitude and therefore to raise the possibility of conflict between the two Chambers. That was, after all, a powerful argument in the debate which we had a couple of months ago on Sunday trading where a number of noble Lords felt—I understand their position—that it would be wrong for us to overturn the considered decision of the House of Commons.

But the challenge does not come from me. The challenge came in the first place from those who sought to oppose the Question that Clause 139 stand part of the Bill, and therefore that the age of consent for homosexual acts between men should be restored to 21 rather than to 18, as the House of Commons wished. Under those circumstances I feel—I hope the Committee will agree with me—that it is proper that the debate which takes place on this issue—and which must take place on this issue—should explore all the options which the House of Commons considered. That is why my three amendments and the Question on whether Clause 139 should stand part, and the amendment in the name of the noble and learned Lord, Lord Simon of Glaisdale, are being taken together as they are all concerned with this issue of the age of consent.

With that, I turn to the merits of the issue. I do not think anyone will deny that the existence of a different form of sexuality—in other words, homosexuality both between men and between women—has been a feature of the human race for as long as records have existed. Throughout the ages, as literature and art confirm, homosexual love and homosexual sexual acts have been a part of all of the societies which have preceded our society, and they are still prevalent in virtually all societies as well as in western society. Indeed, we owe to the existence of homosexual love a considerable body of the finest works of art and the finest literature which exist to sustain the human spirit.

At the same time, I do not think anyone could deny that there are different views as regards at what age it is proper for the law to recognise sexual acts, whether between men and women, between men and men, or between women and women. That is an opinion which will differ from one society to another and it does differ as between one society and another. In many parts of the world the law differs accordingly. What is much more unusual is the provision which has existed in our law, and would exist still in our law unless these amendments were carried, of a different age of consent for heterosexual sexual acts on the one hand, homosexual acts between women on the second hand, and homosexual acts between men on the third hand. I have reached a slightly strange anatomical conclusion, but nevertheless the point is still valid.

I suggest that if we are to sustain a difference as regards the legal age of consent for these different kinds of sexual acts that is not a matter of personal morality but rather a matter for the Churches and for those who seek to persuade themselves and other people of what is right for them and those who agree with them. If we are to insist on a different age, then we have to show that there is some social or medical reason why the law should intervene in this, on the face of it, strange way. I suggest to the Committee that all of the social and medical reasons, and indeed the legal reasons, support a common age of consent for all sexual acts rather than an unequal age of consent, as is provided by the law at the moment.

Perhaps I may deal first with the issue of enforcement. Most police forces in this country, including in particular the Metropolitan Police, have made it clear that the enforcement of the prohibition on homosexual sexual acts under the age of 21, or under the age of 18, is very low on their list of priorities. If we insist on an unequal and higher age of consent, we risk putting forward a law which in practice will not be enforced. Although I may not quote him, that was the very powerful argument of the right honourable Tristan Garel-Jones MP in another place when supporting the age of consent at 16.

Then there are the medical arguments as to whether 16 is the right age of consent. All medical authorities are unanimous on this issue. The General Council of the BMA says that there is no convincing medical reason against reducing the age of consent for male homosexuals to 16 and that to do so may yield positive health benefits. The Health Education Authority believes that fixing the age of consent at 16 is crucial for the health of the nation. Lindsay Neil, the HEA's AIDs and HIV sex education director, says that the current law restricts health promotion among young homosexuals. Teachers and youth workers are inhibited from passing on information: crucial to health promotion and the prevention of HIV infection among young gay men". Therefore, on health grounds there is little doubt that the opinion of those who are best informed on this matter is in favour of reduction of the age of consent to 16.

What are the arguments against this? It appears to be argued sometimes that young men between the ages of 16 and 18 will be seduced into homosexual behaviour. It is argued that at the age of 16 or so they become confused about their sexuality and that to make homosexual acts legitimate would turn them into homosexuals when they would not otherwise be so. Again, all of the evidence is directly to the contrary. The Royal College of Psychiatrists says that there are no developmental reasons for not reducing the age for homosexual consent to 16. The Royal College of Psychiatrists means by that that young people do not grow up with a confused idea of their sexuality and would not be seduced into homosexuality by the fact that it is made legal.

Research carried out by the SIGMA Foundation shows that 74 per cent. of young men know what their sexual direction is before they engage in any sexual activity. Therefore they cannot be seduced into that activity and are not confused. In addition, in a very high proportion of cases, at the time of the first sexual act the difference in age between the two partners is a year or less. Therefore, there is not a pattern of older men seducing younger men into homosexual behaviour.

I did not go to a boarding school, so I do not know what goes on in boarding schools. But it has been rumoured that some people who go to boarding schools engage in homosexual acts and grow out of homosexuality later. If that is the case they are a relatively small minority of the population. For the population as a whole, by the age of 16 nearly all young men are aware of their sexuality and will not be diverted from it by seduction by older men.

I mentioned AIDs and HIV. I also want to talk about the wider issue of health education and what the organisations which try to help young people can do and what they think about the matter. Barnardos says: The present law prevents us from giving practical support and information. We find ourselves in the ludicrous situation of handing out condoms to girls who are 16 and to heterosexual boys who are 16 but not to gay 16 year olds". Save the Children—which used to be the Save the Children Fund—says: The discriminatory age of consent encourages intolerance and prejudice which can seriously affect the lives of young homosexual people. There is considerable evidence pointing to high levels of attempted suicide, family rejection, bullying and intimidation of this group of young people … The protection of young people is best maintained by the consistent and fair application of the law rather than legislation which is both hard to justify and damaging in its application". It has been suggested by a number of people who support the view that I am putting forward that this is an issue of what they call gay and lesbian rights. I suggest that that is not the case. I think that what we have before us today is an issue of human rights. It affects all of us, whether we are heterosexual or homosexual in our inclinations. We should not allow the law to outlaw the behaviour of people who are not doing any harm to themselves or to anybody else, who have no desire to do harm to themselves or anybody else and whose sexuality is determined not by themselves but by outside forces whether by nature or nurture, who is to know? We do not need to go into that question.

Those are very clear issues. I suggest that if we wish to preserve the role of the law as being the protection of society rather than the enshrining of different kinds of private moralities which do not affect social behaviour, we should oppose any state of law which encourages a different age of consent. It is not merely a matter of sexuality. This is a question of the way in which we treat each other as human beings and respect the differences between each other as human beings. If we cannot get this right what can we get right? I beg to move.

3.15 p.m.

Lord Simon of Glaisdale

I cannot see across the Chamber, I hope that no one else has risen to speak at this stage.

The Committee has before it three ages. These are not ages of consent but minimum ages at which homosexual intercourse can lawfully take place. It is somewhat misleading to speak of that as an age of consent because it leads to the argument which has just been put forward so forcefully that what is the true age of consent— namely, that for heterosexual intercourse—should be the guide as to what should be the minimum age of legal homosexual intercourse.

The Committee has before it three ages: 16, 18 and in effect 21. There is no proposal that the age should be higher than 21, although a number of scriptural arguments suggest that that should be so. Nor is there before the Committee any suggestion that the age of homosexual legality should be lower than 16. The Committee is therefore approaching the matter in the way in which the Wolfenden Committee approached it —namely, weighing two considerations.

First, the law should not interfere more than is required with the private activities of adult citizens. Secondly, although it should not interfere more than necessarily, the law should nevertheless, intervene to protect those who are vulnerable and immature. I assume that on the whole noble Lords favour the approach of the Wolfenden Committee which, when facing the problem for the first time because there had not previously been a minimum age, recommended the age of 21. It considered the arguments put forward so persuasively by the noble Lord, Lord McIntosh, in favour of 16, and it unanimously rejected them. It considered the arguments in favour of 18, and the minority was in favour of that age. The majority also considered that there was much to be said for a minimum age of 18. However, in the end minority and majority aligned in favour of 21. The Committee therefore may think that it would be useful to proceed on the basis of the considerations of the Wolfenden Committee. It considered the matter for three years, took abundant evidence and came to that conclusion.

What has happened since? It seems to me that there have been two significant developments: first, the menace of HIV and AIDS; and, secondly, the increasing propaganda on behalf of homosexualism. The Committee will probably consider that both those matters reinforce the argument in favour of 21 years. Nevertheless, I would favour 18; and I hope to give the Committee reasons why noble Lords should accept that figure.

First, perhaps I may deal with the argument that the minimum age of consent should be the same: that there is in some sense an anomaly if the minimum legal heterosexual age of consent is not aligned with the minimum legal homosexual age. Although, as the noble Lord justly and movingly said, there is a duty on any civilised society to show toleration; nevertheless, society cannot view impartially homosexual activity and heterosexual activity for this reason. Without heterosexual activity, society does not subsist and continue. There is another social matter. Wherever homosexual ethos has been to some extent dominant or even acceptable, the status of women has been debased. That was noticeable in ancient Greece. It is also noticeable in many places in the Middle East today.

I add one other factor to the argument on equality. The issue will run into great trouble with regard to Northern Ireland, where the age of heterosexual consent is 17, as it is in the Irish Republic. Therefore a reduction to 16 will either lead to an anomaly between Northern Ireland and the remainder of the United Kingdom or to an anomaly in equality between the legal minimum age of homosexual activity and heterosexual consent.

Perhaps I may turn to arguments which, despite the developments since the Wolfenden Committee, might cause the Committee still to prefer the age of 18. First, Wolfenden was taking a revolutionary step in a controversial atmosphere. Secondly, it considered favourably 18 as the minimum age for homosexual activity. It did so while firmly rejecting 16 as the age. Thirdly—I say this somewhat diffidently because it depends on a lay evaluation of medical opinion—I do not consider that general psychiatric opinion is as categorical as the noble Lord, Lord McIntosh, suggests. On the contrary, there is a widespread psychiatric opinion that, say between the ages of 14 and 18, there is some confusion, some sexual ambivalence. One has only to think of hero worship of the captain of cricket, or of a "pash" for the games mistress, both undoubtedly sexual proclivities although neither physically consum-mated. If it is right that there is a period of ambivalence from which the bulk of the population evolves naturally into heterosexualism, that can be hindered by the intrusion of extraneous influences. Although that consideration militates against 16 as the age, it also inclines slightly in favour of 18.

The fourth and last reason is an argument to which the noble Lord referred. The House of Commons by a large majority has favoured 18. I have frequently urged your Lordships to accept confidently your independent constitutional role. However, this seems to be one of the very worst issues on which noble Lords might come into conflict with another place. The cliché of asking the other place to think again is particularly out of place in this context. As I say, the other place voted by a large majority for a minimum age of 18 and by a substantial minority for 16. It would seem to me to be a mistake not to accept what the other place decided, in particular when the decision is justifiable on other grounds, as I have suggested. So I shall vote for the Bill as it stands.

Perhaps I may say a few words on Amendment No. 164A. I was very hesitant about putting it forward. It is a probing amendment. However, I had thought originally that it would be preferable to wait to see how the debate develops. The amendment frames the counterpart of the defence to illegal sexual intercourse with a girl between the ages of 13 and 16. That defence provides that, if the man is under 21 and has not previously been charged with a like offence and he believes on reasonable grounds that the girl is over 16, he is excused from illegality.

I have tried to translate that into homosexual terms, but I am doubtful whether that was the right way to proceed. I think that the heterosexual provision has worked well and obviously what lies behind it is the sense that there is all the difference between, on the one hand, sexual activity by young people in the fire of youth and, on the other, the predatory stalking of a young girl by an older man for purposes of sexual satisfaction.

Having seen amendments which were put down later, particularly those by the noble Lord, Lord Ponsonby, which would narrow my age of 24 to 18 with two years' difference, I prefer his. However, I prefer even more to leave the matter to the discretion of the prosecuting authorities. On the whole, those authorities do not now prosecute when the ages are very close and where the younger one is over 18. That is another argument in favour of 18. As the Committee knows well, since the directorship of public prosecutions was instituted, the prosecuting authorities have from the beginning been given a discretion whether or not to prosecute. They have to consider the public interest as well as the evidential validity.

In March, in the debate on the subject in the other place, the Solicitor-General drew attention to that point and enunciated some of the considerations which the prosecuting authorities have in mind. Leading them were the ages of each of the parties and their relative ages. However, there were also other considerations as to whether there was an element of seduction, breach of trust or how far a crime was endemic in the area and how much it affronted public opinion. Thus I do not propose to move my amendment. I have left it on the Marshalled List, but I prefer to leave the issue which it raises to the discretion of the prosecuting authorities.

There is only one point I wish to add. I have seen it suggested that, since the prosecuting authorities now hesitate generally to prosecute where the parties are young but over 18, that necessarily means that if we accept the age of 18, it is effectually lowering the age to 16.I do not believe that that follows at all, nor that the prosecuting authorities will take that line. Although the noble Earl's department is not responsible for the prosecuting authorities, perhaps he would give some guidance on the matter. In sum, it seems to me that the argument points in favour of 18 as the minimum age for legal homosexual activities.

3.30 p.m.

The Archbishop of York

I wish to associate myself with the first part of the speech of the noble and learned Lord and with his conclusions. As Members of the Committee will realise, the whole subject has been agonising for the Churches and virtually all Churches have considered it at great length. They have found themselves in a measure divided because one is trying to do two things: first, to meet an obvious human need among people who have for too long been denigrated by society. One is trying to meet the growing aspirations of young people to discover more fully who they are and so on. Secondly, one is also aware of the social context in which that is done and the long religious tradition for which we carry responsibility and which has rightly been cautious within the area.

Some years ago, the House of Bishops produced a comprehensive report called "Issues in Human Sexuality". We did not discuss this issue, but last year, when considering the motion that was to come before another place, by a large majority the Bishops were of the opinion that 18 was about the right age, recognising that that is a compromise. There must be some movement from where we are now but they were unwilling to go the whole way towards 16.

I wish to centre my reasoning about the matter around three related questions. First, there is the general question of how far the law should intervene in matters which are claimed to be private. We need to recognise that every society sets some limits on sexual activity, if only in order to create a set of expectations. It seems to me that when one is talking about the law one is not simply talking about what the police will do or the punishments that might be administered; one is also talking about the kind of society which one is endeavouring to embody and the expectations which people should have of one another.

One of the deeply disturbing things which has happened in our society in recent years is that so many of the normal conventions about sexual relations and when those might begin have been eroded. We are moving much nearer to what one might call the law of the jungle in sexual matters. That puts enormous pressures on individuals. Where within society there is a firm set of expectations, individuals do not find themselves under the pressure that they do in today's society where everything is saying to them: "Unless you have sexual experience early, unless you completely express yourself in whatever way you wish, unless you go along with all the exciting things which are set out in much of the sexual literature which is even now penetrating into schools, then somehow you are not a fully formed, mature human being". It seems to me that any change in the law changes expectations on those levels.

Thus, it is not simply a private matter. Indeed, one person's sexual activity is of concern to others. We have seen that again in our recent social and political life where concern about the sexual behaviour of others is not merely a matter of prurience but often much more about the kind of society which we are creating for ourselves. The law cannot easily control those matters and one must recognise that fact, but it can define expectations and it can protect.

The second question I wish to ask is: are homosexuality and heterosexuality simply alternative and equivalent forms of sexuality or is there is a difference between them which should somehow be represented in the law? We have inherited a long-standing belief that there is a difference. Much of this is rooted in Christian tradition. I do not want to stand by all that has been said and done on this subject within the history of the Christian Churches. As I said earlier, some appalling things have been done to homosexuals in the name of God. I would not in any way wish to endorse the hatred and contempt in which many of them have been held.

Nevertheless, there is something fundamental about our human nature which is safeguarded within the Christian tradition. It is a tradition which talks about the purpose of sex, which is procreational as well as relational. It is a tradition about the way in which we are made. It is a long-standing tradition about how human beings should relate to one another and where the limits should be drawn.

I hope that by moving in the direction that the other place has taken us, we can, as a society, rectify some of the mistakes that have been made in the past. That is part of the case for change. But I do not think that as a society we can simply say that homosexuality and heterosexuality are in all respects equivalent. Plainly they are not. Therefore, in our legislation we need in some way to define a norm. It seems to me that to have the small age difference which is represented by the figure 18 says something about society's acceptance of heterosexuality as the norm.

My third question is: how valid are the arguments that 16 year-old boys need protection? Or how valid is the argument that is put by the other side that 16 year-old boys are at risk of being criminalised if the law is not changed to suit them? We have heard quite a bit already about the medical evidence. But the fact from which we start is that nobody knows what causes homosexuality. Therefore, any interpretations of how it develops must inevitably be speculative.

In the very comprehensive Wellcome Report: on sexuality in Britain the point was made that many of those questioned regretted that they had had sexual experience too early. I believe that young people need time to discover who they are and that in the case of those who may be fairly clear about their sexual identity by the age of 16 it is not necessary that they should have actual genital experience in order to prove it. I believe, above all, that young people need to know where the boundaries lie. That is why we have to have laws in this area.

I do not take too seriously the point that young people will not be willing to go for medical or contraceptive advice or consultation about AIDS for fear of being criminalised. It seems to me that the way in which the law is applied says much more about the desire of society to help those who have got themselves into trouble rather than its desire to criminalise them unnecessarily. The evidence is that with a minimum age of 21 (or whatever) people will engage in this kind of sexual activity well below that age. I think that it is highly likely that if the legal age were 16 then in fact sexual activity of this kind would begin around 14 or so. There is bound to be, just as there is with speed limits on the road, a grey area in which those who might prosecute recognise the ambiguities and recognise particular human need. I hope that any law would be applied in that spirit. Lowering the legal age to below 16 would in practice, I believe, lower the expectations of sexual activity to an age much earlier than that.

It is manifestly true, if one compares boys and girls, that girls mature sexually earlier than boys. The psychiatrists may not know it, but every parent knows it. Again, homosexuality between men and homosexuality between women is, for very obvious reasons, different, simply because men and women are physically different. I do not profess to know very much about these matters from personal experience, but it would seem to me that homosexual relations of a certain kind between young boys must entail a good deal more physical commitment than homosexual relationships between young girls. I hope that this Committee will obey the good advice that has been given to it by the noble and learned Lord, Lord Simon, and that it will stick to the line that the other place took in voting for the age of 18.

3.45 p.m.

The Duke of Norfolk

I am a practising Roman Catholic, and I think that it is common knowledge that the Christian religion believes homosexual acts to be morally wrong. That is clearly taught in the Bible. They are considered to be unnatural, which is confirmed by the construction of the parts of the body that are involved. It is well known that some boys, when they reach adolescence, often pass through a transient homosexual phase, but that in most cases heterosexual urges have taken over by about the age of 21.

The Kinsey Reports of 1948 and 1953 concluded that 10 per cent. of the male population was homosexual. That is now thought to be widely inaccurate. In the USA, Professor Tom Smith concludes that 0.7 per cent. are homosexual. A recent estimate in the UK is that only 0.9 per cent. are homosexual.

There is a most dangerous likelihood of AIDS being caught. The Washington Family Research Institute has revealed that a homosexual lifestyle reduces life expectancy from 75 years to 42 years.

I advocate that Clause 139 should not stand part of the Bill, which would mean keeping the age of consent at 21, and not reducing it to 18, so that there would be a longer opportunity for young men to work out their psycho-sexual orientation as they grow up.

Lord Kilmarnock

I want to start from the proposition that an area of the criminal law should be no wider than it need be or usefully can be, as the noble Lord, Lord McIntosh, indicated. That applies especially to areas where it is not enforced and is unenforceable, other than at an unacceptable opportunity cost to other police activities. We have too many coercive and violent acts within society which keep the law and its agents fully occupied without pursuing consensual sexual behaviour. There are, of course, certain safeguards that are required here, to which I shall come shortly, but the point that I want to stress is that we should not criminalise people or inflict on them the fear of criminality unless there is a very strong case for doing so.

I accept that, on the other side of the coin, it is the job of the law to forbid and, if possible, to prevent people doing things to others which they do not want done to them and which, if strong enough, they would resist. It is the Government's job, in so far as it is within their power, to protect citizens against coercion or assault, whether sexual or otherwise. No government can legislate for morals but governments can and should pass legislation to protect citizens against rape, abuse and so forth.

There are other considerations to which different people will give different weight. Some will give emphasis to equality and the need to remove discrimination between the sexes as regards the age of consent to homosexual acts. I understand that there is a case before the European Court of Human Rights alleging contravention by Britain of certain articles by some young men. Incidentally, that court is not an institution of the sinister empire of the European Union, as some see it, but an institution of the Council of Europe, of which we were a founder member and whose Convention on Human Rights many people want to incorporate into our domestic law. It is not unlikely that we shall be obliged by that court in due course to move to equality between the sexes. But that is not my main point, which remains the futility of criminalising consensual acts and then turning a blind eye to them.

The current state of affairs is rather extraordinary. According to an Answer in another place on 17th January, there were in 1990,1991 and 1992 respectively 10, 19 and 14 prosecutions in England and Wales for consensual acts of buggery or attempted buggery with consent by males of 21 or over with males under 21, leading respectively to nine, 10 and 12 convictions. On one interpretation that is not a very impressive record of snooping; on another it is a tribute to the authorities concerned for turning their backs on a fruitless pursuit. In Scotland there is a tacit policy of disregard of such offences other than those in which exploitation, corruption or breach of trust is suspected. Details of the Scottish position are given in House of Commons Library Research Paper 94/12 on page 5.

So there is a widespread reluctance by those responsible to enforce the law. According to research commissioned by the Department of Health under the heading Project SIGMA, 88 per cent. of first consensual homosexual acts take place before the age of 21 and 61 per cent. take place before the age of 16. On whatever estimate of the homosexual population that one chooses to take, the law is obviously being disregarded daily on a very large scale with only minimal intervention by the authorities.

In another place an extraordinary argument to my mind was advanced, to the effect that the law is simply there as a framework, a set of precepts, guidelines or signals which may or not be invoked. Is that what the law means or what it ought to mean? Is it just an assemblage of indicators, flags, hints or nudges which one can take or leave alone? How would it work in relation to motoring or other offences, if the law were simply discretionary? To advocate that the law should be there as a kind of vague, admonitory instrument seems to me to be quite wrong and simply sows confusion, cynicism and ultimately a total lack of respect for it.

I turn to matters of public health. It is curious that the two most draconian Motions for debate were put down by noble Lords who profess themselves (as I am sure they are) concerned to prevent the spread of the HIV/AIDS epidemic. The noble Duke and his friends want to reverse the decision taken in the other place and to restore the age of consent from 18 to 21. The noble Lord, Lord Mayhew, and the noble Earl, Lord Clanwilliam—if I understood them rightly, as they have substantially redrafted their amendments—appear to want consensual buggery to remain a criminal offence until the age of 21. I shall now try to deal with each of those propositions.

The Earl of Clanwilliam

Could the noble Lord possibly speak into the microphone? I heard my name mentioned but I did not hear what else the noble Lord said.

Lord Hailsham of Saint Marylebone

I did not want to interrupt the noble Lord. But I am much closer to him than is the noble Earl and I have not heard a word that he has said so far.

Noble Lords

Speak more slowly.

Lord Kilmarnock

I believe it is something to do with the microphones. I was endeavouring not to delay the Committee unduly. I shall pay attention to the views of the Chamber. In reply to the noble Earl, Lord Clanwilliam, I simply said that, if I rightly understood his amendment and the amendment of the noble Lord, Lord Mayhew, they appeared to want consensual buggery to remain a criminal offence until the age of 21, even if other offences were decriminalised until the age of 18. I shall now deal with each of those propositions.

The assumption that sticking to 21 will help to reduce cases of HIV among young homosexuals not only fails to take account of the widespread non-enforcement to which I referred but also is at variance with the opinion of virtually every voluntary organisation working with young people in this field—organisations such as Barnardo's, the citizens advice bureaux, the National Children's Bureau and so on (I have a list as long as my arm); likewise, professional bodies, including not only the Royal College of Psychiatrists, which has been mentioned, but also the proverbially conservative (with a small "c") BMA. They all argue that the current law inhibits effective health promotion and safer sex education among those who most need it. The young people fear to seek professional advice because that might be tantamount to admitting a crime; and professionals and teachers are reluctant to give advice for fear of being in breach of the law themselves. Furthermore, those views are in tune with government policy. According to the Department of Health, that is founded on the proposition that prevention remains the cornerstone of the strategy to curb the spread of HIV by education and publicity campaigns.

Incidentally, I have checked with Dr. Lawrence, the senior genito-urinary physician at St. Stephen's, who has allowed me to quote his opinion that: the current age of consent poses a considerable deterrent to young men coming forward to be tested". That is confirmed by Dr. Nichol Thin, who is the chairman of the Association of Genito-Urinary Medicine. It is a very serious criticism of the present law that it may lead to unwitting transmission of a terrible disease.

I understand that the amendments of the noble Lord, Lord Mayhew, and the noble Earl, Lord Clanwilliam, will be debated later. I shall not therefore pursue them any further at present. But returning to the age of 21 is not sensible, practical or even particularly moral in relation to a disease which has especially horrible consequences. We should rather be thinking of how to prevent non-consensual homosexual acts and for that there are other options. For example, the amendment which is to be moved by the noble Lord, Lord Ponsonby of Shulbrede, and which has already been mentioned by the noble and learned Lord, Lord Simon of Glaisdale, to create an offence of male rape and put it on an equal footing with the rape of a female by a male, seems to me to be very well worth consideration. I shall listen to the noble Lord with great care when he moves the amendment.

There are other possibilities, such as the practice in several European countries, some of which have the basic age of consent as low as 12, of running a dual-track policy, whereby a higher age applies (typically 18) when the older person is in a position of authority, influence or trust vis-à-vis the younger. That is an obvious deterrent to the abuse of power.

All the bodies that I have mentioned and some others as well want the age of 16, as I do. That is not to say that they and I do not consider 18 to be an improvement on the present law. It was recommended as long ago as 1981 by the Home Office Advisory Committee and, as we know, it was the preferred option, by a very large majority, of the other place.

We do not of course on a matter of conscience have to follow another place. But it is important to note that, taking the pro-18s and the pro-16s together, there is a very large body of opinion against maintaining the law as it stands. If the noble Lord, Lord McIntosh, presses his amendments, as I hope he will, I shall support him. If we are unsuccessful, I strongly urge the Committee to support the Motion that Clause 139 stand part of the Bill and to defeat the misplaced zeal of those who want to overturn it.

Baroness Turner of Camden

I rise to support the amendment of my noble friend that the age of consent should be 16. I should declare that I am a member of the parliamentary Stonewall group, which is a group established to campaign for homosexual equality. Moreover, it is a group which has done a great deal to oppose the kind of discrimination to which I believe we would all object. I am also a member of the council of Save the Children, which has already declare publicly its support for the age of consent as 16.

I do not want to take up much time because I believe that my noble friend has already set out the arguments for his amendment with a great deal of force and clarity. However, I support the amendment, first, because I believe in the principle of equality. I can see absolutely no case at all for treating homosexuals differently from heterosexuals. It is quite well established that young people are well aware of the way that their sexual preferences will lie some time before the age of 16. That is true for both young men and young women. It was certainly true in my own case and I am sure also for many noble Lords should they care to think back that far.

It is sometimes argued that a higher age is required for male homosexuals because of the risk that otherwise they might be corrupted by older men. I have always found it striking that no one seems to be that bothered about the corruption of young women by older men, which one would have thought to be a much commoner phenomenon.

Secondly, I am opposed to a law which treats young gay men as criminals. Between 1988 and 1991 there were over 2,000 arrests for offences involving consensual sex with men under 21 years of age. The criminalisation of such acts has quite disastrous consequences. As the noble Lord, Lord Kilmarnock, said, there is currently the problem of HIV infection and AIDS. It is vital therefore that young people should receive proper counselling. They must be given information that will enable them to protect their health. As it now stands the criminal law prevents such counselling being made available to young homosexual men.

It is for that reason, among others, that Save the Children supports equalisation at age 16, otherwise advice and help could be denied to young people at a time when they are most in need of it. I strongly believe that only prejudice is responsible for a differential age. In relation to the reference to the Wolfenden Report made by the noble and learned Lord, Lord Simon of Glaisdale, I would remind the Committee that the Wolfenden Report was published as long ago as 1957 and there is no logical reason to continue a differential on the lines now suggested. I sincerely hope that the Committee will support my noble friend Lord McIntosh when he calls for a vote.

4 p.m.

Lord Skidelsky

My reason for putting my name to the amendment tabled by the noble Lord, Lord McIntosh of Haringey, is simple: I want an age of consent law which is enforceable and enforced. The present age of consent law for heterosexual acts is an example of an enforceable law. The age of consent law as it relates to male homosexual acts is neither enforceable nor enforced. The most reverend Primate referred to the role of the law in setting expectations. I agree with that. But it seems to me that his argument would have been more secure had he proposed raising the age of consent for heterosexual acts to 18. The present expectations of the law are that sexual acts will be allowed at 16. Why should not homosexuals have the same expectations as the majority of the population?

I take the central purpose of the criminal law to be to deter conduct which is defined as criminal. Deterrence depends on three things: the chance of being caught; the chance of being prosecuted if caught; and the chance of being punished if prosecuted. In all those respects the present age of consent law for male homosexual acts is virtually a dead letter and the most general reason is that the existing law does not command sufficient assent to be enforced in specific cases. That is the important point.

What are the facts? Members of the Committee referred to some of the statistics. One can set them out in different ways but they all come to the same thing. At present the Crown Prosecution Service operates what is called a flexible prosecution policy in respect of male homosexual offences. The data for 1992—the last year available—show no charge brought or even caution given for consensual sexual relations between young men aged 17 to 20. In the case of consensual sexual relations between males over 21 and young males aged 17 to 20 in 1992 there were 136 cautions, 216 prosecutions, with 165 found guilty, and 12 custodial sentences. To a certain extent that may show that the law is being enforced. In fact, almost all the arrests occur in public places where the committing of sexual acts is an offence whatever the age of those concerned. Such arrests have nothing at all to do with enforcing the age of consent law; they are directed against public indecency.

Apart from acceptability of the law there is a good reason for the non-enforceability of the present law. It is almost impossible to get caught unless the offence occurs in a public place. On the other hand, that is not likely if the age of consent is lowered to 16. Where offences involve men over 21 with young men under 16, detection is much easier—though usually takes the form of parental complaint—simply because in nearly all cases the younger partner will still be living at home.

I hope the Committee will agree with me that it is a mark of an enforceable law that it should not be constantly exposed to the charge of being unfair and unjust whenever an attempt is made to apply it in a specific case. What is the point of having such laws? We do not expect the law on burglary to be flexibly applied. If the police apprehended burglars who had just removed the contents of my house I would find it extremely alarming to be told that the Director of Public Prosecutions operates a flexible policy and will only prosecute if he thinks it in the public interest to do so and having regard to the specific circumstances of the case. Similarly, most parents of under-age girls would find it alarming to be told that charges of unlawful sex would only be brought at the discretion of the police. Yet that is how matters stand with unlawful sex as currently applied to homosexual acts.

It is of the essence of an enforceable law that it should be enforced in every case that it is broken. I know that that is an ideal; yet if I am caught speeding I expect charges to be brought and would consider myself extremely lucky to be let off with a caution. Where it comes to the age of consent my argument is that the only enforceable law is one which equalises the age of consent at 16. There is no significant demand to legalise sexual acts below that age. We all expect the law to protect minors. We also have evidence at present that the law is enforced with respect to under-age girls, as the public expect. The same would be the case with boys who were under 16.

We tread an extremely dangerous path if we pass laws which are intended to be largely declaratory. We run the risk of so discrediting that kind of law that it becomes impossible to apply, even in cases where it ought to be applied. Nothing is more likely to undermine the effective protection of those who need protecting than to have laws governing sexual behaviour which cannot be rationally defended and in consequence cannot be enforced in specific cases.

Those in favour of retaining the present law argue that consent at 21 means consent at 18 in practice. They say that consent at 18 would mean consent at 16 in practice. If that is the case, why not go straight there in the first place? They then go on to argue that consent at 16 would mean consent at 14 or 15 in practice. But that last step in the argument is a complete non sequitur. The reason that laws which apply to 21 year-olds are not enforced is that public consent for enforcing them is not available in the specific cases, irrespective of what the public in general want. Where laws are enforceable we only pay attention to whether justice is seen to be done in the specific case; we do not question the justice of the law itself. That is why the law can be enforced for an age of consent of 16—because the justice of that law will not be questioned—and why it cannot be enforced for an age of consent of 21 or 18.

It is argued further that the homosexual age of consent ought to stay at 21 because under 21s are most sexually active and most likely to engage in practices which lead to AIDS. As far as we can ascertain, that is not so. The facts on buggery, for example, do not support it. The average age at which the practice starts seems to be between 20 and 21. But even if it started earlier, the argument is a complete non sequitur. It presupposes that the existing law is a deterrent. But the existing law is not a deterrent; an unenforced law does not deter. What it may deter is young homosexuals seeking advice on safer sex. It does not prevent homosexual behaviour; it simply turns homosexuals under 21 into criminals.

There is another equally unsatisfactory aspect about the present position. Young men between 17 and 20 are subject to criminal prosecution for giving consent to sexual relations whereas girls under 16 cannot give consent. They cannot be criminally liable. If the homosexual age of consent were lowered to 18, young men of 16 and 17 would still be liable to prosecution. It is completely illogical that a law which ostensibly exists to protect young people should also treat them as criminals. That is why I support the amendment which I understand will be moved later in Committee by the noble Lord, Lord Ponsonby.

Perhaps I may say a few words to the Conservative Family Campaign which has been urging us, very ably, to support the existing law of consent. Last year I supported an amendment in this House to allow parents to withdraw their children from sex education classes in schools on conscientious grounds. I agreed with the arguments then of my noble friend the Duke of Norfolk. Like him, I was against using the law to impose a particular view of sexual behaviour. But it seems to me, with respect, that he has not followed the logic of his own position on this issue. I am equally against using the law to enforce moral disapproval. The reason the present law is a bad law is that it is discriminatory. It discriminates against a particular section of the population. Catholics in this country should appreciate the force of that argument.

Tristan Garel-Jones summed up the matter admirably in another place: by voting for 18 we shall end up with the worst of both possible worlds—a newly enacted law that is not properly and rigorously upheld but … in which young people will still be in fear of criminality. If noble Lords are persuaded by the arguments for this amendment they should not be dissuaded from expressing that support in the Lobby by the fact that another place has voted for 18. In allowing a free vote the Government invited MPs to decide the matter in their personal, not their representative capacity. This sound Burkean argument should have particular appeal in this House where we are answerable only to our consciences.

The Earl of Longford

I realise that everyone hen: has their own experience of this terrible subject and that we all have our qualifications and disqualifications My main qualification may endear me for the moment—but only for the moment—to some of those who support the homosexual cause in that I was the only person who was bold enough in 1957 to espouse the Wolfenden Report by opening a debate in this House in that year when no one in the House of Commons would touch it. So no one must come and tell me that I am a queer basher or something of that kind. I moved that Motion and the attitude of the Government was not helpful. It took another 10 years and, if I may say so without bringing party into it, a great Labour Lord Chancellor, Lord Gardiner, and the Labour Party to introduce the Bill which then carried the Wolfenden Report into law. I hope we shall not be told by the Government that they have always stood for the introduction of more liberality for homosexuals. That was not so in 1957 by any means.

However, my disqualification is that my dear old friend, Professor A. L. Rowse, said of me to one of ray daughters that my trouble is that I lack homosexual experience. I do not know how many other noble Lords; lack homosexual experience.

Lord Stoddart of Swindon

Hands up!

The Earl of Longford

There are no hands going up in a contrary sense. At any rate, I suffer from that: disadvantage. It may be that other speakers have an advantage of me there.

I am standing firmly on the issue of 21. If it is said that I approach this from a Christian point of view, yes, that is perfectly true, but I realise that there are Christians—perhaps better Christians—who do not agree with me on that. I can only say that I regard all human beings as equal in the sight of God. But I cannot say that I am sorry that none of my children or grandchildren—or, so far as one can judge, my great-grandchildren—is homosexual. I doubt whether anyone here wants to bring into this world homosexual young people. I believe it is a terrible handicap in life. We have to do all that we can to help them, but certainly we must not pander to them. That would be the greatest mistake possible. In that sense, I am on the side of trying to protect homosexuals.

I was asked this morning on the radio to sum up my case in 15 seconds. I tried to and I shall try again now. I submit that if the age is reduced below 21 the amount of corruption by middle-aged and elderly gentlemen of young adolescent boys will much increase. That is 15 seconds and that is clearly where I stand. My noble friend Lady Turner said, "What about women? Why shouldn't they be treated the same way?" I am afraid that I do not think anyone here feels that women and men in this matter are exactly the same. I shall, again in 15 seconds, try to show what I mean. It is perfectly possible, as I know from experience, for young women to be prostitutes and to recover and become mothers and maybe grandmothers. But it must be rare indeed—I have studied this question in a number of different connections, including the criminal world and also the Streetwise centre for homosexual prostitutes, which has closed down—for anyone who is corrupted as an adolescent boy to lead a normal life thereafter. So, without more ado and taking a little more than 15 seconds, but not much more, I support the age of 21.

4.15 p.m.

Baroness Young

I unquestionably support retaining the age of 21. I agree very much with all that the noble Earl, Lord Longford, has just said. Nothing I have heard in this afternoon's debate has altered my view on this matter.

I am not standing up to apportion blame to anyone but I do think that we need to consider this matter very carefully and to answer the very clever arguments, if I may say so, that are put by all those in favour of lowering the age to 16 or 18. The first argument came from the noble and learned Lord, Lord Simon of Glaisdale, who more or less told us that we should not vote for anything else but 18 because another place has voted for 18. If one took that point seriously we might just as well pack up and go home now and not debate anything at all. It is a free vote. We are one of the Houses of Parliament and we are perfectly entitled to express our view. We have often, as a matter of historical fact, been a more accurate judge of public opinion than another place.

Secondly, I think the argument put by the noble Earl, Lord Longford, is a very powerful one. All of us know perfectly well that if the age comes down from 21 to 18 it will come down very quickly to 16; it will come down after that to 14, because the pressures will be on; and, who knows, it will be simply accepted that homosexuality is as normal as ordinary heterosexuality. It is a very dangerous path that we are going down. That is the first reason why I support retaining the age of 21.

I have spoken in your Lordships' House in the debate on the International Year of the Family and I think that one of the great dangers confronting society today is the break-up of the fabric of society. Whatever we may think of it, to have more divorces, more single-parent families and more children born out of wedlock is not really a desirable state of affairs. Every year the statistics increase and we have this army of unhappy children. This debate today seems to be one more nail in the coffin of the fabric of society because we shall simply go down a path making matters worse. All the clever arguments in the world advanced by the police, by, I am shocked to hear, Save the Children and Barnardo's, by psychiatrists, and by others, fly in the face of what the public know to be true and what experience over hundreds of years has shown us to be the best form for society, which is the family in what has always been accepted as its proper form.

I say to the most reverend Primate the Archbishop of York that I was very upset by his speech. I shall of course read it again very carefully. I am a member of the Church of England and in the church which I attend regularly I do not believe that his view is held either by the clergy, by the parishioners or, indeed, by very many members of the Church of England. We are worried. We want a definite lead on some of the moral issues of today. We should not be afraid to say that the normal is better than the abnormal. That is a relevant statement.

I now turn to the argument about the age of 16. That seems to be the most dangerous of all. What are we going to say to schoolchildren? Will it be all right for the master to abuse the school child or for the headmaster to do so because that is all going to be perfectly all right in future? Even at 18 there are plenty of boys at school who could be subjected to that abuse. It is certainly completely counter to the Children Act, which we all agreed to a few years ago. It is setting an extremely bad example. If we consider the matter from the point of view of school teachers it will simply create a great deal of difficulty and confusion.

The noble Lord, Lord Skidelsky, made a very powerful argument about the enforceability of law. It is the argument that I read in the debate in another place. Why we should imagine that because the law is difficult to enforce at the age of 21 it will somehow become miraculously easy at the age of 18 or 16, am not at all clear. If his argument is that it is unenforceable at 21 because a lot of people consider it to be unjust, I can tell him right now that if the age were at 16 or 18 a lot of people would think that unjust, too. It is no use the noble Lord shaking his head. I am quite certain that there are a great many people—we have not taken a vote on it so we do not know—who are not in favour of the age of 16. The idea that the whole of the population of this country is in favour of the age of 16 is quite wrong and the law would become equally unenforceable.

Lord Skidelsky

Does my noble friend think that the present law as regards the age of consent for heterosexuals is considered unjust?

Baroness Young

The present age for heterosexuals has been in existence for a very long time. If I was deciding this de novo I am not sure that I would say that the age of 16 was right, but that is what we have got. But there is a very great difference which has been partly brought out. In the first place girls mature earlier than boys. On average the 16 year-old girl is more mature than the 16 year-old boy. But if a 16 year-old girl has heterosexual relations, the worst than can happen to her is to have a baby. She could lose her heart to an unsuitable man and she may be very unhappy. But there is nothing to stop her going on to have a happy marriage, children, and to live a normal life. What is so tragic for the 16 year-old boy is that if he becomes entangled with homosexuality he denies himself forever the opportun-ity for marriage, children and a normal life.

The noble Lord, Lord McIntosh, said one thing with which I agree completely. He said that the law should be there for the protection of society. I believe that the age of 16 is very young, because both boys and girls are effectively not grown up at that age. It is the job of the law and of adult society to protect them and to try to prevent this sort of thing happening; either homosexual or heterosexual sex, for that matter. That is my own personal view. I believe that we would have a much better society if adults truly fulfilled their responsibili-ties to the young without being ashamed to say what they believe to be right.

I have two points to make in conclusion. I speak not only as a Member of your Lordships' House, but as a mother. I have three daughters. I look at my four young grandsons and ask myself frequently what kind of a world are they growing up in and would I really like for them to have sex or homosexual sex at 16 or 18. The short answer is that I would not. I believe that most mothers want their children to grow up as normal adults. They want them to marry and have children and grandchildren. That is a very normal fact of life which we should remember.

My last point is a political one. I make it to some of my colleagues who seem absolutely convinced that 18 is the right age. I do not believe that there is any public support for lowering the age for homosexuals. There is, of course, a homosexual lobby which has been very strong in arguing its case. Like a lot of people who put up rather doubtful cases, at times they can argue it very well. But the idea that the mass of the people of this country believe that this is a most urgent matter is not true. For the Conservative Party to be supporting these arguments seems to me to be quite contrary to all our general beliefs. I believe very strongly that we should keep to the age of 21 for the reasons I have advanced. I hope very much that the House will support my noble friend the Duke of Norfolk in his proposition that Clause 139 shall not stand part of the Bill.

4.30 p.m.

Lord Annan

It is nearly 29 years ago since I made my maiden speech in your Lordships' House. It was on the Third Reading of the second Bill of Lord Arran, who introduced the Bill—I remind the noble Earl, Lord Longford, that it was he—to make homosexual acts between consenting adults legal. I spoke in support of that Bill. I am glad that at any rate today nobody is trying to overturn the provisions of that Bill.

Before we go any further about the ages of 14, 16, 18 or 21, I wonder whether we should not distinguish what young men are like. Twenty nine years ago I had much more confidence in my judgment than I have today about what young men are like because I was in daily contact with them and with young women at university. I remind the Committee that we are an elderly House. We need to take into account whether we really know what young men are like today.

There is one thing which is perfectly clear: there are always going to be some who are going to be congenitally homosexual; psychologically and physio-logically, they are predestined to that end and no amount of psychiatric or hormone treatment will alter that. When Lord Arran's Bill was being debated there was certain things that could not be mentioned. One could not mention that this country's most prestigious painter; our most famous choreographer at the Royal Ballet; our most renowned composer of classical music whose operas had been performed all over the world; and the best known and finest English-born poet, were all homosexual and could never have been anything else. Two of them were devout Anglicans.

There is one further matter. Unless anyone should think that I am merely citing a lot of eccentric artists, perhaps I may remind the Committee of one tragic case. During the war one person, perhaps more than any other, prevented us from losing the war (of course, not winning it, but he prevented us from losing it) and that was a scientist, a fellow of my college at Cambridge —Alan Turing. He broke the Enigma code and enabled the Royal Navy and Coastal Command to defeat the U-boat offensive. He saved us from starvation in this country. When later he was a professor at Manchester he was apprehended. A young man whom he had befriended stole some of his goods. In his naivety he went to the police. The police said: "What were you doing with that young man?" He was arrested,, tried and convicted. He was sentenced to undergo hormone treatment. He grew women's breasts and in his disgust he committed suicide.

We should not forget cases of that kind and we should realise that in their lives some people will be forced to be and will continue to be homosexuals. It is absurd to say, when such people have passed the age of majority: "You must wait until you are 21 before you give vent to your natural feelings. If you do not wait, we will prosecute you". Do we really want to put such people in the dock? Let us not forget the line of that remarkable classical scholar and poet, A.E. Housman, which he wrote after the trial of Oscar Wilde, though of course he did not publish it during his own lifetime because he could not: They are sending him to prison for the colour of his hair". Of course we all know that the vast majority of our fellow men are stoutly heterosexual but there are young people who want to experiment when they are young. They experiment mostly with ideas, and some of the ideas which we hold when we are 18 or 16 we may look back on in later life with some amusement. But of course some of them want to experiment with other things: with drugs, gambling or sex. They may well have homosexual affairs. But in my experience, for example, at boarding school, highly-sexed boys of 16, 17 and 18 may well have had homosexual relations with other boys, but that did not mean that they would be homosexual for the rest of their lives. I must say that to the noble Baroness, Lady Young. In my experience, and particularly at university, many of those who are homosexual happily marry within a few years of going down.

So I imagine that those who oppose this amendment have in mind another kind of young man: that is, the kind of young man whom we describe as "immature". Our Victorian ancestors would have said that such a young man was a weak character, infinitely seducible by ideas, by groups or by whatever is fashionable or faintly unorthodox. I suspect it is these young men whom the movers of amendments to keep the age of consent at 21 or even 18 have in mind. They have before their eyes the picture of some inexperienced youth being taken up by a homosexual clique and being seduced to that way of life for the rest of his days.

That is not absurd, and I do not agree with the noble Lord, Lord McIntosh, when he rather pooh-poohed the possibility that anybody could be seduced to a homosexual way of life. I think it is very possible. Today the gay culture beckons openly, in a way that 30 years ago it could only do clandestinely—though it was not as clandestine as all that. At some time in their lives susceptible young men are going to meet this culture and they may be attracted to it. However, their character will determine whether or not they go over to it.

Is that a reason for differentiating between the age at which men and women may have sexual relations? I would have thought that the case was overwhelming for revising the age for consenting homosexual acts from 21 to 18. The age of 18 has been for some 30 years now the age of majority and if a young man is eligible to vote, it seems to me that he is eligible to go to bed with a consenting partner of his choice. If he is old enough to be called up and fight for his country in time of war, he is surely able to make up his mind about other things. He can marry a woman without anyone's consent but hers at the age of 18. And who set this age of majority?— Parliament. It really does not make sense if we now say, "Yes, 18 is the age of majority but not in this particular instance". Either someone is fully adult or he is not.

Of course it is true that there is an anomaly. It is legal to have sexual intercourse with a girl of 16. I suspect that that age was fixed a very long time ago, because by then a woman is fully mature and can have children. If the age were to be any higher the courts would be filled with cases of rape and indecent assault. In fact today, with better nutrition and health, women mature much earlier. One can see lively young women of 14 playing at Wimbledon. But here there is a distinct difference between women and men. Boys at 14 are spindly and you will not find any of them playing at Wimbledon. That is a major difference between the sexes. There is no question about it: women do mature earlier than men. At the age of 16 there is still a difference between them. I also maintain that women at the age of 16 are far more sensible than boys at 16. Your Lordships may say that that is a lot of subjective rubbish, but I do not think it is more subjective than some of the psychiatric evidence which has been cited to us this afternoon.

So why should the age be different for a young man? A case could be made—and I would rather enjoy making it—that women are a great deal more mature at the age of 16 than men. But while psychologists might agree and declare that adolescent males at 16 are apt to be assured and keen to prove that they are older than they are, I doubt whether that is evidence enough for distinguishing between the two sexes when it comes to a question of sexual choice and having sexual relations.

I was actually much moved by what the most reverend Primate said on this. He said that there is a case to be made for the difference between 16 and 18, if only to distinguish between the kind of sexual conduct which is necessary for the welfare of the race and that which is deviant. I hope that all members of our society, whatever their views on homosexuals might be, would agree with that. The fact that there are large numbers of deviants is not a reason for denying that difference and therefore I find myself torn between wishing to have, as the noble Lord, Lord Skidelsky, pointed out, one age which is the same for men and women—16—and, as my noble and learned kinsman Lord Simon so eloquently spoke for, the age of 18 as being the sensible and right age. I will in fact listen further to arguments put forward before I make up my mind and I shall speak further on the amendment which the noble Lord, Lord Mayhew, and the noble Earl, Lord Clanwilliam, are moving.

Earl Russell

It gives me great pleasure to hear the noble Baroness, Lady Young, arguing for our right to stand up to another place. I shall remember that. But it does not follow that on this occasion we need to exercise that right. I would also like to say—and this may be necessary to prevent misunderstandings—that I entirely agree with the noble Baroness about expectations for our children: mine are as hers. But if I had had any occasion for doubt in this matter, I could have thought of nothing more disastrously self-defeating, either for their sake or for mine, than to call in the assistance of the criminal law for determining their sexuality.

I am here to speak in favour of the age 16. It seems to me to be the only just and equitable conclusion and also—and this may at this stage of the debate be more important—it is the only one which will prevent this debate from recurring over and over again. However, I am also here to oppose the amendment that the clause should not stand part, to oppose any reversion to 21. I quite understand, and indeed sympathise with, the fact that a large proportion of the Committee feels a distaste for homosexuality. I also understand that a proportion of the Committee regards it as a sin. I will ask them to pause before they translate their own distaste or their own conscience into the criminal law of the land. There is wisdom in the words of St. Thomas Aquinas that human law can neither punish nor even prohibit all that is evilly done.

We in this Chamber are in a position of power, although sometimes it does not feel like it! If we want to prohibit something, we have a chance to do so. The urge to say, "It's bad. There should be a law against it", is very instinctive and deep. It tends to lead to the overloading of the statute book. That argument was made familiar in the debates on the deregulation Bill but it also applies in moral matters and in many others. Perhaps my favourite example is the farmer who in 1640 wrote to his MP to urge him to make a law to stop the sparrows eating his grain. A more topical example is the Act of Parliament of 1531 with the most catch-all Long Title I have ever heard. It is: An Act against buggery, Welshmen, vagabonds and other misdemeanours". It is for that kind of reason that we should pause before we overload the statute book.

I want to consider some conditions which stretch way beyond this debate. Before attempting to incorporate our own dislikes in the criminal law, we should try to check those conditions to see whether they are satisfied. The first is that the Act must command general assent. I do not mean that everybody should agree; I mean that it should be acceptable and tolerable so that we can submit to it being enforced. Perhaps I may take an extreme example. I lived for five years in the state of Connecticut in the former colony of Newhaven where there is still in force a 17th century law which makes it a crime to kiss your wife on a Sunday. I will freely admit that while I lived in the state of Connecticut I was a criminal. I do not usually lightly break the law but on that matter I did so with a clear conscience.

If the law does not meet the test of public opinion, either it will not be enforced—as the noble Lord, Lord Skidelsky, argued—or, if it is enforced, it will not achieve its objective. In 1637 the Earl of Strafford wisely remarked that a prince who loseth the force and example of his punishments loseth withal the greatest part of his dominion. If the punishment is not shaming because, by a large proportion of the population, it is not thought to be being inflicted for something wrong, it does not achieve the desired effect.

We are in an area in which there has been a rapid change in public opinion. I have followed it since I first spoke as an under-graduate in the debate on the Wolfenden Report. Change has taken place slowly since then but during the past year it has become very rapid indeed. Therefore, the movement is away from those who want to keep the law as it is. It is away from them in particular among the young. Among those I teach, the case for the imprisonment of homosexuals is as totally incomprehensible as the case for the burning of heretics. In that situation, invocation of the criminal law is risky. In a divided society, which we must all admit we are, where we consider the criminal law the burden of proof must be on the prohibitor.

The second test is that a law must be enforceable. I listened with care to what was said by the most reverend Primate about setting a norm. We heard that argument in this House on the debate on war crimes. I believed —and when it came to the vote the House believed too —that it was not good to put on the statute book an Act of Parliament which we considered could not be enforced. Since then the history of the issue of war crimes has on the whole persuaded me that that stance was correct.

Apart from the difficulty of public opinion, there is the difficulty of enforcement; most of the offences take place in private. The same difficulty was faced by another place when, in 1650, it decided to make adultery a capital offence. At the last moment, one experienced Member—I will not say in what sense I use that term —inserted an amendment to make conviction require two witnesses. I believe that there is one lone conviction under that Act.

One cannot change sexual orientation by law. It is not an act of will, so it is not something which we can suppose is in any way a matter of expectation. I do not believe that what the law says is likely to influence that. As regards either sex, at no time has it been possible to impose chastity by law. Therefore, I remain to be convinced that if the law retains the age of 21, one fewer homosexual act will take place than if it is changed.

So if the law achieves nothing one must move on to apply the Benthamite test; does it prevent more pain than it causes? As Bentham put it, all punishment, being in itself pain, ought to be admitted if only to avoid a greater pain. I do not believe that the provision will reduce homosexual acts, nor do I believe that people will be abusing their pupils. We must remember and welcome the fact that it has become more unacceptable than previously to abuse heterosexual pupils as well as homosexual pupils. It is the abuse which is the offence in that case, and that we must hang on to.

I will take one example among many of the pain caused by the present law. It comes from my own brief. Members of the Committee may not be surprised to hear that it is the case of 16 and 17 year-olds who encounter the social security system. Of those who make severe hardship claims, 65 per cent. do so because they were thrown out by their parents. Many of them were thrown out by their parents because they were discovered to be homosexual. While what those people do is criminal, they have great difficulty when thrown out on their own in a big city in asking for any help for fear that they may be prosecuted. Instead, some of them become rent boys because they must eat, and because the pay is higher they tend to do it without contraception. I would have thought that the risks of that were obvious. Therefore, the law does not pass the Benthamite test that it. prevents more pain than it causes.

Finally, I turn to the issue of another place. I agree with the noble Baroness that we can reject what another place does. When I argue for that, I am usually arguing for challenging the power of a government who need checking somehow. But again I would propose some conditions for the circumstances in which we may usefully challenge another place. I would do it if any one of those conditions were satisfied. The first is that we should have strong support in public opinion.

This Chamber should be wary of raising the cry that was raised in 1832 and 1911 of Peers versus people. When in the case of the eyes and teeth tests 87 per cent. of public opinion was on our side, that was a reason for asking another place to think again. Where all informed opinion is on our side, as in the case on the debate on the cab rank rule in the Courts and Legal Services Bill, there is good reason to ask another place to think again. Where we are arguing a major constitutional principle, as we were in the case of the police committees on the Police and Magistrates' Courts Bill, there is good reason to ask Members of another place to think again—

Lord McIntosh of Haringey

They did.

Earl Russell

As the noble Lord, Lord McIntosh, says, they did, and we owe much gratitude to him for his efforts in helping to persuade them to do so. In any of those cases, we were within our power to ask another place to think again. But in this case, if we send the Bill back to another place, we are taking on a very large majority there with the tide of public opinion moving against us; and it is moving against us fastest among the age group to which the law will apply most. Finally, if we send the Bill back, we should take care because the other place may change its mind and vote in favour of the age of 16.

Lord Ashbourne

I shall be extremely brief. As noble Lords have had some difficulty this afternoon in hearing speakers, if anyone finds it difficult to hear me, if they will raise one hand, I shall do my best to increase the volume or improve the direction, as may seem appropriate. Homosexuality is unnatural. It is a perversion. We are told in the Book of Leviticus that it is an abomination to the Lord.

I was extremely pleased to hear the most reverend Primate the Archbishop of York explain and argue so cogently this afternoon that homosexuality is not just an alternative to heterosexuality. I agree entirely with him about that. Homosexuality is unnatural; heterosexuality is entirely natural. Therefore, there is a fundamental difference between the two.

Therefore, I urge Members of the Committee to vote Not-Content to Amendments Nos. 160A, 161A, 163A and 164A, and I agree with my noble friend the Duke of Norfolk that the Committee should oppose the Question that Clause 139 shall stand part of the Bill.

Lord Stoddart of Swindon

We are having a very good and civilised debate this afternoon. It is taking place on the basis of an amendment inserted by another place into the Criminal Justice and Public Order Bill. The noble Lord, Lord Skidelsky, said that the people in the House of Commons who had moved the amendment and voted upon it did so in a personal capacity. Of course that is true. But he should not forget that they are also representatives. Therefore, they have a duty to those whom they represent. I believe that the duty which Members of the House of Commons have to those whom they represent means that they should at least discuss the matters with their electorate before they, willy-nilly, without any notice, insert into a Bill—a Bill that has little to do with the issue—an amendment of very great note and anxiety to many people up and down this country.

I wonder whether the mover of the amendment—I believe it was Mrs. Currie—to reduce the age of consent to 16 had discussed that matter with her constituents at the general election which took place not so long ago. I wonder whether any of those Members who voted in another place—because they are still representatives, unlike us—discussed with their constituents the issue of reducing the age of consent for homosexuality to 18. My guess is that they had not. Therefore, as is so often the case now, the general public is excluded from the debate. I believe that that is altogether reprehensible. It would have been far better to have had a much longer debate in which the general public could have taken part and we should then have been able to know better its opinion.

Having said that, I wish to say why I oppose my noble friend's amendment to reduce the age of consent to 16 and to say also why I shall also oppose the amendment in favour of keeping the age of consent at 21.

In the first place, I believe that there is a difference between young men and young women. I have a daughter and I have two sons. I know that the rate of maturity was different for my daughter compared with my sons. Therefore, I believe that that is a relevant argument which draws me to the conclusion that I should vote against my noble friend's amendment.

But as the noble Lord, Lord Annan, pointed out, there is a relevance in relation to the question of 21 or 18. When the Sexual Offences Act 1967 was passed, the age of majority was 21. Of course it was logical that the age of consent for homosexual acts should be put at the age of majority. For my part, that is the sticking point. Parliament in its wisdom reduced the age of consent from 21 to 18. Therefore, it really would be odd if we saw just one simple act as being outside the age of majority.

After all, at 18 people can now buy houses. At the age of 18, they can go to war, and have been able to do so for a hell of a long time. They can do virtually anything at the age of 18. That is the age of majority. That is why I shall certainly vote against the retention of 21, and I shall vote to keep the amendment which was passed in the House of Commons as it is. I do not do that because that is what the House of Commons did but because I believe that is the sensible option.

Finally, I wish to deal with one other issue. We have heard a great deal about equalising the age of consent at 16. But of course, we are not doing that. The acts are different. This amendment does not provide that acts of buggery should be permitted with females. We are saying that they should be permitted only with males. Therefore, there is no equality. It will remain an offence to commit an act of buggery with a female aged 16 or any other age. Therefore, when people are voting and thinking of reducing the age to 16 on the basis of equality, they should understand that there is no equality in what we are now trying to do. I repeat that it will remain an offence to undertake an act of buggery with a female of any age.

Therefore, for all those reasons, I cannot support my noble friend's amendment, although I shall not go so far as to support amendments which would alter the age of consent from 18 to 21.

Lord Renfrew of Kaimsthorn

In speaking in favour of the amendment in the name of the noble Lord, Lord McIntosh of Haringey, and those grouped with it, at the same time I should like to make clear why, at this stage in the passage of the Bill, I believe that the noble Lord, Lord McIntosh of Haringey, might do well not to put his amendment to the vote, although if he does, I shall feel obliged to vote with him.

Since the passage of the Sexual Offences Act 1967, it has been the principle of our law that consensual sexual acts taking place between two adults in private are not unlawful. There may be various such acts which can be considered sinful, according to widely held moral and ethical codes—and adultery would be one such— but that does not make them unlawful. We also have the principle that it is unlawful for adults to have sexual relations with minors. That principle would find agreement with most Members of the Committee.

What is most deeply offensive about the present situation, as it applies before the passage of the Bill, is that it criminalises a significant and very vulnerable minority within our society; that is to say, young homosexual men between the ages of 16 and 21. If the Bill as it has come to us from another place is passed in its present form, it will still criminalise those young men between the ages of 16 and 18 who give physical expression to their feelings.

The manifest injustice and inappropriateness of the situation—in effect, to criminalise a significant minority of young men between the ages of 16 and 18—is such as to cause deep unease to what I judge to be the great majority of young people today, including the great majority of those young men and women who would personally find homosexual relationships so far as they are concerned unattractive or distasteful.

The point has been made that Members of the Committee are in general rather older than the individuals on whom we are focusing this afternoon. However, I have the opportunity and the privilege of talking about many matters with people in those age ranges. I can assure Members of the Committee that those with whom I have spoken in general—although not all of them—feel that criminalisation process to be inappropriate and distasteful. Perhaps I may stress that that is the view of women students, with many of whom I come into contact, as much as men students.

Moreover, many women students—and, no doubt, many young women in the present world—also find themselves to be vulnerable. I believe that the suggestion was made earlier in the debate that many women would be distressed or would disapprove if the age of consent were lowered from 21. However, I can assure Members of the Committee that there is a feeling abroad among young women as much as among young men that one has to be more sensitive about personal relationships. One does not have to be a woman feminist to feel that quite acutely. That feeling of awareness extends to young homosexual men as much as to other sectors of society.

As we have heard, the practical consequences of the present situation are that, in criminalising this vulnerable segment of the population, society is making it more difficult for them to seek the advice and guidance that some of them need or wish to have, including guidance about health. Indeed, some Members of the Committee have spoken about their concern regarding the risks to that section of the population of incurring AIDS or, more accurately, of being infected with the human immuno-deficiency virus which causes AIDS. As we know, most of those public bodies which are concerned with health care see the criminalisation of those young people—and the bar that that sets up to their receiving proper advice and guidance—as a health risk and not a safeguard. That is certainly true of the all-parliamentary group on AIDS and other specialist groups about which we have already heard.

The argument is not confined to the practicality of applying the law and to justice and the avoidance of inequality together with the avoidance of harassment and discrimination which are prevalent in our society; it is also, as many members of the Church of England have recognised, concerned with morality. If we are speaking of family values, I submit that it is no longer acceptable to cast out of the nuclear family, or the Christian family, those young men who are homosexual. I should remind Members of the Committee that the law wisely takes no account of women who fall within that category. I was encouraged by the remarks of the most reverend Primate whose views coincided to a significant extent.

I have received with unease a flow of lobbying literature, some from a group calling itself the "Conservative Family Campaign", and other materials which contain a tide of something which many would consider to be assertive dogmatism. In view of the appropriate tone of the Committee's debate, I shall avoid the word "bigotry" although it did flash through my mind. Some of the material manifests that particularly British ability to marry puritanism with prurience and displays what might be considered an unhealthy preoccupation with matters sexual. I hope: that many Members of the Committee will agree that family values today include moral support and constructive help for all our young people whatever their sexual inclinations, into which it is not necessarily our business to inquire.

As for the Conservative family, perhaps I may say that I believe it to have been an important symbolic act: when my right honourable friend the Prime Minister invited Sir Ian McKellen to meet him at No. 10 Downing Street. In reading Hansard, I have been impressed by the quality of debate on the subject in another place as well as by details of the voting. So let: me go so far as to say from this side of the Committee that I, for one, resent those lobbyists and campaigners who, purporting to speak in the name of Conservatism, in some cases equate that outlook with what can only be described as homophobia. However, I would certainly not apply the latter to any of the observations made in Committee today.

For those reasons, I favour the amendment moved by the noble Lord, Lord McIntosh of Haringey. However, as other speakers have indicated, I feel that it may not be our place to seek to overturn what was decided by a free vote in another place. It is true that the voting there was close on the 16–18 issue with, I believe, some 280 votes in favour of the amendment and 307 against. However, I do not believe that we should seek to reverse that decision. I make that argument with greater force as it can be applied consistently—as, indeed, was done by the noble Lord, Lord Stoddart of Swindon—in opposing the Motion standing in the name of the right reverend Prelate the Lord Bishop of Chester, and others, that Clause 139 should not stand part of the Bill.

5 p.m.

Lord Jakobovits

As a member of the faith community that started the whole argument that we are debating today by ruling in its legislation that homosexual conduct was not only immoral but also illegal, I feel heartened by the valuable contributions made at the outset of our deliberations, most notably by the most distinguished spokesmen of the two Christian denominations who greatly enriched our discussions. I fully endorse not only their general trend but also that of many other speakers who followed them and who support the amendment.

For my part, if I have some hesitation in giving my support to the upper age of 21 it is because I do not believe that even at 21 things that previously were an offence and immoral can suddenly become moral simply because someone has passed the age of 21. Can it be argued that two consenting individuals contemplat-ing or committing an act regarded as immoral under certain circumstances should be exempt from culpability once they reach a certain age? Also, why do we brand as illegal bigamy, which is a moral offence, and adultery, which is still a moral offence, as well as incest? They are all moral offences; nevertheless, they are still branded as illegal and actionable. In other words, there is a discrepancy between regarding certain moral spheres as being outside the reach of the law after a certain age and other equally immoral acts as still being within the law; that is, within our accepted legislation.

Moreover, speaking now on a broader scale, I am likewise puzzled as to why we often have the attitude that it is minors or younger people who must be protected against abuse and, above all, against corruption. It is as if people who are over 21, or over 30, or over 40 are not equally prone to be corrupted by literature that is corrupting or that is indecent, or by films that are indecent. As a matter of fact, I think they are more prone because they are more mature and therefore are likely to be more influenced by what they read and by what they see. The whole notion that morality, as it were, is only to be enforced and applied to the young, and that those who have reached maturity are no longer to be governed by some form of self-restraint or self-discipline that keeps our lives within certain well defined limits, is one that I cannot accept as being basic to the kind of society for which we are looking.

This leads me to what is, I believe, the major point here. As has been pointed out, the law must not only be something that enforces obedience to a certain code of life but also something which sets the standard. Our society has paid enough for allowing the doctrine "as long as it makes you happy" to be the gauge to what may be done and what should not be done. We live in a society where the pursuit of happiness is the summum bonum, the ultimate aim of life, and as a result we pay for that today with higher divorce rates and higher crime rates because we indoctrinate our youth to feel that whatever makes them happy is legitimate. I cannot see how we, whose role is not merely to reflect public opinion but to help in forging it, can endorse that view especially at a time when already we have departed so devastatingly from the norms that would make for a decent, self-controlled and upright society.

For my part, I must say finally that I believe we are bound, as the most reverend Primate mentioned, to set the kind of standards that will influence society at large and the country at large as an example and as an expectation, even if we cannot in all cases enforce them. The illegitimacy of an act is independent of the power always to enforce standards, and therefore I hope that we shall give a signal to our society and to the world at large that we still want our children to be raised in an environment in which the difference between right and wrong is inculcated by teachers, by parents and certainly by ourselves.

Lord Renton

Although age has been mentioned several times in this debate, the fundamental facts with regard to it have not yet been put before the Committee, and I take the liberty of doing so. In answer to a Written Question that I tabled earlier this year, we were told that in 1993 over 1,000 people in the United Kingdom died of AIDS, and 732 of them were homosexual men. Some of those homosexual men were bisexual, but I would have thought they were a minority. If we lower the age for homosexual consent, taking it either below 21 or below 18, it cannot be denied that more homosexuality will be practised. I would have thought that it is likely that more young men will be infected with AIDS.

The experts say, "Oh that is inevitable whatever we do about the permitted age, so let us legalise it so that people will turn up for medical treatment". The experts think they are more likely to do so. That is the view expressed by my noble friend Lord Renfrew of Kaimsthorn, and I respectfully disagree. I think that is a fallacious argument for two reasons. First, those who become infected can get medical treatment anyway, and it is such a fatal disease that they are crazy if they do not apply for medical treatment. The second argument is this—if we make it lawful for people under 21 to be homosexuals, many more will be exposed to the risk of AIDS and many more may die of it. God forbid that we should do so!

5.15 p.m.

Baroness Jay of Paddington

I rise to support my noble friend's amendment and to disagree respectfully with the contribution of the noble Lord, Lord Renton. I declare my interest in this matter as the founder director of the National Aids Trust and as someone who is at present a member of the governing body of a number of the voluntary and educational organisations which have been referred to by the noble Lords, Lord McIntosh of Haringey and Lord Kilmarnock, in proposing the amendment, and which have rightly identified their total support for more health education in this country.

I would respectfully say to the noble Lord, Lord Renton, that the point is not that people will be cured of HIV by coming forward for medical treatment as there is no cure. The argument is that more people will be prevented from catching this virus if there is better education that is more widely available at a younger age. That is a simple fact which is well known, as I say, to all these bodies which have completely identified themselves with the amendment of my noble friend because they understand that homosexuality will not be spread by lowering the age of consent but rather that appropriate education will be spread and that will prevent the spread of HIV.

Lord Craig of Radley

We have been discussing inevitably very much the impact of this measure on the homosexual community and on the individual homosexual. I believe it is also right to consider the feelings of the vast heterosexual majority in reaching our decision on the matter of age. I personally do not wish to be aware of what may go on in private between consenting adults, but I find it obtrusive when those of homosexual tendencies choose to parade their feelings vociferously, and sometimes objectionably, in public. I nevertheless believe we must accept this public manifestation now between male adults; but I ask myself whether we should accept it also between adults and those who are still legally minors. I would find that particularly objectionable. I believe that in reaching a decision on age in relation to this matter, we should not overlook that point.

Viscount Mountgarret

I should like to lend my support to my noble friend Lord Renton in his argument about AIDS. I would go further and suggest that if we were to consider lowering the age of consent even further to 16, there is a real danger that in many schools where pupils have not yet finished their education, we may well open the flood gates to all sorts of unacceptable carryings on. I feel that it is correct to leave the age of consent as it stands at present. If the argument of my noble friend Lord Renton is carried through to its conclusion, it could almost be argued that the age of consent ought to be raised to protect people from themselves.

The noble Lord, Lord Stoddart of Swindon, produced an argument which I believe is fallacious. He said that just because the general age of consent had been reduced some time ago from 21 to 18, it would seem odd to leave the age of consent in this matter at 21, and therefore it follows naturally that it should be reduced to 18. But that surely is a case of the tail wagging the dog. Am I not right in thinking that there was a time when the coming of age was 21 but one could obtain a full driving licence at 17? If one followed the argument of the noble Lord, Lord Stoddart of Swindon, to its conclusion young people could not have had a driving licence at the younger age. Reference has been made to whether this Chamber has the right to overturn what has been considered in the lower House.

Lord Stoddart of Swindon

I am most obliged to the noble Viscount for giving way. I did not say that the age of consent had been reduced from 21 to 18. I said that the age of majority had been reduced from 21 to 18. That is quite different. The point that I sought to make is that if, at the age of 18, people are able to make major decisions about their lives in financial and economic terms they should be able to make decisions about their personal lives as well.

Viscount Mountgarret

I apologise to the noble Lord. I must have expressed myself extremely badly. I meant precisely that. The tail is wagging the dog. In my view the age of majority has nothing to do with the age of consent in this matter.

As to the constitutional position, I do not believe that that should form part of our deliberations in making up our minds which way to vote if this matter is pressed to a Division. This Chamber exists in order to assist the other place in coming to decisions. The fact that the other place reaches a particular decision on one matter does not necessarily mean that it is always right. It would be incorrect for this Chamber not to exercise its power in order to give the other place an opportunity to reconsider the matter.

This matter is non-political. It will be a free vote. Therefore questions of manifesto undertakings or the Salisbury convention do not come into play. I hope that if the matter comes to a vote we shall express our views, even if that means overturning the decision of another place.

Lord Ponsonby of Shulbrede

At Second Reading I made it clear that I should have preferred to have concentrated our consideration on Clause 139. Nevertheless, I warmly welcome the opportunity to debate lowering the age of consent to 16. I am grateful to my noble friend for providing that opportunity.

The arguments have been fully explored in relation to possible ages of consent. However, in my view the central issue is that homosexuals are people in their own right. They are not corrupted heterosexuals; they are not recruited to be homosexuals.

I remind the Committee that a case is pending before the European Court of Human Rights concerning the homosexual age of consent. I do not know what the outcome of the case will be, but that court has already forced a number of European countries, including the Irish Republic, to reform their laws in this area, with no noticeable harmful effects on the wider society in those countries.

I find it shameful that our fellow citizens should have to go to the court on this matter. We took on the treaty obligations embodied in the European Convention on Human Rights because of the horrors which occurred in Europe 60 years ago. It is often said that the convention is a minimum standard. I believe that we should be in advance of it if we are true to the best traditions of that standard.

I do not believe that anyone ever sets out to infringe human rights. That happens because of a blindness or lack of imagination. For some apparently plausible reason one pretends that someone unlike oneself does not deserve or should not be given the fair treatment one would wish to receive oneself. That is to pretend that our society need not be built on the ideal of loving one's neighbour as oneself. That is the principle on which I base my belief on equality for homosexuals.

If there were any evidence that homosexuals damaged the fabric of society I might hold another view. If there were any evidence that a differential in the age of consent did anything to limit the incidence of homosexuality I might have another view. I should not like the discrimination any better, but there would at least be some reason to believe that the law would achieve the end that was sought.

What are we left with? Some believe that society has the right to legislate simply to express its disapproval of certain activities. We have heard much about the morality of homosexual behaviour this afternoon. I find the idea of society having rights which override the rights of human beings to equality very dubious. But perhaps I am just an old-fashioned socialist.

I believe that this Chamber is united in believing that people need to be protected from those who would take advantage of them. We all need protection from sexual assault. The amendments in my name—which we shall come to in due course—have that as their common theme. But young people need respect from the law in order to learn respect for the law. They will not respect us if we use the law to enforce our prejudice against their natures. I do not believe that their homosexual contemporaries will respect us either. Homosexuality is widely accepted outside this Chamber as part of a rich diversity of life, particularly among the young. We are not considering this matter in a vacuum; we are legislating for the real world.

Earl Ferrers

This subject is one on which people of all types, whether inside or outside this Chamber, feel very strongly and on which they hold strong and sensitive views. Whatever one's own opinion, those are views which we must respect. The debate this afternoon has respected the views of others.

We must be clear that the effect of Clause 139 is to reduce from 21 to 18 the age at which two men may engage in homosexual acts in private anywhere in the United Kingdom. Amendments Nos. 160A, 161A and 163A would reduce the age of consent to 16. This is an issue of conscience, which the Government consider falls properly to be decided by a free vote. The Government will respect the will of Parliament when the Bill completes its passage.

Perhaps I may turn first to Amendment No. 164A in the name of the noble and learned Lord, Lord Simon of Glaisdale, to which the noble and learned Lord spoke in connection with the other amendments in the grouping. The noble and learned Lord's amendment seeks to make allowance for the "mistake" as regards age. The noble and learned Lord said that it was a probing amendment. It is fairly complicated, and I shall do my best to explain the difficulties.

The amendment reflects a similar provision in the law that if a man under 24 has sexual intercourse with a girl who is under 16 but whom he believes to be over 16 he does not commit an offence. However, there is one significant difference between the two situations. A girl who is under 16 does not commit a crime if she has sex with an older man. However, a young man who is under 21—or 18 if the Bill becomes law in its present form —is liable to prosecution if he commits a homosexual act, whatever the age of the other party to the act.

The noble and learned Lord's amendment would have the curious effect of leaving the younger man free from prosecution if the older man thought he was over 18, but the younger man would be liable to prosecution if the older man thought he was under 18. In other words, under the noble and learned Lord's amendment, if a 23 year-old man thought that a 17 year-old was actually 18, both the 23 year-old man and the 17 year-old boy would escape conviction. But if the 17 year-old boy looked his age and the older man knew that he was only 17, then both parties to the act would be guilty. In this case, whether or not the younger man is guilty depends not on what he did but on how old the older person thought he was.

Lord Simon of Glaisdale

I am most grateful to the noble Earl for his explanation. What he says would apply equally to the counterpart in relation to heterosexual offences. However, I indicated that I shall not move the amendment. I merely express my gratitude to the noble Earl.

5.30 p.m.

Earl Ferrers

I deeply appreciate the noble and learned Lord saying that he will not move the amendment. I am rather less appreciative of the fact that he put it down in the first place because it took me hours to understand the exact permutations.

Perhaps I may refer to one other point made by the noble and learned Lord. He said that he was concerned about the policy on prosecution of 16 to 18 year-olds. Any prosecution requires, first, a reasonable prospect of conviction and, secondly, a public interest in prosecution. My right honourable friend the Solicitor-General has set out in another place how the Crown Prosecution Service approaches those matters. I can tell the noble and learned Lord that every case will be dealt with on its merits against those strict criteria.

Perhaps I may return to the central issue of the debate: that is, the age of consent for homosexuals. The Committee will be aware that the matter was debated at considerable length in another place. The subject matter did not form part of the original Bill, as the Bill is a criminal justice Bill; it is not a sexual offences Bill. As noble Lords will have observed with regard to some of the other amendments in this part of the Bill, once we start on this subject we get into some pretty murky waters. However, at the conclusion of the debate in another place, a substantial majority supported the amendments which now appear as Clause 139 of the Bill. But, of course, it is quite proper for noble Lords to discuss the matter and to reach their own conclusions. Noble Lords have every right to ask another place to reconsider its decision if that is what the Committee wishes to do. The noble Lord, Lord McIntosh, said of his party that there is a free vote. I can tell the Committee that the same applies on this side of the Chamber too.

Perhaps I may make a personal observation, it is only a personal observation. I share the unease which many noble Lords have about the decision of another place. I find it difficult to equate homosexual behaviour with heterosexual behaviour, and to accept the arguments which flow from that. In my view equality is not an issue. My noble friend Lord Skidelsky said that if the age does not drop to 16, the law is discriminatory. My personal view is: quite right too. I remember the late Archbishop Fisher once making the remarkable observation that there is no unreasonable argument that cannot be proved reasonable by reason. I would be concerned about the effect which the amendment for dropping the age to 16 would have on the attitude towards homosexuality.

In a debate in another place, my right honourable friend the Home Secretary said: It is also still unquestionably the case that most parents hope and expect their sons to follow a heterosexual lifestyle and hope that in due course they will build a family life of their own". —[Official Report, Commons, 21/2/94; col. 93.] I believe that my right honourable friend was absolutely right. I was impressed by the robust speech of my noble friend Lady Young. Whatever one's views may be on the age of consent, I admired her robust defence of family life and the trenchant defence of the family as a whole. In my view homosexuality sets a young man apart from the majority and he has to be given time to make up his mind. I personally think that even 18 is too soon. After all, the habits, characteristics and personalities of people are not just caused, as some claim, by heredity, and what is planted in people at birth, important though those are. People are also affected, and considerably affected, by teaching, opinion, example, experience and life in general. I agreed with the noble Lord, Lord Jakobovits. We are all vulnerable at any stage in our lives to many different pressures. One inevitably changes one's mind by one of three things: by what one sees, hears or reads. In so far as we all see, read and hear, we are all vulnerable. I would worry that a decision to reduce the age of consent either to 18 or to 16 will not be in the interests of the social fabric of the young and of our society. However, that is my personal view and it carries no more weight than that.

On the Government's behalf, I must tell the Committee that the Government's view is—I say it without an excess of enthusiasm—that any of the alternatives for the age of homosexual behaviour which have been canvassed (16, 18 or 21) can be justified in terms of the purpose and the extent of the criminal law. That is precisely why there was a free vote in another place. The Committee may also consider it worth bearing in mind that when the matter was considered in another place, the real argument—the noble Earl, Lord Russell, referred to it—lay not so much between 18 and 21 as between 18 and 16. If another place is to think again, which noble Lords are perfectly permitted to ask it to do, there is no certainty that the result would be as straightforward as some people might expect. That is a matter which the Committee might consider worthy of consideration. I put it no higher than that. The whole matter is entirely for individual conscience and individual opinion. That is why I would not wish to persuade the Committee on the Government's behalf in any particular direction.

However, the Committee might find it helpful if I were to advise noble Lords, as I did on the Sunday Trading Bill, on what to do when we vote. I remember endeavouring to do so on that occasion, with I thought a relative degree of clarity over a complicated issue, and my noble and learned friend Lord Hailsham rose to say that I had got it wrong.

Lord Hailsham of Saint Marylebone

I had got it wrong.

Earl Ferrers

It was a disconcerting moment. I hope that my noble and learned friend will refrain from jumping to the same erroneous conclusion this time. Those noble Lords who wish to vote for the age of 16 should vote for Amendment No. 160A and for Clause 139 stand part, as amended, if the amendment is made.

If the amendment is not made, voting for Clause 139 will be the equivalent of voting for the age of 18.

Those noble Lords who wish to vote for the age of 18 should vote against Amendment No. 160A and for Clause 139 to stand part, as it stands. If Clause 139 is changed to make the age 16, voting against the Question that Clause 139 stand part will mean voting for the age of 21.

Those noble Lords who wish a return to the age of 21 should vote against Amendment No. 160A and against the Question that Clause 139 stand part.

I hope that noble Lords have been able to retain that. I have done my best to explain.

Lord Mayhew

I may well have misunderstood the noble Earl, but does he propose to take the Question that Clause 139 stand part before discussing the amendments standing in my name?

Earl Ferrers

Certainly not. The noble Lord, Lord Mayhew, need not become unduly agitated. I simply sought to explain what noble Lords should do with regard to the ages of 16, 18 and 21 when we consider the Question that the clause stand part. Before that issue is considered, of course the noble Lord's amendments will be taken.

Lord McIntosh of Haringey

I start by echoing the Minister's words when he gave his advice as to what the effects of the different votes will be. He described the position entirely accurately and in response to a question from the noble Lord, Lord Mayhew, he confirmed that although we shall vote roughly in the same way as we did on the Sunday Trading Bill, the two votes will not succeed each other immediately. The amendments of the noble Lord, Lord Mayhew, and the noble Earl, Lord Clanwilliam, will have to be taken after the first vote.

It has been a rich and varied debate and I do not think it is any the worse for the fact that so many Members of the Committee have spoken out of instinctive feeling rather than rational argument. I confess that there is an element of instinctive feeling in my own position. I say genuinely that there must be a mixture of the way we feel about these matters, as well as how we reason our way towards a conclusion.

However, I have to say that in the course of the debate I have heard no effective or authoritative answer to the three major points which I made at. the beginning. They led me to the conclusion that the law should not discriminate against homosexual acts in the way that it does and in the way that it would if my amendment were defeated. I have not heard anyone say effectively that the criminalisation of or the retention of criminalisation of homosexual behaviour of those over 18 can be enforced. It is not enforced now and no one has, suggested a way in which it can be enforced in the future.

I have not heard anyone argue effectively against the views of the British Medical Association and the Royal College of Psychiatrists in particular that all the research evidence is that young men are not seduced into homosexual behaviour but their sexuality is largely determined before their first sexual act. Therefore, the arguments about seduction, particularly by older men —and that is certainly not the case—have not really been effectively countered.

Finally, I have not heard any effective answer to the opinion of all those who are concerned with health education, in particular, with HIV and AIDS, that the fight against AIDS and HIV infection is harmed by the criminalisation of homosexual activity for those aged 16 and over. Those who are in need of advice and comfort are unable to come to the agencies and the adults who would be able to give counsel and advice are deterred from doing so because of the fear of being involved in a criminal act.

In all this there must, of course, be an element of what we feel. I have sensed a great deal of disapproval and distaste for homosexual behaviour, whether it is in the form of Gay Pride marches or in the form of activities between consenting adults in private. I plead with the Committee not to allow that disapproval or distaste, which Members may well feel, to affect their views on what the law should say about the actions of adults in private.

The most reverend Primate the Archbishop of York made, as always, a most thoughtful speech. He described heterosexual activity as "normal" and I think that for most of us it is. But that does not mean that homosexual activity is abnormal, it is simply different. It certainly does not mean that it should be condemned in the way that some Members of the Committee—not the most reverend Primate—appear to wish to condemn it.

We have had a debate on the issue of whether the ages should be 16, 18 or 21. I appreciate the views of those who wish to give primacy to the views on a free vote expressed in another place. But having had the debate and having taken into account all the speeches that have been made, I believe that Members of the Committee would wish to vote on all the options. I now propose to ask the opinion of the Committee on Amendment No. 160A.

5.45 p.m.

On Question, Whether the said amendment (No. 160A) shall be agreed to?

Their Lordships divided: Contents, 71; Not-Contents, 245.

Division No.1
CONTENTS
Addington, L.	Harris of Greenwich, L.
Annan, L.	Hilton of Eggardon, B.
Ashley of Stoke, L.	Hollis of Heigham, B.
Avebury, L.	Holme of Cheltenham, L.
Barnett, L.	Hughes, L.
Beaumont of Whitley, L.	Irvine of Lairg, L.
Bonham-Carter, L.	Jay of Paddington, B.
Boston of Faversham, L.	Jeger, B.
Byron, L.	Jenkins of Putney, L.
Carmichael of Kelvingrove, L.	Kennet, L.
Castle of Blackburn, B.	Kilmarnock, L.
Clinton-Davis, L.	Lane of Horsell, L.
Craigavon, V.	Leigh, L.
Darcy (de Knayth), B.	Listowel, E.
David, B.	Llewelyn-Davies of Hastoe, B.
Davies, L.	Lockwood, B.
Desai, L.	Lovell-Davis, L.
Donaldson of Kingsbridge, L.	McIntosh of Haringey, L.
Eatwell, L.	[Teller]
Elis-Thomas, L.	Mallalieu, B.
Ennals, L.	Marsh, L.
Ewing of Kirkford, L.	Molloy, L.
Falkland, V.	Monkswell, L.
Foot, L.	Montagu of Beaulieu, L.
Gilmour of Craigmillar, L.	Morris of Castle Morris, L.
Gould of Potternewton, B.	Morris, L.
Graham of Edmonton, L.	Moyne, L.
Gregson, L.	Peston, L.

Ponsonby of Shulbrede, L.	Skidelsky, L. [Teller.]
Quinton, L.	Slynn of Hadley, L.
Rea, L.	St. John of Fawsley, L.
Renfrew of Kaimsthorn, L.	Tordoff, L.
Richard, L.	Turner of Camden, B.
Rodgers of Quarry Bank, L.	Williams of Elvel, L.
Russell, E.	Williams of Mostyn, L.
Seear, B.	Young of Dartington, L.

NOT-CONTENTS
Aberdare, L.	Dudley, E.
Ackner, L.	Eden of Winton, L.
Addison, V.	Ellenborough, L.
Aldington, L.	Elliott of Morpeth, L.
Alexander of Tunis, E.	Elton, L.
Alexander of Weedon, L.	Ezra, L.
Allenby of Megiddo, V.	Faithfull, B.
Annaly, L.	Fanshawe of Richmond, L.
Archer of Weston-Super-Mare, L.	Ferrers, E.
Arran, E.	Finsberg, L.
Ashbourne, L.	Fitt, L.
Astor of Hever, L.	Flather, B.
Attlee, E.	Foley, L.
Balfour, E.	Forbes, L.
Barber of Tewkesbury, L.	Fraser of Carmyllie, L.
Belhaven and Stenton, L.	Fraser of Kilmorack, L.
Beloff, L.	Gibson, L.
Blatch, B.	Gisborough, L.
Blyth, L.	Gladwyn, L.
Boardman, L.	Glenarthur, L.
Boyd-Carpenter, L.	Goschen, V.
Brabazon of Tara, L.	Grantchester, L.
Bramall, L.	Gray of Contin, L.
Brentford, V.	Gray, L.
Bridgeman, V.	Greenhill of Harrow, L.
Brightman, L.	Greenway, L.
Brigstocke, B.	Grey, E.
Broadbridge, L.	Griffiths of Fforestfach, L.
Brookeborough, V.	Hailsham of Saint Marylebone, L.
Brooks of Tremorfa, L.	Hamilton of Dalzell, L.
Brougham and Vaux, L.	Hanworth, V.
Burnham, L.	Harding of Petherton, L.
Butterworth, L.	Hardinge of Penshurst, L.
Cadman, L.	Harlech, L.
Caldecote, V.	Harmar-Nicholls, L.
Campbell of Alloway, L.	Harmsworth, L.
Campbell of Croy, L.	Harrowby, E.
Carnock, L.	Hayhoe, L.
Chalker of Wallasey, B.	Hayter, L.
Charteris of Amisfield, L.	Henley, L.
Chelmsford, V.	Hesketh, L.
Chesham, L.	Holderness, L.
Clanwilliam, E.	HolmPatrick, L.
Clark of Kempston, L.	Hood, V.
Clifford of Chudleigh, L.	Hooper, B.
Clitheroe, L.	Hothfield, L.
Cockfield, L.	Howe of Aberavon, L.
Coleridge, L.	Howe, E.
Colnbrook, L.	Howell, L.
Courtown, E.	Huntingdon, E.
Craig of Radley, L.	Hylton-Foster, B.
Craigmyle, L.	Inchyra, L.
Cranborne, V.	Ironside, L.
Crawshaw, L.	Jakobovits, L.
Cross, V.	Jeffreys, L.
Cullen of Ashbourne, L.	Johnston of Rockport, L.
Cumberlege, B.	Kimball, L.
Dainton, L.	Kinloss, Ly.
Davidson, V.	Kinnoull, E.
De Freyne, L.	Lauderdale, E.
Dean of Beswick, L.	Lindsey and Abingdon, E.
Dean of Harptree, L.	Liverpool, E.
Derwent, L.	Long, V.
Diamond, L.	Longford, E.
Digby, L.	Lothian, M.
Dixon-Smith, L.	Lucas of Chilworth, L.
Donegall, M.	Lyell, L.
Donoughue, L.	Mackay of Ardbrecknish, L
Dormand of Easington, L.	Mackay of Clashfern, L. [Lord
Downshire, M.	Chancellor]

Macleod of Borve, B.	Saint Oswald, L.
Malmesbury, E.	Salisbury, M.
Mar, C.	Saltoun of Abernethy, Ly.
Marlesford, L.	Savile, L.
Masham of Ilton, B.	Seccombe, B.
Mason of Barnsley, L.	Selborne, E.
Massereene and Ferrard, V.	Shannon, E.
Mayhew, L.	Shaughnessy, L.
McAlpine of West Green, L.	Shepherd, L.
Melville, V.	Sherfield, L.
Merrivale, L.	Simon of Glaisdale, L.
Mersey, V.	Slim, V.
Milverton, L.	Sondes, E.
Monckton of Brenchley, V.	St. Davids, V.
Monson, L.	St. John of Bletso, L.
Moran, L.	Stallard, L.
Mottistone, L.	Stanley of Alderley, L.
Mountevans, L.	Stedman, B.
Mountgarret, V.	Stevens of Ludgate, L.
Mowbray and Stourton, L.	Stewartby, L.
Mulley, L.	Stoddart of Swindon, L.
Munster, E.	Strange, B.
Mutton of Lindisfarne, L.	Strathclyde, L.
Nelson, E.	Strathcona and Mount Royal, L.
Newall, L.	Strathmore and Kinghorne, E.
Nicol, B.	Sudeley, L.
Nolan, L.	Suffolk and Berkshire, E.
Norfolk, D.	Swansea, L.
Northbourne, L.	Swinfen, L.
Northbrook, L.	Tenby, V.
Northesk, E.	Teviot, L.
O'Cathain, B.	Thomas of Gwydir, L.
Oppenheim-Barnes, B.	Torphichen, L.
Orr-Ewing, L. [Teller.]	Trumpington, B.
Oxfuird, V.	Tugendhat, L.
Palmer, L.	Ullswater, V.
Park of Monmouth, B.	Vaux of Harrowden, L.
Pearson of Rannoch, L.	Vivian, L.
Peel, E.	Wakeham, L. [Lord Privy Seal.]
Pender, L.	Waverley, V.
Perry of Southwark, B.	Weatherill, L.
Perth, E.	Westbury, L.
Peyton of Yeovil, L.	Whaddon, L.
Pitt of Hampstead, L.	Wharton, B.
Plummer of St. Marylebone, L.	Wigoder, L.
Porter of Luddenham, L.	Wilberforce, L.
Rankeillour, L.	Windlesham, L.
Renton, L.	Wise, L.
Renwick, L.	Wolfson, L.
Robertson of Oakridge, L.	Wyatt of Weeford, L.
Rodger of Earlsferry, L.	Wynford, L.
Romney, E.	York, Abp.
Sainsbury of Preston Candover, L.	Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

5.55 p.m.

Lord Mayhew moved Amendment No. 161:

Page 113, line 13, at end insert: ("() In subsection (1) of that section, after the word "act" there shall be inserted the words "(other than buggery)".").

The noble Lord said: In moving Amendment No. 161, I shall speak to Amendments Nos. 161ZB, 162, 163 and 164ZA. Clause 139 lowers the age of consent for all homosexual practices. The effect of these amendments is to lower the age for all homosexual practices except buggery.

I was a little confused by the statement of the noble Lord, Lord McIntosh, that the medical profession agreed that there was no health risk in homosexual practices. I think that the noble Lord fails to distinguish one homosexual practice from another. There is in fact a complete consensus among medical professionals and among gay organisations that even with professional advice and the use of condoms, buggery still presents a health risk. In its current literature, the Terrence Higgins Trust, which is a leading pro-gay organisation, states: The main risk of transmitting HIV is through anal intercourse. You can really cut down the risk by using condoms".

It does not say "eliminate" the risk, but "cut down" the risk. The trust then lays down a number of provisos. It lists seven precautions that still need to be taken relating to the nature of the condoms and their method of use. At the same time, the trust recommends nine homosexual practices other than anal intercourse that it declares to be completely safe. To the best of my knowledge, those risk assessments by that expert body are not challenged by anyone —certainly not by any medical authority or gay organisation. It follows, I hold, that everything needs to be done to discourage the practice of anal intercourse.

The Wolfenden Committee, whose recommendations I warmly supported at the time in the other place, considered at length whether the law should discriminate, as these amendments do, between buggery and other homosexual practices. The committee asked itself, for example, whether this particular practice was unnatural, or more unnatural than other homosexual practices. It asked itself—I think more pertinently— whether this particular practice did not play a disproportionate part in increasing prejudice against the gay community. However, as we all know, the Wolfenden Committee did not agree that any discrimination should be made between anal intercourse and any other homosexual practices. But of course, like everybody else, including myself, the Committee knew nothing about AIDS. Had it done so, and had it known that this particular practice could condemn a person to a fatal infectious disease, it must surely have come to a different conclusion.

Sadly, we have to register, though it is hard to believe, that the legalisation of buggery which followed its recommendation made no contribution whatever to the rapid rise in HIV and AIDS which followed it. It is common sense to assume that legalising an action and making it permissible also makes it more acceptable and more readily practised. That is why we sensibly declined to repeal some laws which are quite unenforceable. The law against drug taking in private is not only in practice unenforceable but in fact encourages criminal activities. Yet there is reluctance to repeal that law because we know that it would make drug taking more readily acceptable and practised.

I particularly appreciated the words of the most reverend Primate on that matter. He pointed out that the law is concerned not only with what the police will do and with the fear of detection and punishment. He said that the law: defines a set of expectations … [and] changing the law changes the expectations".

The noble Lord, Lord Jakobovits, said the same. He said that the law was not just about detection and punishment but that the law set standards of value. I am sure that that is an important point.

Therefore, so far as concerns the particular law that we are discussing, even though it may be unenforceable, it acts as an additional warning and discouragement. It is a benchmark: thus far and no further. It is a benchmark for young gay men and also for their teachers, for parents and for ourselves as legislators.

If it is unamended, Clause 139 will remove that benchmark. It lumps together all homosexual practices. It legitimises unsafe sex. I cannot believe that that is the message that this Chamber means to give: legitimise unsafe sex for 18 to 21 year-olds.

Anal intercourse is by no means the most common homosexual practice. Our best studies suggest that fewer than half of gay men practise it regularly and 8 per cent. never practise it at all. Since they can see that it is dangerous, gay organisations themselves ought openly and frankly to campaign against it. However, as it is, we should resist their campaign to legalise it. I invite the Committee to do that by supporting these amendments.

6 p.m.

Lord Annan

When I saw this amendment I was reminded of the immortal remark of Ernest Bevin: When you open that Pandora box, you will find it full of Trojan horses". This is a very difficult amendment to support. It seems to me that it would set an extraordinary precedent. If acts which lead to disease and death are made criminal, then the first and most obvious result is to make smoking a criminal offence. Far more people die from coronary thrombosis and lung cancer which has been brought on by smoking than from AIDS.

The proposers of the amendment say that their motive is to protect the community from AIDS. But is it not a fact that the HIV virus can be transmitted by what is called an exchange of bodily fluids? If buggery is to be made criminal on medical grounds, then so also must fellatio and cunnilingus. And why stop there? Should not kissing be made a criminal offence?

But the main reason for rejecting the amendment is that it is unenforceable. If anyone of whatever age commits buggery in public, he is guilty of an offence. So the amendment must be aimed at those under 21 who commit the act in private. How is that to be enforced? The only people who can enforce it are the police. Have the proposers of the amendment considered to what that could lead?

Let us suppose that the police know that two young men share a flat and that they are supposed to be homosexual. The police would have the right to force entry to the flat on the suspicion that the two men were engaged in anal intercourse. Those two men could then be forced to get up in the middle of the night and dress and be taken to the police station. There they could be forced to submit to an examination by a police surgeon to see whether either or both of them had semen or smegma in the rectum. No one should suppose that that is beyond the bounds of possibility.

Some years ago a young and most promising Member of another place visited a club. In that club were a man and a woman who were police officers out of uniform. The Member of the other place was accused by the male police officer of making an indecent proposal and gesture to him and the woman police officer corroborated the offence. I am glad to say that, having heard the evidence, the jury threw out the case. But, it may be asked: what were those two police officers doing on private premises? The political career of the person concerned has been blighted to this day.

I do not want to suggest that that is typical of police behaviour. But there will always be cases of an officer who is overzealous or violently prejudiced and who oversteps the bounds of sensible policing. If we make this act a crime, it will positively encourage some inexperienced or obsessed officer to take such a step.

I do not want to invade the territory of the noble Baroness, Lady Mallalieu, except to say that the spirit of her amendment pleases me mightily. She speaks with vast experience of what actually goes on in court and of the proceedings before a case is heard.

What goes on in the bedroom between consenting adults should be a private matter into which the law does not peer. When urged by the Puritans to make adherence to the Act of Uniformity stiffer, Queen Elizabeth I said that she did not want to make windows into men's souls. We in our turn should not pry into the private lives of those who have reached the age of majority.

I recollect that, at the time of the late Lord Arran's Bill, Lord Dilhorne taunted the Archbishop of Canterbury by asking him whether, since he had supported Lord Arran's Bill and was in favour of legalising homosexual conduct between consulting adults, he approved of the act of buggery. The Archbishop of Canterbury did not deign to reply. But Lady Wootton of Abinger did. She turned to Lord Dilhorne and said: I ask myself: what are the opponents of this Bill afraid of? They cannot be afraid that these disgusting practices will be thrown upon their attention, because these acts are legalised only if they are performed in private … I can only suppose that the opponents of this Bill will be afraid that their imagination will be tormented by visions of what will be going on elsewhere. Surely, if that is so, that is their own private misfortune, and no reason for imposing their personal standards of taste and morality on the minority of their fellow citizens who can find sexual satisfaction only in relations with their own sex".—[Official Report, 13/7/67; cols. 1316-1317.]

Earl Russell

I intended to ask my noble friend Lord Mayhew how he supposed his amendment should be enforced. He stole my thunder and I am glad to let it go. He said that if the amendment became law it could not be enforced. He is telling us therefore that he is proposing to put on the statute book a law which could be broken with impunity. I call that bringing the law into disrepute.

Lord McIntosh of Haringey

The amendment is much worse than that. It is not just that the law cannot be enforced; it is that the enactment of a law such as that proposed by the amendment would deny young people who need help—people aged 18 to 21—the advice and counselling which they could obtain from organisations available to give it. Unenforceability is the least of the defects of the amendment.

6.15 p.m.

The Earl of Clanwilliam

As no one else is rising to speak perhaps I can take my turn to support the noble Lord, Lord Mayhew, in his amendment. I shall come to the question of unenforceability in a moment. It is obvious that at the moment there is no enforceable law. I support the amendment in the manner of reform of the opinion of the other place. It is not a measure of rejection of what the Members of the other place proposed; it is a measure to protect our young from disease. That is the only way in which the amendment should be judged.

The noble Lord, Lord McIntosh of Haringey, pointed out that the subject of homosexuality had been known through the ages. Indeed it has. Different sexuality has been known throughout civilisations but it is a fact that rampant homosexuality was the forerunner of the decline of all civilisations which endorsed it.

My object in speaking is simply to make illegal the act of anal penetration and to allow both sexes to use their sexuality freely in any other way within the terms of Clause 139. The time was, even when the 1967 Act was passed—10 years after the Wolfenden Report—and the gay sub-culture began to develop in the 1970s, when the problem of AIDS was unknown. It did not arise until 1982; so the problem is only 12 years old. It was at that time of no major importance to the health of the nation and, because AIDS was not a danger, the age of consent could have been reduced.

That is no longer so. It is now established beyond doubt—as the noble Lord, Lord Renton, stated in an earlier debate —that 75 per cent, of deaths from AIDS result from homosexual activities. Indeed, the Eurostat estimate in respect of deaths by HIV infection is that 54 per cent. of Europeans were homosexual while the figure for the UK was 81 per cent. That figure comes from the SIGMA report. I should mention that the SIGMA organisation is funded by the Medical Research Council as an independent statutory body. It published a report in 1992 which examined in great detail and with great sympathy the. problem of homosexuals and how they could be helped and consulted. After quoting the report I received an extremely angry letter from the director who asked me, among other things, to point out that SIGMA objects most strongly to its money being used in this, "despicable, demeaning and utterly deplorable" way. Members of SIGMA are scientists and doctors. They are there to propose ideas; it is Parliament which decides the law. I readily accede to their request to be mentioned.

An awful lot of codswallop has been talked about discrimination with misleading theorising about young men's rights compared to the rights of young women. It is a modern fallacy of the politically correct world that men and boys or women and girls are comparable. Momentary reflection will explode that ridiculous theory. At Second Reading I pointed to the disparity in that a girl of 12 or legally 16 can conceive and bear a child and nurse it; but a father of the same age is incapable of performing the duties of parenthood. On the other hand, if we are simply discussing equal rights to promiscuity, we can hardly suggest that we are setting any sort of example or performing our duty as a reforming House.

Boys and young men will be experimenting and no doubt practising their sexuality in their formative years. It is then that they need guidance and advice from parents, teachers, and indeed the Church. I am glad that the most reverend Primate the Archbishop of York pointed out that need. It is especially important in today's open society where the flood of information and the welter of semi-professional theories from all sides compound confusion in the minds of young men.

I commend the amendment to the Committee. It will provide parents and children alike with a benchmark which simply says, "Whatever you do, don't get involved in buggery. It is dangerous, unhealthy and illegal". That is a simple, comprehensible and urgent instruction which is easily expressed and needs only the sanction of law to support it. It may be that the law is unenforceable, as my noble friend Lord Skidelsky and the noble Lord, Lord Annan, stated. But I suggest that we have an opportunity here where the family can make the law. The family can make the statement and pre-empt the law.

This simple, comprehensive and urgent instruction has the additional advantage that it will save those children from the scourge of AIDS. It is true that there may be a suggestion of the "nanny state" entering the argument. However, the 1992 SIGMA report makes illuminating reading. It is not often that I quote the Medical Research Council. When I do I am usually wearing my alternative medicine hat —we do not appear to be at one in our views on those matters either. However, its statements are relevant to the cause. The report states that the average age for first experience of anal intercourse is 20.9 years. The age of consent is already 21 years and all we are proposing is that that should be true in law. It is the promiscuous predatory male who is the greatest danger to our young. Again I quote the SIGMA report on the danger of AIDS-related infections in relation to anal intercourse It states: All the men who tested antibody positive had engaged in anal intercourse previously and no one who had not done so tested positive". That is clear proof. Incidentally, the statement perhaps belies what I consider to be the most potent argument against the amendment; that is, that the disease can be spread equally easily through oral sex. The noble Lord, Lord Annan, asked about all those other methods whereby HIV can be spread via body fluids. That is the answer to his question. It is a clear statement from the SIGMA report that no other form of sexual intercourse is responsible for HIV infection. I find the SIGMA report conclusive, contrary to the suggestion of the noble Lord, Lord Annan, and I look for the agreement of the Committee.

The amendment frees both sexes from discrimination in that they will be able to enjoy—or abuse, according to one's view—their sexuality in any manner except buggery, which has been shown by many Members of the Committee, as well as SIGMA, to be a danger to the health of the nation as well as to our youth.

As regards freedom, this amendment will in some sense at least increase that precious sense of freedom in one's daily life. It may be that the press will find greater difficulty, as no doubt the police will, in finding people in their bedrooms, as the noble Lord suggested. Our forebears in their wisdom were right. Clause 63 of the 1861 Act states that, to prove carnal Knowledge, it shall not be necessary to prove the actual Emission of Seed … but… shall be deemed complete upon Proof of Penetration only". The original idea was to prevent anal penetration and that is the object of this amendment. Greater freedom will ensue if only because the proof that is required is extremely difficult to obtain, as has been said. And if that is an argument against this amendment, then it is equally difficult to prove an offence under the present circumstances. Certainly unenforceable rules make bad law but there will be less law to enforce than with the existing law and perhaps an opportunity for greater self-expression, if I may put it like that.

Finally, I have not referred to the Church's position but the right reverend Prelate has clearly made that clear. Perhaps he will be able to support the amendment.

I cannot end without some personal statement. I have many friends with a different sexual orientation. Among them are men of great taste and talent who have great achievements—and, as has already been said, many such people served with great valour in the last war—of which they are justly proud and who lead impeccable private lives. I hope that if they read this speech they will continue to regard me as a friend, for as much as I have valued it in the past I shall continue to value their friendship in the future.

The Earl of Dudley

If this amendment were incorporated into the law the only beneficiaries would be those who could command the price of silence. I am sure that no noble Lord in his right mind would wish for that.

Lord Mottistone

I greatly admire my noble friend Lord Clanwilliam and the noble Lord, Lord Mayhew, for putting forward the amendment because it seems to me that not enough noble Lords realise the great threat to health of AIDS. That is important and very relevant to what we are talking about. I am not saying that this is necessarily the right place to have this discussion but there is an important point to be made.

I was talking to a young man from the United States who is dealing with the problem of trying to control AIDS in the United States. He said that a thousand people a month in New York alone are getting AIDS and in due course are dying. It is too dangerous to allow this ailment to spread wider in this country. One of the reasons why we have to try to restrain these unnatural practices—and they are unnatural practices—is that we do not want our country to have a whole lot of people dying from AIDS at the rate they die in the United States. Whatever noble Lords may think about this amendment, they should go away from this debate saying to themselves, "AIDS must be stopped".

Lord Eatwell

I wish to oppose this amendment and to second the words with which the noble Lord, Lord Mottistone, finished his contribution. I am the chairman of Crusade, which is a charity devoted both to the education and care of people suffering from HIV and AIDS. One of the things we should notice in considering this amendment is the fact that everyone who is involved in looking after people with HIV and AIDS is opposed to the amendment. The people who are involved in caring for sufferers oppose the amendment. We have been told by the proposers that the amendment is designed to protect people against the spread of HIV infection. Yet we are also told by the proposers that they recognise that the provision would be unenforceable. How is something which is unenforceable supposed to protect anyone?

Secondly, we have been told that outlawing anal intercourse would be a way of directly fighting AIDS, as if that were the only way AIDS could be transmitted. If that is so, how do the proposers of the amendment account for the fact that in this country AIDS infection is growing the fastest among women and children?

The Earl of Clanwilliam

I can tell the noble Lord exactly how it happens among women. A bisexual man becomes infected through a homosexual activity. He then has intercourse with a woman. He gives her AIDS and she bears a child who is born with AIDS.

Lord Eatwell

I am glad that the noble Earl has confirmed that he does not believe that anal intercourse is the sole means of transmitting AIDS.

Thirdly, and most importantly, all the organisations involved in fighting AIDS are opposed to the amendment because it would damage the educational work which is absolutely central to the fight against AIDS. The Government are to be congratulated on the educational campaign which they ran in the mid-1980s to attack AIDS. As a result, undoubtedly, of that successful campaign the rates of infection in this country are dramatically less than the rates of infection in France, Spain and Italy, where the same kind of effort was not put into education. It is vital that we do not create a situation in which educational activity could be seen as aiding and abetting a crime. This amendment would, I can assure the Committee as someone actively involved in the fight against AIDS, do great damage to that fight.

Earl Attlee

The noble Lord, Lord Mottistone, referred to the situation in the United States. Can he tell the Committee what is the law in the United States?

Lord Mottistone

No, because I did not ask my friend what the law is.

Earl Ferrers

The noble Lord's amendment offers a significantly different approach in this difficult area and I have no doubt that many noble Lords are in great sympathy with a great deal of what is proposed. However, these amendments are not quite as simple as they appear. The Government's principal concern is that there does not appear to be any good enough reason to differentiate between buggery and other homosexual acts so far as concerns the age of consent.

We are all horrified and alarmed by the spread of AIDS and we should do everything we can to prevent that. But in the Government's view the age of consent for homosexuals is difficult to justify on AIDS grounds. We do not think that criminalising consensual sexual activity between adults can be defended simply because it may reduce the risks which people choose to run when they engage in that kind of activity. There would be little dispute about the fact that buggery carries a considerably higher risk of infection than do some other forms of sexual activity, but that fact alone is not a good enough reason to warrant what is inescapably an intrusion into a person's privacy and freedom. If it were, that would be an argument for criminalising buggery at any age. Much as though many of your Lordships might consider that desirable, I do not think it is a practical proposition.

We do not forbid people from travelling to parts of the world where AIDS is common throughout the heterosexual population and where they can contract the disease by heterosexual activity with some prostitute or other infected person and then, of course, risk infecting someone else back in this country. The fact is that people take risks with their own health and with that of others. Undesirable though that may be, it is a simple fact of life with which we have to deal in a practical way. It would be hard to see what a distinction between buggery and other kinds of sexual activity would achieve. A number of people have said that it would be a difficult law to enforce and that that would be a sound reason for not incorporating it into the law of the land.

If we are interested in deterring young men from homosexuality, we cannot seriously contemplate a three-year period when a young man who can legally engage in homosexual sex of a variety of different kinds, will nevertheless be expected to stop short of buggery, but that in three years' time it will be all right. I do not believe that is a realistic proposition. The law on homosexuality infringes the privacy of the individual. There is nothing inherently wrong in that; but we allow the law to impose this restriction because of society's disapproval of homosexuality in general and all which that implies for family life and the development of young men. The age at which young men should be free to pursue whatever homosexual preference they have should be a single age regardless of what the act in question actually is.

The age of consent for homosexual acts has been a matter for a free vote both in another place and in your Lordships' Chamber today. I am bound to tell the Committee that the Government consider that these amendments are flawed in principle. While we would not seek to impose our views on your Lordships, the Government as a whole would find it difficult to accept them.

6.30 p.m.

Lord Mayhew

I am grateful to those who have contributed to the debate. I correct my noble friend Lord Russell and the noble Lord, Lord Annan, who accused us of putting a provision on the statute book criminalising something. The purpose of this amend-ment and its effect would not be to increase the intervention of the law, and it would not lead to criminalising anything. It is to draw a line at not decriminalising buggery. That is the point.

I am very surprised by the reaction of the Committee. I am very surprised that it should be thought right to make buggery more acceptable. That is what Clause 139 does. To that extent, it makes buggery more readily practised. I can say without exaggeration that in the battle against AIDS this clause is on the wrong side. As I say, I am surprised at the reaction of the Chamber. I correct my noble friend and the noble Lord, Lord Annan. We are not criminalising, but refusing to decriminalise buggery. At the same time: we are decriminalising safe sex. That is the effect of the amendment. It is to decriminalise safe sex but to keep the criminalisation of unsafe sex.

I agree that this is a new idea. I am hopeful that some day that view will prevail. I am disappointed at the response of the Government. I, and I believe a number of noble Lords will continue to argue that this clause needs amending. But for the moment, and without prejudicing our rights on any future occasion, I do not propose to call a Division.

Amendment, by leave, withdrawn.

[Amendments Nos. 161ZA, 161ZB, 161A, 162, 162A, 163B, 163 and 163A not moved.]

[Amendment No. 164 had been withdrawn from the Marshalled List.]

[Amendments Nos. 164ZA and 164A not moved.]

On Question, Whether Clause 139 shall stand part of the Bill?

Earl Ferrers

I do not want to discuss the merits of this case because we have done so already. However, it might be helpful to the Committee if I offer some brief guidance. The fact is that as Amendment No. 160A, which was going to drop the age of consent from 18 to 16, was not agreed to, those Peers who wish the age to remain at 18 should vote that Clause 139 stands part of the Bill, and that those who wish it to go back to 21 as it was before, should vote that Clause 139 does not stand part of the Bill.

6.36 p.m.

On Question, Whether Clause 139 shall stand part of the Bill?

Their Lordships divided: Contents, 176; Not-Contents, 113.

Division No.2
CONTENTS
Ackner, L.	Clark of Kempston, L.
Addington, L.	Clinton-Davis, L
Addison, V.	Colwyn, L.
Alexander of Tunis, E.	Cranborne, V.
Alexander of Weedon, L.	Cumberlege, B.
Annan, L.	Darcy (de Knayth), B
Archer of Weston-Super-Mare, L.	David, B.
Arran, E,	Davies, L.
Ashley of Stoke, L.	Demon of Wakefield, B.
Astor of Hever, L.	Desai, L.
Astor, V.	Digby, L.
Attlee, E.	Dixon-Smith, L.
Balfour, E.	Donoughue, L.
Barnett, L.	Dormand of Easington, L.
Beaumont of Whitley, L.	Downshire, M.
Blackstone, B.	Dudley, E.
Blyth, L.	Eatwell, L.
Bonham-Carter, L.	Eden of Winton, L.
Bridgeman, V.	Elis-Thomas, L.
Brigstocke, B.	Ennals, L.
Broadbridge, L.	Ewing of Kirkford, L.
Byron, L.	Ezra, L.
Cadman, L.	Faithfull, B.
Carlisle of Bucklow, L.	Falkland, V. [Teller]
Carmichael of Kelvingrove, L.	Finsberg, L.
Carter, L.	Flather, B.
Castle of Blackburn, B.	Fraser of Carmyllie, L.
Chesham, L.	Goschen, V.

Gould of Potternewton, B.	Montagu of Beaulieu, L.
Graham of Edmonton, L.	Morris of Castle Morris, L.
Gray of Contin, L.	Moyne, L.
Greene of Harrow Weald, L.	Nelson, E.
Gregson, L.	Nicol, B.
Grey, E.	Orkney, E.
Hailsham of Saint Marylebone, L.	Palmer, L.
Harding of Petherton, L.	Park of Monmouth, B.
Hardinge, V.	Peel, E.
Harlech, L.	Pender, L.
Harmar-Nicholls, L.	Perry of Southwark, B.
Harris of Greenwich, L.	Peston, L.
Harrowby, B.	Ponsonby of Shulbrede, L.
Haskel, L.	Portsmouth, Bp.
Hayhoe, L.	Rea, L.
Henley, L.	Redesdale, L.
Hesketh, L.	Rees, L.
Hilton of Eggardon, B.	Renfrew of Kaimsthorn, L.
Holderness, L.	Renwick, L.
Hollick, L.	Richard, L.
Hollis of Heigham, B.	Rodger of Earlsferry, L.
Holme of Cheltenham, L.	Rodgers of Quarry Bank, L.
HolmPatrick, L.	Rodney, L.
Hood, V.	Russell, E.
Hothfield, L.	Seear, B.
Howe, E.	Selborne, E.
Hughes, L.	Selsdon, L.
Huntingdon, E.	Serota, B.
Inchyra, L.	Shepherd, L.
Jay of Paddington, B. [Teller.]	Sherfield, L.
Jeger, B.	Simon of Glaisdale, L.
Jenkins of Putney, L.	Skidelsky, L.
Kilmarnock, L.	Slynn of Hadley, L.
Lane of Horsell, L.	St. Davids, V.
Leigh, L.	St. John of Fawsley, L.
Lindsey and Abingdon, E.	Stedman, B.
Listowel, E.	Stoddart of Swindon, L.
Llewelyn-Davies of Hastoe, B.	Strathclyde, L.
Lockwood, B.	Strathmore and Kinghorne, E.
Long, V.	Swansea, L.
Lovell-Davis, L.	Teviot, L.
Lucas of Chilworth, L.	Thomas of Gwydir, L.
Lucas, L.	Thurlow, L.
Lyell, L.	Tordoff, L.
Mackay of Clashfern, L.[Lord	Tugendhat, L.
Chancellor.]	Turner of Camden, B.
Mackie of Benshie, L.	Ullswater, V.
Macleod of Borve, B.	Wade of Chorlton, L.
Mallalieu, B.	Wakeham, L. [Lord Privy Seal.]
Mancroft, L.	Weatherill, L.
Marsh, L.	Wharton, B.
Masham of Ilton, B.	White, B.
Mason of Barnsley, L.	Wigoder, L.
McIntosh of Haringey, L.	Wilberforce, L.
Melville, V.	Williams of Elvel, L.
Merlyn-Rees, L.	Williams of Mostyn, L.
Merrivale, L.	Windlesham, L.
Molloy, L.	Wynford, L.
Monckton of Brenchley, V.	York, Abp.
Monkswell, L.	Young of Dartington, L.
Monson, L.

NOT-CONTENTS
Aberdare, L.	Caldecote, V.
Aldington, L.	Carnock, L.
Allenby of Megiddo, V.	Clifford of Chudleigh, L.
Annaly, L.	Clitheroe, L.
Ashbourne, L.	Cockfield, L.
Barber of Tewkesbury, L.	Coleridge, L.
Belhaven and Stenton, L.	Courtown, E.
Beloff, L.	Craig of Radley, L.
Blatch, B.	Craigmyle, L.
Boardman, L.	Crawshaw, L.
Boyd-Carpenter, L.	Cross, V.
Brabazon of Tara, L.	Dean of Harptree, L.
Brentford, V.	Diamond, L.
Brooks of Tremorfa, L.	Donegall, M.
Brougham and Vaux, L.	Eccles of Moulton, B.
Burnham, L.	Ellenborough, L.
Butterworth, L.	Fanshawe of Richmond, L.

Ferrers, E.	Nolan, L.
Forbes, L.	Norfolk, D.
Gilmour of Craigmillar, L.	Northesk, E.
Gisborough, L.	O'Cathain, B.
Gladwyn, L.	Oppenheim-Barnes, B.
Glenarthur, L.	Orr-Ewing, L. [Teller.]
Grantchester, L.	Pearson of Rannoch, L.
Gray, L.	Perth, E.
Greenway, L.	Peyton of Yeovil, L.
Griffiths of Fforestfach, L.	Plummer of St. Marylebone, L.
Hamilton of Dalzell, L.	Reading, M.
Hardinge of Penshurst, L.	Renton, L.
Hylton-Foster, B.	Robertson of Oakridge, L.
Ironside, L.	Romney, E.
Jakobovits, L.	Saint Oswald, L.
Jeffreys, L.	Salisbury, M.
Johnston of Rockport, L.	Saltoun of Abernethy, Ly.
Kimball, L.	Savile, L.
Kinloss, Ly.	Seccombe, B.
Lauderdale, E.	Shannon, E.
Liverpool, E.	Sondes, E.
Longford, E.	Stanley of Alderley, L.
Lothian, M.	Stevens of Ludgate, L.
Mackay of Ardbrecknish, L.	Stewartby, L.
Malmesbury, E.	Strange, B.
Marlesford, L.	Swinfen, L.
Massereene and Ferrard, V.	Tebbit, L.
Mayhew, L.	Tenby, V.
McAlpine of West Green, L.	Torphichen, L.
Mersey, V.	Trumpington, B.
Milverton, L.	Vaux of Harrowden, L.
Mishcon, L.	Vivian, L.
Moran, L.	Waverley, V.
Mottistone, L.	Westbury, L.
Mountevans, L.	Whaddon, L.
Mountgarret, V.	Wise, L.
Mowbray and Stourton, L.	Wolfson, L.
Munster, E.	Wyatt of Weeford, L.
Murton of Lindisfarne, L.	Young, B. [Teller]
Newall, L.

Clause 139 agreed to.

6.48 p.m.

Lord Ponsonby of Shulbrede moved Amendment No. 164B:

After Clause 139, insert the following new clause:

("Revised punishment for gross indecency

.—(1) Section 3(2) of the Sexual Offences Act 1967 (revised punishment for gross indecency) is omitted. (2) This section shall come into force on the date this Act is passed.").

The noble Lord said: In speaking to Amendment No. 164B, I should like to speak to several other amendments which are grouped with it. These are: 164C, 164CD, 175DA to 175DB, 178ZZA, 178ZA and 178ZCC to 178ZE—

Lord Renton

Would the noble Lord allow me to intervene? We have not heard one single word that he has said so far.

Lord Ponsonby of Shulbrede

I am quite happy to repeat the grouping as briefly as possible. Shall I just proceed? In rising to move the first of the amendments standing in my name, I should like to assure your Lordships that I do not mean to detain you long tonight. I have three matters to raise, of which Amendment No. 164B is the briefest. I put them forward for your consideration, looking for agreement from all sides and particularly from the Government.

Given the adjustments to the law relating to homosexuality embodied in Clause 139, these problems and something like these solutions merit a place in the Bill. I am also mindful of the Home Secretary's warning in another place—that this Bill should not become a general sexual offences Bill. The three matters that I wish to raise are broadly consequential on Clause 139. They provide a coherent package designed to deal with the offences which, in the real world, are likely to be committed under the law as it will stand when the Bill is enacted.

Amendment No. 164B is quite straightforward. The consequential amendment is No. 178ZD. It amends from five years' imprisonment to two years' imprisonment the penalty for gross indecency where the offence is committed with someone under the age of consent. It does so simply by repealing the revised penalty embodied in Section 3(2) of the Sexual Offences Act 1967, which covers offences committed between those over and under the age of 21. Under this amendment, there will not be a special category but the penalty originally set by the Sexual Offences Act 1956 will be restored. I suggest that the amendment is not merely broadly consequential on Clause 139 but that it is strictly so. Since the penalty embodied in the 1967 Act was based on an age of consent of 21, Section 3(2) is no longer appropriate. It covers an age group of 18 to 21 year-olds who are no longer criminalised. Yet if a man over 21 was held to have committed a consensual offence with one under 21 but over 18, for instance, because they breached the privacy provisions of Section 1(1) of the 1967 Act the older man would technically be liable to a higher sentence than the younger. That cannot be right.

To retain a maximum penalty of five years for offences relating to those just under the age of consent is, in any case, unjustifiably harsh. However, some Members of the Committee may, at first blush, wish to retain the higher penalty in relation to offences committed with 16 and 17 year-olds in order to signal the serious view that the law takes of those who have sex under the age of consent. I too take a serious view of that, but a two-year custodial sentence cannot be held to be a negligible penalty. I believe that an appropriate parallel is the penalty for unlawful sexual intercourse with a girl between the ages of 13 and 16.

Moreover, I remind the Committee that gross indecency is a consensual offence and that a 16 or 17 year-old can be held by the courts to have consented even though he is below the age of consent. If he has not consented, I suggest that the much more serious charge of indecent assault can be brought and on conviction that carries a maximum sentence of 10 years. Equally, in the case of an offence committed with a boy under the age of 16, a charge of indecent assault can be brought. In such an instance, Section 15(2) of the Sexual Offences Act 1956 provides that the boy cannot in law consent and so there can be no argument about that case. In short, the amendment is not soft on homosexuals; it merely seeks to tidy up the law in this instance.

Amendment No. 164C is designed to protect those just under the age of consent, as girls under the age of consent are protected in the event that they have sex with anyone. As the law stands, if two men have sex and one is under the age prescribed in the Sexual Offences Act 1967 both parties are guilty of an offence under the Sexual Offences Act 1956. That includes the younger under-age party. Under that same 1956 Act, if a. man and a girl under the age of consent have sex, only the man is guilty of an offence. The girl is treated, in my view, correctly as an innocent party; as a victim. My amendment would make that the position in relation to homosexual sex.

In the debate in another place, great stress was rightly laid on the need to protect the young. Indeed, that was the theme of our debate earlier today. The Home Secretary himself stated that we need to protect the vulnerable young men from activities which their lack of maturity might cause them to regret. Yet we do so by criminalising them. We plead their lack of maturity but if they make a mistake, their lack of maturity does not save them from criminality.

What effect does that have? I suggest that one effect is this: if there is an instance where a young man has been influenced by an older man to consent to have a sexual relationship with him, because that young man has thereby committed an offence he will be unwilling to seek the protection of the law as that will leave him open to prosecution.

It may be helpful if I briefly go through the amendment to explain its effect. It must be read in the context of Section 1(1) of the Sexual Offences Act 1967. It provides that, a homosexual act in private shall not be an offence provided that the parties consent thereto and have attained the age of twenty-one years". It is that provision which lays down what we have come to call "the homosexual age of consent". That provision is amended by Clause 139 to make 18 the relevant age.

In the amendment standing in my name, the provisions on the age of consent are, in effect, codified and refined as follows: paragraph (a) re-enacts the basic principle that 18 should be the age of consent; paragraph (b) provides in the alternative that a homosexual act shall not be an offence if both parties are over the age of 16 and close contemporaries; paragraph (c) provides that, in any event, anyone under the age of 18 but over the age of 16 does not commit an offence if he has consenting sex with an older man.

I freely admit that this amendment does not. cover all hard cases. Its scope is narrow. It acts only on the age group of those over the age of 16 and under the age of consent. It may surprise Members of the Committee to know that under the 1967 Act boys under the age of 16 who may have homosexual sex are technically criminals. The amendment will leave them so. This is not an artificial question; it is certainly a most disturbing question.

Periodically we are told that hard cases make bad law. That is why I have excluded from the amendment boys under the age of 16.I am acting on the generality of cases. It is agreed that research—research funded by the Department of Health-—shows that the average age of young homosexual men at the time of their first sexual experience is about 16, even granted the present age of consent. Therefore, 16 appears to be a watershed, as of course it is for heterosexuals.

I do not propose a free-for-all for those under age. For instance, a 19 year-old who had a sexual relationship with a 16 year-old will still be committing an offence that a 16 year-old will not. In short, the amendment seeks to structure the law in what I believe to be a sensible fashion. I commend it to the Committee.

The third amendment standing in my name relates to male rape. It is Amendment No. 164CD and the consequential amendments are Nos. 175DAA and 178ZZA. The purpose of these amendments is to assimilate the offence of buggery without consent, which is usually referred to as male rape, with the offence of rape. It is to provide for the increased penalty of life imprisonment and to make the operation of the law in relation to the victim and to the accused the same as in the case of heterosexual rape. As part of this, and since under the existing law the offence of rape applies only to vaginal intercourse with a woman without her consent, the new clause will extend the definition of rape to include non-consensual buggery with a woman as well as with a man. All forms of non-consensual intercourse will therefore be treated in the same way and be subject to the same defences and penalties, which is a maximum penalty of life imprisonment.

It may be helpful if I go through the clause in some detail. Subsection (1) (a) amends Section 1(1) of the Sexual Offences Act 1956, which creates the offence of rape, to make its language appropriate for both men and women. Paragraph (b) amends the penalties for buggery and attempted buggery contained in the 1956 Act since under this amendment most cases of non-consensual buggery, whether with a woman or a man, will be charged with rape. A charge of buggery would be appropriate only in less serious cases; for instance, where there was consent. It is therefore also appropriate that its penalty be reduced to reflect this.

Subsection (2) amends the Sexual Offences (Amendment) Act 1976. That Act defines rape and provides certain defences as well as providing for the anonymity of complainants in rape cases and certain procedural matters. Paragraph (a) changes the definition of rape to include anal intercourse without consent with a woman or a man. Paragraphs (b) to (d) make consequential changes to the 1976 Act to reflect the revised definition of rape. Those changes do not alter the substance of the provision as amended but ensure only that they apply also to the new definition of rape.

Subsection (3) provides that the new clause and associated repeal in Schedule 11 should come into force on the date on which the Bill receives Royal Assent. The repeal referred to is of Section 3(1) of the Sexual Offences Act 1967 which introduced new penalties for buggery between men. That section would be superseded by the amendments made by Section 1(3) of the new clause.

The idea of male rape may well be unthinkable to many of your Lordships, as it is to me. But it has become clear from newspapers that it does happen. Indeed, the Criminal Law Revision Committee recommended as long ago as 1984 that the problem should be dealt with by increasing the penalty for buggery without consent to life imprisonment. That recommendation was never implemented.

The difference between that recommendation and the reform which I now propose is that the amendment would achieve the same objective by changing the definition of rape rather than increasing the penalty for buggery. In my view that has the advantage that the privacy provisions designed to protect the identity of rape victims would extend to the victims of this offence, both men and women. At present the provisions apply only in rape cases and that is almost certainly a factor in the under-reporting of that offence.

I must point out to the Committee that male rape should not be regarded as a homosexual offence. There are several extremely eminent reports which conclude that many of the men who commit that type of rape are heterosexuals. It is a disturbing fact that many of those who abuse boys are also heterosexuals. That offence can be seen as part of a larger pattern of violent attacks on members of the homosexual population.

Members of the Committee may be aware that a similar amendment was debated in another place during the passage of the Bill. At that time, it attracted all-party support. On that occasion the Government's attitude was that it was too important a problem to be embarked upon at that stage of the Bill. I hope that the Committee will feel that, to the contrary, this is such an important problem that we should use this occasion to embark upon and deal with the issue in this Bill.

I should point out that there is a certain overlap between the intention of this amendment and Amendment No. 164CA, which will be debated later, but I do not believe that there is any conflict. I beg to move.

7 p.m.

Earl Ferrers

The noble Lord, Lord Ponsonby, referred to a number of different issues while dealing with the group of amendments and I shall try to take them in the same order.

First, Amendment No. 164B, which is the first amendment to which the noble Lord referred, might appear to be a logical consequence of a reduction in the age of consent for homosexuals. Certainly, Section 3(2) of the Sexual Offences Act 1967 has a narrower application if the age of consent does fall to 18. But I would argue that it is not wholly redundant. Where the younger man is aged between 16 and 18, and the older man is over 21, if may be appropriate still to contemplate the higher penalty, even though there has been consent.

In any event, consent is not the only issue at stake. Consensual acts, which are performed in public, will continue to be illegal if they are grossly indecent, regardless of the age of the participants. The higher penalty reflects an anxiety about the particular risk that younger men may be unduly influenced by older men, and the greater expectation on older men that they should act responsibly. I do not think—and I say this with regard to all the noble Lord's amendments—that this is the time to consider embarking piecemeal on those very complicated matters.

I turn now to Amendment No. 164C, and to Amendment No. 178ZE, which is associated with it. The amendment goes a good deal of the way to providing an age of consent for homosexuals of 16. The Government have not sought either to support or to oppose such a proposal. Nevertheless, I should point out that, in the Government's view, this amendment comes a good deal closer to the 16 option than it does to the 18 one. In effect, it would mean that no one aged between 16 and 18 could ever be liable to prosecution for a consensual homosexual act unless it were performed in public. What signals that sends to a 17 year-old is something which your Lordships may wish to consider and to judge. I merely point out that this amendment protects the younger party only by discouraging the older party.

I understand that the noble Lord seeks to address the fear of corruption by older men. He feels uneasy too about the prosecution of younger men when perhaps it is the older party who is really the more culpable. I can understand that. But at present, those anxieties are addressed through the way in which individual cases are dealt with by the prosecuting authorities. That is the best way in which to deal with them.

I turn now to Amendment No. 164CD and its associated amendments. The noble Lord has made a powerful case on behalf of victims of a dreadful crime. The victims of non-consensual buggery—whether they are male or female—suffer a terrible, and often life-lasting, experience.

The central question is whether it is right to call those crimes "rape". The Government have long taken the view that rape is well understand as a particular crime —one that can be committed only by a man who has intercourse with a woman without her consent. Both the Heilbron Committee in 1975 and the Criminal Law Revision Committee in 1984 took that view.

It may be that public opinion is changing on this but, if that is so, there is still a difficult question as to what the new definition would be. The noble Lord, Lord Ponsonby, suggests one definition, but others press for something wider still. Others will argue that we are right to leave the offence as it is, but that we should look, instead, at the offence of indecent assault and the sentence which is available for that offence.

The Government are not unsympathetic to the argument that the maximum penalty for the non-consensual buggery of a man is anomalous in being set at a lower level than that for rape. But simply increasing that penalty would create further anomalies, and it is not a solution which the noble Lord proposes. But what he proposes raises a profound question about the public understanding of the crime of rape.

His amendments would also reduce the penalty for all consensual buggery of men—when one or both are under 21 or when it is done in private—to two years. That would remove the law's current provision for a severer penalty where the older man in a homosexual relationship is over 21. As I have already explained in relation to the offence of gross indecency, that is not a proposal which the Government support, although it is a matter on which I am willing to reflect, as indeed I shall reflect upon all that has been said.

However, I do not think that the noble Lord has demonstrated that the law is generally inadequate in a practical sense, even if it is not in a form which could be considered ideal. I do not think that his proposals, well-intentioned though they are, are as straightforward as they may seem, and this Bill would not be the Government's choice of vehicle for them. This is a criminal justice Bill. It is not a sexual offences Bill. The law dealing with sexual offences is chillingly complicated, and I really think that we shall have a tiger by the tail if we start trying to alter different facets of the law on sexual offences without considering the problem as a whole. But I shall certainly reflect carefully on what the noble Lord said about those very complicated matters.

Lord Monson

In my view it is a great pity that Amendments Nos. 164B and 164C have been grouped with Amendment No. KS4CD, which deals with a separate matter. I do not suppose for a moment that that is the fault of the noble Lord, Lord Ponsonby. However, I think that he made a very good case, at any rate in principle, for Amendment No. 164CD and I believe that the Minister acknowledged that fact in his reply. I hope that the noble Earl will realise that there is support from other parts of the Committee for at least the principle behind the amendment relating to male rape, if one may so call it. I hope that he will think very seriously on the matter and return with an alternative on Report.

Lord Swinfen

I should also like to say a few words on Amendment No. 164CD as my name is attached to it. Like my noble friend Lord Ferrers, I am not sure that "male rape" or "rape" is the right description of the crime. Non-consensual buggery is perhaps more accurate. However, I believe that the penalty should he brought into line with that for the rape of a woman. Non-consensual buggery for a homosexual man would be an extremely traumatic experience. For a heterosexual man it would be an even greater trauma. However, if it happens to a woman it. could be more distressing still because not only is she being violated, but her total femininity is being destroyed at the same time as she would not be used in a natural manner that one might expect. I believe that we should look at the punishment for such a heinous crime.

Lord McIntosh of Haringey

I understand the Minister's reluctance to embark on full-scale sexual offences legislation in the context of what is supposed to be a criminal justice Bill. However, I was puzzled by the Minister's response to Amendment No. 164B. I believe that the issue raised by my noble friend's amendment is consequential on the changes made in Clause 139. Without some such amendment as that proposed by my noble friend, there will actually be an anomaly.

The present law makes a distinction as regards intercourse between a man over the permitted age and one under it and two men who are both under the permitted age. At present, the penalty for an over-21 year-old having intercourse with a man younger than 21 is five years. When the permitted age moves to 18, we will have the anomaly that that 21 year-old watershed will also move to 18. Therefore, a man of 18 having sex with a man of 17 crosses the new watershed. The penalty for that will, therefore, be five years; whereas, under existing legislation, where the watershed is not set at 18, the penalty is two years. So, paradoxically, the penalty for that particular offence is being increased. That is strictly consequential on the existence of Clause 139.I wonder whether the Minister has anything more helpful to say about that amendment, although I concede that his answers on the other amendments were as helpful as he felt able to make them.

Earl Ferrers

I do not believe that I have anything further to add, other than to point out that I did say that we did not consider the proposal to be wholly redundant. Where the younger man is aged between 16 and 18 years of age and the older man is over 21 it may still be appropriate to contemplate the higher penalty, even though there might have been consent. However, as I said at the conclusion of my remarks on the group of amendments, I shall certainly consider what has been said and take it into account.

Lord Ponsonby of Shulbrede

I am grateful to the noble Earl for his comments, especially on Amendment No. 164CD. Obviously we are not dealing with a sexual offences Bill, but it is the practice of both Houses of Parliament to legislate in a piecemeal manner if there is a strength of feeling within both places that the matters concerned can be slotted in, so to speak, into the appropriate piece of legislation. Indeed, at an earlier stage of the Bill this Chamber decided to accept an amendment moved by the noble Lord, Lord Lester, which stated that rape within marriage should become an offence. Therefore, there is no reason why the amendments which I have put forward cannot be accepted.

The broad approach of Amendments Nos. 164B and 164C is to equalise the penalties for under-age sex between heterosexuals and homosexuals even though the age of consent will be different. The Minister quite rightly pointed out some anomalies in the latter, but I believe that I accepted in my introductory remarks that there are indeed some anomalies. However, I am disappointed that the Minister did not go further and accept that there should be an equality of penalty.

As to the word "rape", I should like to point out as a matter of interest that The Shorter Oxford Dictionary dates the application of the word (regarding the act of buggering a man or boy against his will) back to the late 15th century. It is perhaps high time that the law caught up with the modern world. However, given the nature of the noble Earl's comments, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Annaly

I beg to move that the House do now resume. In moving the Motion, perhaps I may suggest that the Committee stage begin again not before 8.15 p.m.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.