§ Mr. Randall
I beg to move amendment No. 86, in page 1, line 13, at end insert'and the court passes a custodial sentence on the offender for a term of more than two years'.
§ Madam Deputy Speaker (Miss Betty Boothroyd)
With this it will be convenient to discuss Government amendments Nos. 2 and 3.
§ Mr. Randall
The amendment is widely supported by informed opinion outside the House. Its aim is to extend the criteria governing the use of custodial sentences.
Hon. Members will recall that clause 1(2) of the Bill lays down the conditions whereby custodial sentences shall not be passed; it also refers to offences triable only on indictment, where the sentence is of two years or less. As it stands, the clause requires the criteria to be satisfied in all cases where the offender has not served a prison sentence, but in other cases where an offender is convicted of an indictable-only offence the Bill allows courts to pass a custodial sentence without giving reasons and without having to justify the sentence in line with the criteria in clause 1(2).
There are several reasons why the criteria should be extended to indictable-only offences. The basic argument for the criteria in clause 1 is that having to give reasons to justify custodial sentence of grounds relating to the seriousness of the offence or the need to protect the public from serious harm is a valuable discipline which should help to reduce the likelihood of inappropriate custodial sentences.
A subsidiary but important argument is that, if there is a subsequent appeal against the sentence, the existence of the statement of reasons helps everyone involved in the process to decide whether the sentencing court's reasoning was acceptable or not.
These arguments apply just as much to custodial sentences imposed for indictable-only offences as to custodial sentences for summary or either-way offences.
Many indictable-only offences cover a very wide spectrum, in some of which a community penalty is entirely appropriate. Robbery, for example, ranges from armed robbery to offences in which the degree of force was relatively slight and the amount stolen small. In recent years about a quarter of offenders convicted of offences 383 triable only on indictment—that is, in England and Wales—have been given non-custodial or suspended sentences. In 1986 the figure was 26 per cent., in 1987 it was 25 per cent., in 1988 it was 26 per cent. and in 1989 it was 24 per cent. Therefore, if the statutory criteria do not apply in indictable-only cases, certainly the discipline of applying them would not be present in many cases where a community penalty is a realistic possibility.
In Committee, Labour Members introduced an amendment to extend the criteria in clause 1 to all indictable-only offences, excluding those for which the penalty is fixed by law. When the amendment was discussed on 29 November, the hon. Member for Oxford, West and Abingdon (Mr. Patten) said:It would be wrong and inappropriate to require the Crown court to follow the detailed procedures in clauses 1 and 3 in every serious case in which an offender has repeatedly committed serious or violent crimes … We are trying to give guidance to judges about the way that Parliament will seek, in future, to see sentences handed down, but not to go so far as to make a judge sit up straight and say, 'This is ridiculous. Why should I have to give a reason for sentencing someone who has just committed a dreadful aggravated burglary or a terrible rape? Why should I have to go through the hoops and say in open court why this man or, more rarely, this woman should get an immediate custodial sentence?"—[Official Report, Standing Committee A, 29 November 1990; c. 23–26.]The revised amendment meets the point that the Minister made in Committee. In those serious cases where a long prison sentence is inevitable, the judge should not have to give reasons, in line with the criteria for custodial sentences in clause 1. We are arguing that, by imposing a requirement to give reasons for custodial sentences of two years or less, the amendment would ensure that the discipline of applying the criteria in the indictable-only cases makes a community penalty a realistic possibility. An argument against the amendment is that it might tempt judges to pass sentences of more than two years when they would otherwise have passed a short one. However, it is extremely unlikely that judges would give longer sentences simply to avoid giving reasons. This is a reasonable amendment, and I hope that the Government will look favourably on it.
§ Mr. Humfrey Malins (Croydon, North-West)
I begin by declaring an interest as a solicitor and an assistant recorder, although the incomes from both sources is not enough even to cover my mortgage, given the interest rate.
I respect the expertise of my right hon. Friend the Minister in penal reform and sentencing policy. He combines that with a sensitivity and decency that are widely respected on both sides of the House. My query arises out of line 20 and the words "serious harm". Those words have troubled the judiciary. In the Criminal Justice Act 1988, one of the criteria for sentencing, which is also set out in clause 1 (2)(b), was that a custodial sentence was needed only when itwould be adequate to protect the public from serious harm from him".In dealing with young offenders, the courts felt that "serious harm" meant physical harm, rather than more general harm, to the community. That definition gave judges problems.
Let us take the example of a 25-year-old man with eight or nine convictions spread over three years. All the convictions are for crimes that are not so serious individually as to give a court a chance to impose a 384 custodial sentence. He may have committed what one could call gentle burglaries during the day time, wandering into somebody's house and being a nuisance, although doing so without any aggravating factors against people or breaking in. He may have taken away and driven a car, which is not a serious crime although it is a nasty business for the owner of the car.
The man may have been dealt with leniently in respect of all those offences—conditionally discharged once, fined, placed on probation, given a bigger fine, given community service, placed on probation again, and so on. He comes before the court and pleads guilty to another single charge of the same sort. Let us place ourselves in the position of the sentencing judge. The court may have concluded that the young man is such a nuisance to his locality, causing trouble by his regular burglaries and taking and driving away, that he should be sentenced to a short period of custody. Under Clause 1(2), is it possible for him to be sent into custody? The first part says that the offence was so serious that only such a sentence could be justified. He will not be caught under that limb, will he? The second part says that only such a sentence would be adequate to protect the public from serious harm from him. It cannot be said that the harm is physical, but equally the harm to the general public might be substantial in terms of nuisance value.
I should like my right hon. Friend to guide me on whether serious harm means physical harm. I would prefer it to mean physical or otherwise, to cover a case like the one that I have mentioned. My right hon. Friend may draw my attention to clause 3(3), which says that previous convictions can be relevant to forming an opinion as to the seriousness of the offence. If he does, I should like it confirmed, if possible, that the seriousness in effect relates to non-violent and violent behaviour. It is important that judges' hands be not tied too much.
My right hon. Friend may say that under the legislation there is a possibility of sending someone to prison for such an offence if he is a professional crook, a recidivist—someone who commits burglary professionally time after time. There may be examples of young men who cannot be described as professional crooks but who are perhaps persistent—for want of a better word—nuisances in their own locality. Is there an opportunity under the Bill for them to be sent into custody at any stage? I hope that my right hon. Friend will be able to help me.
§ Mr. John Patten
First, I will deal with amendment No. 86. Then I shall examine the issues raised by my hon. Friend the Member for Croydon, North-West (Mr. Malins) in his welcome intervention. I shall end with a panegyric in praise of the Government amendments which I hope will carry the House.
I am grateful to the hon. Member for Kingston upon Hull, West (Mr. Randall) for explaining the reasons behind amendment No. 86. It has been said many times during the passage of the Bill that a custodial sentence should be imposed only when it is the just desserts of the offender. We agree on that. However, I do not think that the amendment is helpful in that respect.
Let me remind myself and the House of what clause 1 does. It imposes restrictions on the use of custody for all summary and either-way offences and for indictable-only offences where the offender has not previously been in 385 prison. Indictable-only offences are of their very nature serious. That is why they are indictable only. If the offender has previously served a prison sentence, we do not think that it is right to ask the courts to apply the full rigour of clause 1 before passing sentence. As the clause stands, the courts will know when they begin to sentence whether the offender is someone who should be hit by the full weight of clause 1.
I understand the reasons for the amendment, but I think that it would create a serious logical difficulty. The poor old court would have to decide whether the offence deserved a sentence of more than two years before it could tell whether clause 1 would apply. If it did, the court would have to start all over again to determine the sentence, this time applying clause 1. So, by virtue of clause 1, the court would have to consider again whether the offence was serious enough to justify the sentence. In such circumstances, the Crown court proceedings would become a logical maze at best or a pantomime at worst. I prefer to rely on the well-known Court of Appeal route to deal with problems arising from wrongful interpretation.
On the problems raised by my hon. Friend the Member for Croydon, North-West—Mr. Assistant Recorder Malins—I think that he is on to a good point in considering seriousness. As he knows, there is nowhere any definition of seriousness. There is not, at the end of an Act, a long schedule or list of things that are judged to be serious or not serious. In the end it is up to Crown court judges, recorders or assistant recorders to decide what is serious and what is not. The example quoted by my hon. Friend of a persistent burglar is covered by clause 3(3), under which the courts can take into account mitigating and aggravating circumstances. Clearly, in the example given by my hon. Friend, the circumstances of the previous offence aggravate the seriousness of the current offence. There is therefore no need to involve the criterion of protecting from serious harm in such a case, and the people who might be terrorising my hon. Friend's constituency are, I think, catered for adequately by clause 3(3). None the less, I am grateful to my hon. Friend for giving me an opportunity to clarify the point.
I resisted amending the Bill in Committee because I felt that the arguments adduced for removing the words "or otherwise" from the clause were worthy of consideration, but that we should not rush into it. Having taken a good, long, hard look at the matter, I have concluded that restricting clause 1(2)(b) to violent or sexual offences in line with clause 2(2)(b) is logically correct and will make for simplicity of sentencing. It resolves the logical difficulty that was pointed out in Committee and emphasises the clear distinction between property crimes and violent and sexual crimes that is reflected throughout the other sentencing provisions in the Bill. I hope that the House will accept the Government amendments.
§ Mr. Randall
I confess that I am a little disappointed by the Minister's response. I thought that we had addressed all the arguments that he advanced in Committee and come up with a lovely shiny new amendment that would enable us to put fewer people in prison. The aim was to enable indictable offences to be tested by the criteria in clause 1 and to try to limit the number of indictable offences that were considered by introducing the two-year time scale. I thought that that was rather a novel way of dealing with the matter.
386 Many indictable offences now result in non-custodial sentences—about a quarter. I felt that many such cases were not harmful; people were not being put in prison. I thought that the amendment would enable people who had committed such offences to be dealt with outside prison. The motive was good. I think that we should use the amendment as a flag, waving it at the Lords and perhaps persuading them to consider it.
I beg to ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Amendments made: No. 2, in page 1, line 19, at beginning insert
'where the offence is a violent or sexual offence'.
§ No. 3, in page 1, line 20, leave out from 'him' to end of line 21.—[Mr. John Patten.]
§ Mr. Harry Cohen (Leyton)
I beg to move amendment No. 93, in page 1, line 22, at end insert—'(c) and, in the case of a sexual offence, in addition to subsection (2)(a) or (11) above, that the offence involved persons under the age of 16, or the offence took place without the consent of one or more of the persons involved.'.
§ Madam Deputy Speaker
With this we may take the following amendments: Government amendment No. 4, and amendments Nos. 36, in page 2, line 35, at end add'or(c) in the case of a sexual offence, the offence involves persons of the age of 16 or over, and the offence takes place with the consent of all the persons involved.'.No. 94, in page 2, line 35, at end insert,'; or—(c) in the case of a sexual offence, the offence involved persons of the age of 16 or over, and the offence took place with the consent of all the persons involved.'.Government amendment No. 14, amendment No. 1, in page 18, line 29, leave out'30, 31 and 33 to 36'and insert'13 and 30 to 36'.No. 95, in page 18, line 30, leave out'the Sexual Offences Act 1967'and insert'section 1(3) and (4) of the Sexual Offences Act 1967.'.No. 38, in page 18, line 30, leave out'the Sexual Offences Act 1967.'.and Government amendments Nos. 15 to 17.
§ Mr. Cohen
Amendment No. 93 provides that a court shall not pass a custodial sentence unless it believes that the offence involved persons under 16, or that it took place without consent. It applies two principles. First, there should be no discrimination between heterosexual and homosexual offences, which should be dealt with equally under the law; secondly, "consensual" offences involving no victim, and involving people aged 16 or over, do not warrant being classified as serious sex crimes and should not be punished with custodial sentences. I welcome the Government's similar statements of principle. I am thinking, for example, of their amendments in relation to merchant seamen. However, I think that they have come adrift. What I seek to do is to give effect, in law, to those principles.
A Home Office press release of 8 February refers to the Minister's letter to the hon. Member for Hornchurch (Mr. Squire), who is in his place. That press release says of clause 25:the provisions are not intended to discriminate against homosexual or heterosexual offences.387 The Minister's letter says:It will therefore be clear from what I have said that the sentencing provisions of the Bill, supported by the definition of 'sexual offences' in clause 25, have nothing to do with increasing the penalty for victimless homosexual offences or, indeed, changing in any way relative seriousness with which the law regards offences of a homosexual, as opposed to a heterosexual, character.That explains the principle. Indeed, it follows up a response of the last Home Secretary, whose new name I can never remember. One of my hon. Friends refers to him as Lord Waddington of Strangeways, but perhaps that is a bit too rude. When he was Home Secretary this question was put to him by the hon. Member for Hornchurch:Will he undertake to look closely at clause 25 which, it has been suggested, would increase the punishment for minor offences such as soliciting by men or women? If that is so, I am sure that many hon. Members would suggest that much higher sentences for those offences are not appropriate.The then Home Secretary replied:I do not believe that my hon. Friend can be right. Clause 25 does not refer to that. If he will have a word with me afterwards, I shall see whether there is anything I can do to meet his point."—[Official Report, 20 November 1990; Vol. 181, c. 143.]Clearly, the Minister of State, in his letter, is trying to fulfil that undertaking. A Home Office press release of 15 October says:It has never been the Government's intention that the Bill's provisions should increase in a discriminatory way the penalties of homosexual offending.While welcoming those principles, I seek to have consenting homosexual behaviour removed from the list of serious sex crimes. It is quite wrong that victimless behaviour should be on a par with genuinely serious sex offences, such as indecent assault or child sex abuse. Indeed, the Government have virtually acknowledged that. The latest press release, issued on 1 February, gives two more examples: coercion of a victim—a schoolmaster abusing a position of trust to take advantage of pupils—and an unsuccessful attempt to entice a young child of either sex to go with the offender. I do not think that those offences need to be covered by this clause; they can be dealt with by existing laws against indecent assault or attempted indecent assault on a child or a man.
The Government's amendments, although they are welcome, leave in place three types of consenting homosexual behaviour as serious sex crimes. These are soliciting, indecency and procuring. Clearly, the Government are still in a muddle. They deleted procuring from the Sexual Offences Act 1967, but left it in the 1956 Act, which is the most used—in fact, all 346 convictions in 1989 arose from its provisions.
I will give another example of the way in which the Government are in a muddle. Consenting homosexual soliciting, indecency and procuring are listed in clause 25 as serious sex crimes, but not one of the equivalent heterosexual offences is listed. That runs counter to the principles that the Minister annunciated in his letters.
This is about sentencing. I want equality and the best way to achieve that is not to imprison either heterosexuals or homosexuals in cases of consenting sexual offences where all the persons involved are 16 or over.
Soliciting, indecency and procuring are left in the clause. A total of 2,311 people were convicted of those offences in 1989, including 90 people gaoled for up to five years. In addition, some people were given cautions. That 388 is the highest level of convictions and cautions since the mid-1950s when homosexuality was still illegal. That is disturbing and we must be concerned that homosexuality could be on the way to being recriminalised. Peter Tatchell, of the organisation Outrage, said:This legislation intensifies the criminalisation of gay sexuality. It reverses the liberalising trend of the last three decades. Clause 25 takes us back to the pre-Wolfenden days when homosexuality was seen as a threat and menace which had to be repressed by law.Clearly, the Government have moved a bit since then, but the danger of recriminalisation still remains.
Soliciting and procuring have nothing to do with prostitution. Keeping those offences in clause 25 criminalises attempts to arrange and facilitate homosexual relations, even where those relations are completely legal. Keeping indecency in the clause penalises affectionate acts between men outside the privacy of their own home. That can include things as irrelevant—in my view—as kissing, caressing and hugging and activities at lovers' lane locations. As a result, we often have elaborate and expensive police entrapment arrangements. Heterosexual couples involved in similar behaviour are almost never prosecuted.
Seven types of commonplace homosexual behaviour are covered by the three items still included in clause 25. These include: introducing two men who fancy each other and subsequently have sex; allowing two men to stay overnight in one's house and to have sex in one's spare bedroom; cruising and chatting up other men or exchanging names and telephone numbers in a public place; all gay sex where more than two people participate; any form of homosexual activity involving a man aged between 16 and 21; gay sex in a bedroom in a private house while other people are present in other rooms, for example, a flatmate watching television in the living room, and all sexual or affectionate contact between gay and bisexual men of any age outside the privacy of their own home—including cottaging, sex in lovers' lane type locations and even mere caressing, kissing and cuddling. The purpose of my amendment is to ensure that those should not be categorised as serious sex crimes resulting in imprisonment.
There are three other disparate but relevant matters. I have written to the Minister about sentencing in my area. Waltham Forest courts have been handing out fines of about £250 to gay and bisexual men convicted of consensual indecency. Yet the same judges have fined men only £50 for brutal sexual assaults on women and only £20 for racist abuse and threatening behaviour. That cannot be satisfactory.
A constituent of mine, Ms. Woolfson, has written to me saying:We are supposed to be living in a `free' society, but it seems that the Government is imposing a certain or conforming standard of existence on its subjects. Surely people should have the right to make up their own minds how to live their lives, (without harming others of course).Many homosexual people live ordinary lives without harm to anyone.If clause 25 becomes law, judges will have the power to impose much harsher sentences on gay and bisexual men convicted of consenting behaviour and thousands more gay men could face imprisonment and wrecked lives.I received a letter from the National Association of Probation Officers. It says that the clause has no equivalent in other European jurisdictions and that 389Some courts may construe this behaviour as physically or psychologically harmful. In view of the extent of homophobia within the criminal justice system, NAPO would support continued attempts to delete the two above offences from clause 25.Repeat offences are not commonplace. The law criminalises activity which is not unlawful in most of Europe and which, for many men, is the only feasible means of sexual contact.It is wrong to put consenting offences by homosexuals on a par with the sexual abuse of children. The Government's formula that those offences may be "physically or psychologically injurious" to members of the public is a gross loophole, because it is poorly defined and gives huge discretionary powers to the court. Judges may be intolerant or illiberal and impose severe punishment. Alan Sampson of the Prison Reform Trust says that he fears that the powers in clause 25 could be misused.
The issue is consent, and all consenting offences should be deleted from the list of serious sex crimes in clause 25. I urge the Minister to accept my amendments, which would implement the Government's stated intentions, or at least to give a firm commitment that they will think again and table new amendments.
§ Mr. Robin Squire (Hornchurch)
The amendments are important, but the fact that we are debating them at a late hour inevitably means that we will probably not do them justice. I shall not detain the House, partly because my voice is going.
I welcome the Government amendments. My right hon. Friend the Minister received appeals and was under pressure, if that is the right word, from several of my hon. Friends and others on the original wording of clause 25. He rightly understood that it was capable of misinterpretation. The points made by the Stonewall group were welcomed and valuable and they enable the Government amendments to clarify much of what was creating considerable concern among the lesbian and gay men community. I hope that my right hon. Friend will give due recognition to the support that he received from it.
I hope that my right hon. Friend the Minister has not closed his mind to further amendments to the clause. I shall not echo the speech of the hon. Member for Leyton (Mr. Cohen), although he made several legitimate points that should find sympathy among hon. Members.
We should carefully consider whether the clause would apply to consensual offences. Amendments moved in another place could make clear the crimes from which we are determined to protect the public, particularly our youth, but stress that different considerations apply to adults.
I hope that the Government will carefully monitor the way in which the courts interpret the clause. I do not doubt the commitment of my right hon. Friend the Minister, to which the hon. Member for Leyton referred. My right hon. Friend is an honourable man and I know that he means what he says. The way in which the clause works in practice will determine the way in which people respond to the Bill and to the Government's improvements to it. I support the Government's amendments.
§ Mr. Andrew F. Bennett
I support the amendment moved by my hon. Friend the Member for Leyton (Mr. Cohen) and the comments of the hon. Member for Hornchurch (Mr. Squire), who said on Second Reading 390 that there was a problem. The problem was not one that the Government set out to create but one into which they stumbled because of the drafting.
We had a brief debate in Standing Committee, when I pressed the Minister to think further about this matter. I am grateful to him for tabling some amendments at this stage. I view this matter slightly wryly, because some hon. Members criticised me for not pressing the measure to a vote in Committee. We have done better by not having a vote and getting the Minister to consider it again. I urge my hon. Friend not to press for a vote tonight, in the hope that he will consider it further. He has gone a long way towards meeting our worries, although considerable concerns still exist.
The first principle of the law is that it should protect people from the activities of others. I find it difficult to envisage the concept of a victimless crime. We do not need to involve the law in protecting individuals from consenting acts. I accept that young people must be protected, but it is odd that we have a law that says that people may participate in heterosexual activities when they are 16 but we restrict people from participating in homosexual activities until they are 18. That is illogical. We cannot alter that in the Bill; we can only alter the nature of the crime.
It is worrying that people can be kept in prison not on the basis that they are being punished but so that society can be protected from them. There should be somewhere more appropriate than prison to keep people if they are a danger to society, having already served their sentence.
The Government are increasing the penalties for those who commit serious crime in order to reduce it and to protect the public from it. In clause 25, they have scooped into the pool a series of serious crimes. I hope that the Minister will carefully consider the offences that are still in this category which involve consenting adults, and assure us that he does not intend that the courts should increase the penalties.
The Bill is designed to increase penalties and increase protection, and one would not expect the courts to increase the punishments imposed on those who commit serious crimes in this category. That is not what the Government intended, and it is not what should happen. I understand that groups such as Stonewall feel that the Government have gone a long way towards meeting their concerns. Outrage and Peter Tatchell feel that they have not gone far enough. Much of the difficulty arises from the Bill's complicated construction and the fact that it refers to two previous pieces of legislation.
I shall listen carefully to the Minister's explanation of how he intends the Bill to operate. I hope that he will listen to the fears that have been expressed by hon. Members this evening and consider the written evidence that is submitted to him. Perhaps the right hon. Gentleman will agree to meet a delegation of Opposition Members. I suspect that some Conservative Members may want to meet him as well. I hope that he will give consideration to changing the wording of the clause when the Bill is considered in another place so that what he intends to happen, and what I think the House wants to happen, is clearly and obviously set out in the Bill.
That will ensure that, when the Bill is enacted, the law will be clear and obvious to judges when they have to administer it. It should be clear that there is no intention to increase the penalty for the crimes that we are 391 discussing. I hope that we shall be able to listen to the Minister in a spirit of trying to get the law right, and not in one of confrontation.
§ Dame Elaine Kellett-Bowman
In Committee, my right hon. Friend the Minister of State said:This is not the occasion to debate the rights and wrongs of the existing structure of sexual offences as they affect homosexual activity and hetebhzxual activity."—[Official Report, Standing Committee A; 18 December, c. 314.]It never seems the right occasion to do so.
Sodomy is unhygienic, unhealthy and still the major cause of the spread of AIDS. If some highly paid actors form a group, flaunt their own perversion and wish to protect others from custodial sentences, that does not seem to me to be a good reason to soften clause 25, or any others, to satisfy their sensitivity for such persons.
The general public still detest these perversions and are anxious that the flaunting of them should not encourage young and impressionable teenagers to copy unpleasent examples, consenting or otherwise. These perversions cause a great deal of harm, even if they are carried out with consent.
The hon. Member for Leyton (Mr. Cohen) said that the clause would lead to the recriminalising of homosexual activity. There are many who wish that it would. Why should the public have to wait forfurther such offences to be committed by him"?If the amendment were to read,further such offences that might otherwise be committed by him",it might be more acceptable. As it stands, it is bolting the stable door after the horse has fled.
The Bill as a whole is a good one, and I shall be sorry if any amendments introduced by the Government, or tolerated by them, in response to fashionable pressure should encourage, or fail to discourage, these very unpleasant perversions.
§ Mr. Simon Hughes (Southwark and Bermondsey)
I am tempted to think—this may be a bit mischievous—that the speech of the hon. Member for Lancaster (Dame E. Kellett-Bowman) was that of an agent provocateur. I understand that we should not be seeking to redefine in this Bill the characteristics of a range of sexual offences, and I do not think that anyone is seeking to do that.
I am grateful, as is my hon. Friend the Member for Caithness and Sutherland (Mr. Maclennan), for the co-operation of the Minister of State and his Department when we, and others, have made representations and inquiries of our own and on behalf of others on this subject. That co-operation reduced to a squall what had seemed likely to be a stormy debate, and I hope that the squall can be reduced to a calm sea in due course. The amendments that my hon. and learned Friend the Member for Fife, North-East (Mr. Campbell) and I have signed are seeking to do just that.
I hope that all Members of the House, including the hon. Member for Lancaster, will accept that there is a logic in doing what those who support the amendments seek to make possible. There are simple objectives of principle. First, it is sought to prevent the imprisonment, or potential imprisonment, of those who are victimless in the normal sense of the word and who are over 16 years of age. There 392 is no attempt here to change the legality of actions over 16. But in a society in which far too many people are in prison, we should be seeking to avoid sending to prison, or risking doing so, those involved in victimless offences.
The amendments seek to exclude those who are vulnerable. The Minister rightly said that we must be careful that we do not suddenly exclude from severe penalty those who abuse positions of power. An obvious example has been cited. I refer to those who hang about school playgrounds and interfere with young children. Society must rightly be firm in relation to such people's anti-social and criminal behaviour. We must draw a clear line between such abuse of young people and a more consensual form of activity.
We must also protect, as the amendments seek to do, those of a lower mental age who are clearly not capable of making adult decisions and who, tragically, are often also the victims of abuse. We must be careful that the line is drawn on the correct side in relation to them.
Although I have not had the opportunity personally to check the statistics, I must advise the Minister that the evidence shows that the present law appears to be used overwhelmingly against allegedly gay activity, rather than other activity. That suggests a lack of equity, and therefore discrimination. The second objective of principle is that we must seek to avoid discrimination in the application of the law.
Although these matters may be fairly academic to hon. Members, these offences can cause enormous stress and concern to individuals who get caught up in this area of the law. Before I was elected to this House, as a lawyer I both prosecuted and defended, and in cases under the Sexual Offences Act I have seen the trauma that is caused to people who are taken out of their normal family life on these types of charges and find themselves in court. They are not only publicly exposed, tried and fined, but sometimes imprisoned. That is an unjustified double penalty.
Although I have not received enormous numbers of constituency representations on this matter, I have received sensible representations from a few of my constituents, one or two of whom have made the clear point that the Bill, which has now been improved considerably, needs to be further improved if it is not to make their lives far more risky and discriminated against in terms of criminalisation than the lives of many of our other citizens.
I hope that the mood of the House, which was detected by the hon. Member for Hornchurch (Mr. Squire) and others, is that although we recognise that the Government have already to an extent responded to the problem—perhaps no one at the Home Office foresaw this legislative entrapment—with a bit more effort on both sides, we can ensure that we do not pass something that we do not intend. We must ensure that we end up with clear legislation which does not criminalise when it should not, does not discriminate, is consistent with civil liberties, minimises the number of people in prison, and yet wholly protects those who are vulnerable.
§ Mr. Chris Smith (Islington, South and Finsbury)
You will forgive me, Madam Deputy Speaker, if I do not follow point by point the speech of the hon. Member for Lancaster (Dame E. Kellett-Bowman), passionately though I disagree with its content and the colour of her language.
393 The Government will appreciate the degree of concern felt in the lesbian and gay community over the original proposal in clause 25 when it first saw the light of day. To many people, it seemed as though the Government were intent on increasing the penalties for activities which, while technically illegal, were entirely consensual and victimless. That apparent threat comes at a time when lesbians and gay men face discrimination in many aspects of their lives; when gay men are increasingly being violently attacked in the streets and outside pubs and clubs throughout the land; when many gay men are heroically engaged in the battle against HIV and AIDS; and when many of us had hoped that we might be making progress on the rights of the millions of our citizens who are lesbian or gay, not retreating back wards.
Therefore, I give a warm welcome to the changes that the Government are making to clause 25. They have gone a long way to relieving widespread anxieties. However, I do not believe that they go far enough. I urge the Government to go the extra mile.
I shall deal first with the clause. The Government are removing three of the five offences which caused concern from the list of potentially serious offences—those relating to the crews of merchant ships, procuring, and living on the earnings of male prostitution. They have also clarified the definition of the serious harm which has to be caused before the stiffer penalties of clause 25 can be triggered. So far, so good. But we have to ask why the Government have left in the offences of indecency between men and solicitation by men. Those are overwhelmingly minor, consensual activities, yet they will still be included in a list along with truly serious matters such as child sex abuse.
There are still a disturbing number of convictions for those two offences every year. I put four specific points on those offences to the Government. First, the offences are discriminatory and are used against gay men exclusively, or almost so. Secondly, they are widely used in cases of police entrapment. Hardly ever has a member of the public appeared in court to complain that they were the victim of a supposed approach under either of the offences.
Thirdly, if, as they said in the press notice issued together with the amendments when they were published, the Government have valid anxieties about cases such as a headmaster taking advantage of a pupil or the enticement of a child, other powers are available—such as the offence of indecent assault, which carries a maximum sentence of 10 years' imprisonment. The Government simply do not need the powers in clause 25 to tackle a serious offender such as they describe. Meanwhile, scores of far more innocent people would be put at risk, albeit a qualified risk, of severer sentencing.
Fourthly, the continued inclusion of the two offences perpetuates the adverse labelling of gay men and gay relationships as second class and less valid and valued than the loves and relationships of others. To do so diminishes our democracy in a real sense. I strongly urge the Government to think again about including those two offences in clause 25. The Minister said, and I appreciated him saying it, that he did not wish to be discriminatory. He said that he did not wish to increase the penalties for relatively innocent gay men. Let him, therefore, accept amendment No. 1 and put the matter entirely beyond doubt.
I urge the Government to go further still. The law still discriminates massively against lesbians and gay men. I, 394 for one, will not rest until proper and full equality before the law, coupled with freedom from discrimination, has been achieved.
It is worth reminding ourselves of the absurdities of the present legal position. Sex is legal between a man and a woman at 16. Effectively, it is legal between two women at 16. But between two men it is legal only at 21. Let us compare the position in other European countries. In all the following countries there is complete equality in the age of consent. In Denmark it is 15; in France it is 15; in Greece it is 15; in Italy it is 14; in the Netherlands it is 16; in Spain it is 12; in Norway it is 16; in Sweden it is 15; in Poland it is 15; and even in Albania it is 14. Yet here in Britain the law is grossly discriminatory.
I appreciate that it is difficult in our consideration of the Bill to achieve such equality now, but amendment No. 93 tabled by my hon. Friend the Member for Leyton (Mr. Cohen) is at least a small step in that direction. Under that amendment when an act takes place entirely with the consent of the parties involved and both or all are over the age of 16, an offence might still have been committed, but it would not be imprisonable. That is a step in the right direction.
I ask the Government to acknowledge the confused and discriminatory nature of our sexual offences laws. The age of consent obviously discriminates by a margin of five years. Some indecency and other offences are used exclusively against gay men. A variety of consensual and victimless activities are regarded, quite unjustifiably, as criminal.
A root-and-branch review is long overdue and I hope and trust that the Government will agree to set such a review in motion as a matter of urgency.
§ 12 midnight
§ Mr. Michael Brown (Brigg and Cleethorpes)
The hour is late and I do not want to detain the House long, but I should like to endorse much of the speech of the hon. Member for Islington, South and Finsbury (Mr. Smith). I also thank my right hon. Friend for meeting a delegation from Stonewall. As a result, much progress was made on a number of items connected with clause 25.
I agree with other hon. Members that there is still some way to go. There is still discrimination against victimless crime and, as the hon. Member for Islington, South and Finsbury said, that underlines the need for a root-and branch reform of the law on gay sex. Problems still arise because of the attitude of the police and the courts towards soliciting and what is called "gross indecency". A great deal of discrimination still exists that cannot be put right by the Bill alone, the welcome amendments tabled by my right hon. Friend or the amendment tabled by the hon. Member for Leyton (Mr. Cohen). However, I hope that my right hon. Friend will accept the spirit in which opinions have been expressed.
When we compare the state of the law in this country with that in other Community countries and elsewhere in Europe, there is a strong case for a law commission to be appointed to study the subject. It should address many of the grievances that gay men and lesbians legitimately express.
Gay men and lesbians can be reassured by my right hon. Friend's comment in the press notice issued recently that he is anxious to ensure that the Bill, once enacted, does not add to existing discrimination. However, the 395 arguments advanced tonight should be addressed by the Home Office in a full comprehensive review of the law on this subject.
§ Mr. Maclennan
I need not detain the House, because the points have been made extremely effectively by hon. Members on both sides of the Chamber. I should put it on record, however, that it is the view of my party that a review of the kind called for by the hon. Member for Brigg and Cleethorpes (Mr. Brown) is a matter of urgency. We hope that the Government will take the opportunity, if not here then in another place, of the passage of Bill to announce such a review.
§ Mr. Sheerman
I do not want to detain the House. The Government's proposals on clause 25, together with the changes to clauses 1 and 2, represent a major shift in their position, which we welcome.
The Government have considerably tightened the definition of serious harm to meandeath or serious personal injury, whether physical or psychological".That should make it clear that consensual acts between men are not intended to be covered by clauses 1 and 2. We welcome the Government's recognition of the strength of our arguments and those advanced by other hon. Members and outside lobbies.
However, while procuring has been removed from clause 25, soliciting and indecency remain. I understand the Government's argument that they are needed for the very few coercive acts that can arise, but is it necessary to retain indecency within clause 25? Cannot the coercive offences about which we are all concerned be tackled by means of different legislation? Of course, I am running into the issues raised by other hon. Members about the need for a review of the law.
We are also worried that, despite the Government's intentions, some consensual offences may still be caught by clauses 1 and 2. The Labour party intends to return to that issue in another place and to introduce amendments to tighten up the definition of clauses 1 and 2 to ensure that consensual offences cannot fall within their scope.
It will be important to monitor the legislation to ensure that it has the desired effect. More generally, the debate has shown what a mess the sexual offences legislation is in. Genuinely consensual offences can be, and are, dealt with under the same statutes as behaviour that is dangerous to the public. That cannot be right. The law is in need of urgent reform. I have been extremely impressed by the quality of contributions from both sides of the House, and I hope that the Minister will respond positively to them.
§ Mr. John Patten
I was interested to hear the speeches of my hon. Friends the Members for Lancaster (Dame E. Kellett-Bowman) and for Hornchurch (Mr. Squire), and the brief but welcome contribution of my hon. Friend the Member for Brigg and Cleethorpes (Mr. Brown). I was also pleased to hear from the hon. Member for Leyton (Mr. Cohen) and from the hon. Member for Denton and Reddish (Mr. Bennett), who initially raised the flag in Standing Committee in his powerful speech. The hon. Members for Southwark and Bermondsey (Mr. Hughes), for Caithness and Sutherland (Mr. Maclennan) and for 396 Islington, South and Finsbury (Mr. Smith) also contributed. That is quite a gallery of talent and we heard a range of views.
It is clear that a number of different agendas are running, not just the one with which I am concerned—the protection of children, women or boys from serious and violent crime by homosexuals or heterosexuals. I do not decry the other agendas that involve major reforms of sexual law in this country. To Opposition Members in particular, I must say that the Bill does not address that subject. It is a Criminal Justice Bill, and the measures before us ensure that the public, the vulnerable public, the mentally handicapped, the young and others are properly protected. That is why we initially tackled the subject, and I intend to address the burden of my remarks to those issues, although the House will have noted what the hon. Member for Islington, South and Finsbury and others have said about other agendas.
There is much common ground between the Government and the Opposition on what has become known as the clause 25 issue, although it is a complete mistake to call it that because it relates to clause 1. The issue rests on clause 1, and the Government amendments deal adequately, through the clause 1 framework, with the problems which have been wrongly perceived to be contained in the list of offences in clause 25. I can understand how people unfamiliar with reading parliamentary legislation and Bills could think that there were awful designs and intends lurking in the legislation.
§ Mr. Patten
I was just getting into my stride—does the right hon. and learned Gentleman want to interrupt me? It is very late and I must try to keep awake, but if he really wants me to I shall give way.
§ Mr. Archer
I did not want to interrupt the Minister's stride, but his argument will not do—clause I must be judged according to the offences on which it bites.
§ Mr. Patten
Indeed, but we must also consider what amendment No. 4 states, which is:protecting the public from serious harm from him"——the word "hit" is used in a legislative way to refer to him or her—shall be construed as a reference to protecting members of the public from death or serious personal injury, whether physical or psychological, occasioned by further such offences committed by him.In other words, it is only if the offender can be shown to have caused death or serious physical or psychological damage that clause 25 will have any effect.
Clause 25 defines the term sexual offence for the purpose of part I of the Bill. The key use of the expression is in clauses 1 and 2, which enable courts to give longer custodial sentences than are strictly justified, according to the seriousness of the offence. I am sure that no hon. Member would dissent from the view that the courts must be given adequate powers to protect the general public from those who commit these forms of sexual and violent offences.
I rapidly learnt when the debates on this issue began that there were misapprehensions about it outside the House. Following discussions between the thoroughly responsible organisation Stonewall and myself, the Government effected the changes incorporated in the Government amendments to the Bill. We have sought to 397 put the matter beyond all reasonable doubt and to allay the concerns that have been voiced. The answer that I gave the right hon. and learned Member for Warley, West (Mr. Archer) a moment ago showed that clause 25 offences will be brought into play only when the public need protection from death or serious physical or psychological harm.
We have moved a long way to try to satisfy the understandable anxieties of people in the outside world——
§ Dame Elaine Kellett-Bowman
My right hon. Friend has moved so far to allay those concerns that he has aroused the concern of people who take a different view.
§ Mr. Patten
I am sorry if my hon. Friend finds it unsatisfactory that the Bill should allow courts to impose longer sentences on homosexual or hetrosexual men or women who inflict death or serious physical or psychological harm on members of the public. I think that my hon. Friend is probably worried about the wider issue of sexual law reform, which is not strictly the subject of this Bill.
It has been suggested that I should see an all-party group of Members. I should have been delighted to welcome Members for a Home Office cup of tea at any time in the past. I wish that hon. Members had been to see me earlier. My door is always open, my kettle always on the boil. I should be happy to hold a meeting before the Bill goes to the House of Lords. Not only have we travelled a long way to accommodate the views of people in the outside world; I believe that we have got the balance right, so I hope that Opposition Members will feel able to withdraw the amendment.
§ Mr. Cohen
I shall not repeat my speech. The Minister is right to say that the Government have moved a long way, but neither I nor a number of people who have spoken in the debate—and people outside this place—believe that he has got the balance right yet. Victimless offences should not be deemed serious sex crimes punishable by imprisonment.
However, I hear what the Minister has said. He agreed to meet a delegation. His mind is not completely closed. I welcome that. It hope that we can persuade him to make some changes over the cup of tea that he is offering.
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment made: No. 4, in page 2, line 24, at end insert—`(6A) In thissection and section 2 below any reference, in relation to an offender convicted of a violent or sexual offence, to protecting the public from serious harm from him shall be construed as a reference to protecting members of the public from death or serious personal injury, whether physical or psychological, occasioned by further such offences committed by him.'—[Mr. John Patten.]Amendment proposed: No. 5, in page 2, line 28, after `offence', insert`or (although convicted of it in earlier proceedings) is sentenced for it at the same time as he is sentenced for that offence'.—[Mr. John Patten.]
§ Mr. Sheerman
Very briefly, because I recognise the lateness of the hour, we understand and accept amendment No. 7 but we oppose Nos. 8 and 9. We are 398 very concerned that the amendments extend the power to impose longer terms of imprisonment for violent and sexual offenders to magistrates courts. This is a worrying extension of powers which could lead to greater inconsistency in decisions between magistrates courts.
It is hard to see how it could possibly protect the public from death or serious personal injury. Any serious triable either-way offence will be sent to the Crown court. Where the offence is not that serious, surely this power is not required. Magistrates courts can sentence to a maximum of six months for one offence or 12 months for more than one offence, and if they would have sentenced someone to four months but decide on six months as a result of this clause one cannot envisage that it would protect the public very much from death or serious personal injury; it would, however, lead to greater discrepancies between magistrates courts for the same offence.
That is our worry. We are not going to push this to a vote or anything silly like that, but we think that it is important to flag it up at this time of the evening.
Amendment agreed to.
Amendment made: No. 6, in page 2, line 29, leave out `those proceedings' and insert`the proceedings in which he is sentenced for the other offence'.—[Mr. John Patten.]