§ 4.4 pm
§ Dr. Evan Harris (Oxford, West and Abingdon)
I beg to move amendment No. 1, in page 1, line 6, after' (buggery);' insert—'(aa) in sub-paragraphs (a) and (b) of paragraph 3 (buggery) of Schedule 2 (punishments, etc.);'.I am pleased to see that the Home Secretary has joined the Minister of State, Home Office on the Treasury Bench. We are delighted to see the right hon. Gentleman in the Chamber but we are not sure what his presence signifies for the free vote that we on these Benches have been promised on this occasion. We hope that we will still have one.
I stress that I strongly support the clause. The purpose of the amendment is to explore ways in which the clause may be improved along the lines that I described in my contribution on Second Reading. It must be remembered that the clause deals with equality between homosexuals and heterosexuals in sexual matters relating to the criminal code. Amendment No. 1 draws attention to some of the other areas in which there should be equality.
There has not been a proper debate on such details for years and perhaps decades, if not centuries. Previous debates, especially on sentencing, have often taken place in the dark hours in the other place, at the last minute, and have been on measures tagged on to other Bills. This is the first opportunity in the context of a Government Bill for us to debate properly how equality in sentencing and other matters might be achieved.
Perhaps the most significant previous debate took place in the 1880s. The Government claim to be undertaking a process of modernisation, which some of us support. It is high time to modernise these laws.
We understand that it might be thought that some of these matters are covered by the Government's review of sexual offences. However, there is concern about the timetable of that review, first because these are relatively urgent matters, given that we are dealing with unequal sentences and other unequal provisions, and secondly because we are in danger of achieving equality and fairness in one part of a series of offences without making consequent changes in sentencing or in other respects covered by other amendments.
Amendment No. 1 deals with sentencing and other amendments deal with who can be charged with an offence. Other matters must be dealt with as new clauses and will be discussed in Standing Committee.
It is important to emphasise that in all these debates we are speaking about consensual offences. When we consider the appropriate sentence for such offences, 332 whether heterosexual or homosexual, it is important that we restrict our consideration to consensual offences. Non-consensual offences fall outwith the remit of the clause. I hope that we will be careful to make that distinction.
We must recognise that when we seek equality, which is the thrust of clause 1, we mean equality as between consensual anal intercourse between men—by which I mean buggery; it is also called other things, but I shall try to stick to the term "anal intercourse"—and unlawful sexual intercourse between a man and girls—in the case of offences that will remain criminal, even when the Bill is enacted—under the age of 16. It is vital that we make that connection when we speak of equality.
When we speak about maximum sentences, we should not propose such penalties unless we anticipate the courts using them. It is not satisfactory to hope that the courts will use their judgment if the sentence is too steep. It is the job of legislators to legislate and to ensure that when we set maximum sentences, we are prepared to see them carried out.
If we are not prepared for that, it is incumbent on us to legislate for appropriate sentences and to take the earliest opportunity—which is afforded by the selection of the amendment—to legislate for equality in sentences relating to offences that have been legalised for certain people but remain illegal in other cases.
Various sentences apply to gay men and their sexual activities, but do not apply to heterosexuals. In the Bill the Government refer to consequential amendments affecting sentences, but they have not grabbed the bull by the horns and tackled all the discriminatory sentences that exist, nor have they adjusted the scheduling of the sentences to the provision that they are seeking to enact, with support from those on the Liberal Democrat Benches and across the House.
If one was decriminalising activities between the ages of 18 and 16 under certain circumstances—what those circumstances are falls outside the scope of the clause—one would expect to see the sentencing schedule amended to replace the word "eighteen" by "sixteen", where it applies.
If one considers the sentencing provisions that the Bill and my amendment seek to amend, under the Sexual Offences Act 1956, buggery or attempted buggery between a man and a person under the age of 16 is an offence—that is for consensual buggery—punishable by life imprisonment. For the similar heterosexual offence of unlawful sexual intercourse with a girl under the age of 16, the maximum sentence is two years.
There is a provision for a life sentence for unlawful sexual intercourse with a girl of 13 years of age or less, and that is an appropriate maximum sentence, but there is no similar provision for anal intercourse between a man and a young male under the age of 13, which should also carry a life sentence. That could be on the basis that the age is clearly too young generally, or that the act could not be properly consensual at that age.
That is something that the Bill does not remedy and I am unable to do so with the amendment either, but I hope that the Government will say what they consider to be the right sort of sentencing framework in that area.
333 We therefore still have the discrepancy between a life sentence for consensual anal intercourse between a man and a person under the age of 16 generally, and unlawful sexual intercourse with a girl, where the maximum sentence is two years.
A further provision under section 12 of the 1956 Act, relating to buggery, that the Government are not amending is that, where a person is under the age of 18 and the accused man is over the age of 21, there is a maximum five-year sentence. There is no equivalent age provision for unlawful sexual intercourse with a female, so the two years still applies as the maximum sentence, which is lower in this case.
If the Government were seeking to recognise that the law had changed in respect of buggery and attempted buggery, they might have reduced the age in that clause from 18 to 16. That clause also covers buggery with an animal which attracts a life sentence; otherwise the offence attracts a sentence of two years. That is a hotchpotch, and my amendment seeks to recognise that the Government have not even started to address it in this legislation; it is vital that they do so.
As drafted, without the amendment, there is no change in the Bill's sentencing provision for buggery, which is surprising, as the age of 18 is written into the schedule. In section 13 of the 1956 Act, which is covered by the clause by virtue of its reference to section 1 of the Sexual Offences Act 1967, which in turn covers section 13 of the 1956 Act, which concerns gross indecency, one can detect another inconsistency in the current law between men and women. First, gross indecency is an offence which can apply only to men. There is no similar provision for unlawful consensual sex short of sexual intercourse with a female under the age of 16.
§ Mr. Desmond Swayne (New Forest, West)
A few moments ago, the hon. Gentleman said that it was vital that the Government should address those anomalies. Will he explain precisely why? I accept that the anomalies exist, but why it is vital that they should be dealt with escapes me.
§ Dr. Harris
I should have thought that the hon. Gentleman would agree—perhaps he does not—that where there is unjustified discrimination it should be removed at the earliest legislative opportunity. That is why the Labour party's general election manifesto said that, in the context of civil liberties, the party would seek to remove unjustified discrimination wherever it exists. We know that the Government use the words "at the earliest legislative opportunity" as an almost automatic caveat. We on these Benches understand that. This is the earliest legislative opportunity. If we believe that it is vital to correct discrimination that is unjustified—I do, and I believe that that view is shared by other hon. Members—it is clearly vital that this opportunity be taken.
Gross indecency attracts a sentence of two years except where the accused is over 21 and the other party is under 18, when the sentence is five years. The Bill makes the consequential amendment to that provision and changes 18 to 16. The maximum sentence for gross indecency is 334 still two years in all circumstances, except where the accused is over 21 and the other party is under 16. There is no equivalent age differential for unlawful sexual intercourse, or sexual activity falling short of that, with a female under the age of 16.
My amendment would change schedule 2, which relates to section 12 of the 1956 Act, dealing with the offences of buggery and attempted buggery, by substituting 16 for 18. The problem with the amendment, as the Minister will no doubt point out, is that it does not change the discrimination that exists. The Committee may be interested to know that I tabled a much broader amendment that would match exactly, for consensual offences, the maximum sentence for homosexual offences with the equivalent sentence for heterosexual activity. That fell outwith the scope of the clause, however, and cannot be discussed on the Floor of the House today.
I understand that, but even if the Government had made the obvious consequential amendment and substituted 16 for 18, buggery or attempted buggery of a person under 16 would attract a life sentence. Substituting 16 for 18, however, means that buggery of a person under 16, when the accused man is over 21, would attract a maximum sentence of five years. As the Minister is aware, those two are inconsistent.
§ The Minister of State, Home Office (Mr. Paul Boateng)
So why table the amendment?
§ Dr. Harris
The Minister asks a reasonable question. I had hoped to make it clear that I question why the Government could not have introduced a wider measure to achieve equality between homosexuals and heterosexuals for these consensual offences. People understand that that would be sensible, given that, over decades, we have not had an opportunity to change a law which hon. Members on both sides of the House agree is anomalous and discriminatory.
Many people think that the law is heinously discriminatory, because people suffer longer sentences for a similar act purely on the basis of their sexuality, not on the basis of whether the sentence is proportional to the offence. Society has moved on. It is time we addressed these issues; and the general concern is that, although the Government have initiated a review of sexual offences, we have no clear timetable for legislation, even with the caveat "parliamentary time permitting".
It is of grave concern that there may be no such legislation during this Parliament. We may be faced with a more illiberal, old-fashioned Government in the next Parliament. I hope that we will not be; it will not happen if our party is represented among them—although we cannot guarantee that, even to our most avid supporters.
There is also concern that, if the timetable is such that the only opportunity to legislate arises just before the next general election, the Government may be tempted to decide that there are priorities higher than the much needed reform of sexual offences legislation.
I have tabled the amendment to give the Minister the opportunity to explain how he intends to tackle the discrimination that exists in sentencing and to accept that, without widening this measure, legislation containing unjustifiable discrimination in sentencing will remain on the statute book. Although I will not push the amendment 335 to a vote, I should be grateful if he responded to the points that I have made, as I informed him of them well in advance.
§ Mr. Boateng
This is truly a probing amendment, and I shall deal with it in that way.
The hon. Member for Oxford, West and Abingdon (Dr. Harris) presents an amendment that is fundamentally flawed. Its effect would be to create a gross anomaly. He claims that he tabled it to highlight the fact that there are numerous anomalies in current legislation. We have long accepted that there are anomalies in the law relating to sexual offences, which is precisely why we have determined to establish an inclusive review of sexual offences that reflects the broad range of opinions on those issues. The review will draw on academic and legal expertise, on our faith communities and on practical good sense—indeed, common sense—in approaching those issues.
We must ensure that we have a rational and comprehensive system of law relating to sexual offences with, at its heart, the protection of vulnerable people. The Committee upstairs has spent a considerable time debating that, and we shall address the issue this afternoon. Indeed, that issue motivated us to introduce this legislation. We want to ensure, first, that we have equality before the law and, secondly, that we do everything in our power to protect vulnerable people who are prone to the depredations of those who would abuse their trust. The Bill deals with those two separate issues.
Clause 1 has a simple objective: to bring about a change based on the principle of equality. It makes the age of consent in England, Wales and Scotland 16, and in Northern Ireland 17, for homosexual as well as heterosexual activity.
There are anomalies and inconsistencies in the way the criminal law treats heterosexuals and homosexuals. We shall ensure that the review deals with those anomalies and that the protection of children and vulnerable people from those who would abuse them is central to the objectives of the system of penalties. We look to the sexual offences review to guide us on that objective.
The hon. Member for Oxford, West and Abingdon seeks to obtain from the Government an undertaking that we will legislate in the course of this Parliament. He will realise that I cannot give such an undertaking. I am prepared to tell him, however, that we intend to carry out the review within 12 months. It will be done with due expedition and, as I said, in an inclusive way that seeks to stimulate an informed public debate on those issues. We shall then consider the outcome of the review. That, in turn, will be subject to a proper consultation process and, in due course, legislation will be introduced.
That is how we intend to proceed. It is right that we should proceed in that way—with expedition, but at the same time ensuring that, at every stage, this vital area of the law is subject to proper reflection and consideration. Wide consultation is essential if we are to obtain a public consensus around a rational system of sexual offences law. We must tackle existing anomalies, but above all we must protect children and vulnerable people.
336 We oppose the amendment for the reasons I have given. It is technically flawed, and would create yet another unconscionable and unacceptable anomaly. Were the hon. Gentleman to push the amendment to a vote, our recommendation to the House would be to reject it. The House has heard the points that he has made, and he has heard me accept that there are anomalies and say that they will be considered by the sexual offences review. In the light of that, and of the amendment's obvious technical flaws, I hope that he will withdraw it.
§ Dr. Harris
Throughout the Minister's reply, he did not accept that the current sentencing provisions are discriminatory: he said that they are anomalous. They are clearly anomalous, but does he accept that they are discriminatory? A 22-year-old man who is convicted for unlawful sexual intercourse with a girl of 15 faces a two-year maximum sentence, whereas a man of 22 who has unlawful anal intercourse with a young male of 15 can be given life imprisonment. If all the other circumstances of the case are broadly similar, does the Minister think that such disproportionality based only on the different sexuality of the two men is acceptable? Is it not discriminatory?
I shall give the Minister an opportunity to intervene to explain whether the Government accept that the present sentencing provisions discriminate against homosexuals. If he remains silent, it is difficult for people to have confidence that the review will deal with such unjustifiable discrimination.
§ Mr. Boateng
I do not want to be churlish so early in the proceedings, but I thought that I had made it clear that the purpose of the review is to address undoubted anomalies in the legislation. Among those anomalies is the obvious discrimination in the sentencing legislation, and we are addressing those issues. We have asked the review body to deal with them, and we shall reflect on the outcome of the review. It is right that we should do that.
We should recognise the importance of approaching this matter holistically and rationally. I hope that the hon. Gentleman will accept that we are acting in good faith on this matter so as to ensure a proper debate and discussion of the issues and anomalies that he has identified with some skill.
§ Amendment, by leave, withdrawn.
§ Dr. Harris
I beg to move amendment No. 2, in page 1, line 9, at end insert—'( ) In section 12 of the Sexual Offences Act 1956 (buggery)—
- (a) at the beginning of subsection (1), there shall be inserted the words "Subject to subsection (1D) below"; and
- (b) after subsection (1C), there shall be inserted the following subsection—(1D) No proceedings shall be taken under this section against a person under the age of sixteen where the other party has at the time of the offence attained the age of sixteen.337( ) In section 13 of the Sexual Offences Act 1956 (indecency between men)—
- (a) at the beginning, there shall be inserted the words "(1) Subject to subsection (2) below"; and
- (b) at the end, there shall be inserted the following subsection—(2) No proceedings shall be commenced under this section against a person under the age of sixteen where the other party had at the time of the offence attained the age of sixteen.".'.
§ The Chairman
With this, it will be convenient to discuss amendment No. 6, in page 1, line 20, at end insert';and after subsection (11) there shall be inserted the following subsection—( ) No proceedings for any offence under subsection (5) above which consists of committing a homosexual act shall be commenced against a person under the age of sixteen where the other party had at the time of the commission of the offence attained the age of sixteen.".'.
§ Dr. Harris
I intend to brief, because other hon. Members want to contribute, and I shall leave it to them to develop some of the points. The amendment deals with discrimination in the culpability, chargeability, prosecutability, convictability, sentenceability and imprisonability of the younger person for consensual, illegal acts.
Clause 1 seeks to reduce the age of consent for homosexual sex—which we support. It will ensure that, in many circumstances, although not all, homosexual sex above the age of 16 is legal between two consenting people. However, glaring discrimination remains, because the younger person whom we are seeking to protect through these sexual offences measures is made a criminal by virtue of the same Act that makes him a victim. The provisions of the clause could be amended by this or a similar amendment.
There are significant jurisprudential problems, and it is important that the Government accept the effect of the amendment. There are problems with the philosophy of criminalising a victim. We also have duties under the European convention on human rights. It is difficult to ensure that offenders are appropriately brought to book when the people who may be able to report offences are subject to criminal prosecution for the same acts that have made them a victim. Surely that will deter people from either seeking help or resorting to the impact of the law. The lack of a provision such as the one I suggest is a glaring omission in the Bill.
A girl who has unlawful sexual intercourse committed against her when she is under 16 cannot be charged with the offence. At the end of the last century, the Tyrell case, which is quite well known in case law, showed that she could not be successfully prosecuted—even if she was the instigator—for aiding and abetting the offence. I consider that entirely appropriate: men, especially older men, must take responsibility for their actions, and must not be able to pass off age-of-consent offences as the responsibility of the younger party. It is vital for that anomaly to be removed. I use the word "vital" again for the benefit of the hon. Member for New Forest, West (Mr. Swayne).
In the Sutherland judgment, the European Commission of Human Rights said that part of the problem with British law was the provision whereby the younger party was 338 criminalised, and the effect of that criminalisation was disproportionate to whatever society wished to achieve. I think that both sides of the age-of-consent argument will agree that the anomaly must be removed, that we must decriminalise victims of the offence and that this is the right legislative opportunity for such a move. We can act now, in Committee, or at least at some point during the Bill's passage. That will achieve the Government's two aims, which—as both the Secretary of State and the Minister have eloquently conveyed—are equality and the protection of young people. I ask the Government at least to take on board an amendment such as this.
§ Mr. David Borrow (South Ribble)
Unlike my speech on Second Reading, this speech will be brief.
I support the amendment for a number of reasons. Since 1967, legislation on this subject has always started from the standpoint that any sexual activity between males is illegal and wrong; it has merely decriminalised activity in certain regards. It has never introduced an age of consent in the sense that is recognised in the case of heterosexual relationships. That applies to the Criminal Justice and Public Order Act 1994, and to this Bill. The amendment would introduce the protections for the younger party in consensual sex between someone below the age of consent and someone above that age that already exist for heterosexuals.
Twenty-odd years ago, I saw a booklet produced by the Campaign for Homosexual Equality, which dealt with the discrimination in the gamut of laws affecting gay men. The issue is complex, and I do not suggest that the Bill is necessarily the right way in which to put things right. I also realise that Ministers are conducting a sexual offences review, during which a number of the problems and anomalies will be examined. However, following the Euan Sutherland decision the Government promised to amend the law in two ways. That is why we are considering the Bill.
The first way in which the law needed to be amended related to the age at which it became an offence to engage in sexual activity. That is why we are equalising the age of consent at 16 in England and Wales and 17 in Northern Ireland. Secondly—this has not been referred to generally, although the hon. Member for Oxford, West and Abingdon (Dr. Harris) has referred to it—there was the penalising and criminalising of the person who is under the age of consent. It is essential that, if we are to respond properly to the Euan Sutherland judgment, we ensure that the Bill deals not only with the equalisation of the age of concept, but with the criminalisation of those under the age of consent. I will leave it there.
§ Mr. Andrew Rowe (Faversham and Mid-Kent)
I trespass into the minutiae of the discussion with some diffidence because, unlike the hon. Members for Oxford, West and Abingdon (Dr. Harris) and for South Ribble (Mr. Borrow), I have not made a detailed study of the case law and the consequences thereof.
I have three points to make. The first is that there is a curious ambiguity around the word "consensual" The proper meaning of the word is that there is an equal readiness by both parties to indulge in the behaviour, yet there is an understandable and proper anxiety that, where one party is older than the other—and particularly where the younger one is below the age of 16—there is a serious 339 risk of pressure of varying forms being put on the younger one, so that, although the appearance is given of consent, in practice, it is a reluctant consent.
§ Mr. Borrow
Given that there would be pressure by the older person on someone under the age of 16 to become involved in sex, does the hon. Gentleman recognise that criminalising the younger party in that relationship would make it less likely that he would feel able to report and to seek the protection of the legislation, and that he would be more likely not to report the offence because of the fear that he had committed a criminal offence and could be charged? Instead of protecting the younger person, the measure would make it more difficult for him to be protected.
§ Mr. Rowe
The hon. Gentleman, perhaps inadvertently, tries to rush me through my remarks. I was going to move on to that matter. It is important to be clear that the term "consensual" carries within it the ambiguity that, where there is a disparity in age, the younger person may appear to have given consent, but, if he had been genuinely free to decide on his behaviour, might have refused that consent.
On my second point, I share the hon. Gentleman's view that to criminalise the younger party when he is under 16 for such behaviour—which allegedly was consensual, but may not have been—makes it harder for him to seek the protection and advice that we all wish to make available to him. That is the view of most of the professional counsellors and services working in the sector.
§ Mr. Rowe
My hon. Friend has a cynical view of the professions. Sometimes he is not altogether unjustified, but if we are to proceed at all rationally, we have to allow that people who have devoted most of their working lives to assisting young people to work their way through the complexities and confusions of their sexual behaviour probably have a superior contribution to make; it is certainly superior to the one that I make. I am prepared to accept their view that criminalising the behaviour of the younger, perhaps reluctant, party does not help to solve the problem. Therefore, I have considerable sympathy with the amendment.
The third point is a more general one. It goes back to a debate that the Minister of State, Home Office had in front of what in those days, before the change of name, was called the all-party group for children. The group, of which I am an officer, believes strongly that girls below the age of consent who are engaged in prostitution should be regarded as victims of abuse and not as criminals in some conniving way. I very much hope that there will be a change in the law to that effect.
From time to time, the law has a useful declaratory purpose, but its interpretation is also important. Today's debate provides an opportunity to improve the law and I support the amendment. Police forces and prosecution services have become much more aware of the dangers of criminalising young people, and only a few prosecutions take place.
Finally, we talk rightly and properly about protecting young people from predatory behaviour by older people. Sadly, however, there is an increasing number of severely 340 damaged young people whose only recourse, when looking for excitement, comfort or whatever, is to try to seduce older people sexually. It is important to put on the record the fact that teachers and other adults are often put in a difficult position by young people to whom they are trying to extend care and affection when, because of the damage that they have endured during their young lives, their response is to try to titillate the older person into going too far. When we talk about protection, we should recognise that older people—particularly when the opportunity for blackmail or damaging someone's career is taken into account—need protection, too.
§ Mr. Swayne
The hon. Member for Oxford, West and Abingdon (Dr. Harris) said that he chose his words carefully when he said that it was vital that the amendment should be carried so that the anomaly that he identified would be addressed. I shall use the same word. I think that it is vital that the anomaly should remain and I shall explain why.
The anomaly that the hon. Gentleman identified is that a girl under 16 who has consensual sex with a man over 16 is not prosecuted for having given her consent and indulged in that illegal activity, whereas a boy under 16 who has consensual sex with a man, or indeed a boy over 16, may be prosecuted for having given his consent. That is an important distinction and an important principle because it shows that the law continues to identify a clear difference between homosexual activity and heterosexual activity—between a girl under 16 exploring her sexual desires and a boy under 16 exploring an unnatural sexual desire. It is important that the law should send a message that for a boy under 16 to explore sexuality in that way is not acceptable, is illegal and carries a penalty. We should send the message that the two life styles are not equivalent.
I realise, that I am now treading on the subject matter of the debate on Second Reading, but I think that we should revisit the principles dealt with in both amendment No. 2 and the earlier debate. In the Second Reading debate, hon. Members on both sides of the House—although rather more Labour Members than Opposition Members—accepted the principle that one's sexual proclivity is fixed and determined, and that one can have no influence over it. I accept entirely the experiences described by Labour Members in supporting the principle. I do not dispute their experience, or say that they are wrong on the principle, but they painted an incomplete picture.
The experiences that were described in the earlier debate may be a valid description of the experience of some boys, whose sexual appetites and proclivities are fixed. Equally, I am aware of young men—young boys—under 16 who experience particular unnatural desires at a tender age, approaching 16, but are ashamed of those desires. They are appalled by their desires and repress them, and go on to outgrow them and live a perfectly normal life. They are ashamed and appalled by their desires because of the social pressures exerted by their peers, who say that it is not natural behaviour or something of which society approves.
Maintenance of the anomaly will therefore play an important role in sending a clear message, from the law and from society, that such behaviour is not a normal or 341 an acceptable way of life. The anomaly should therefore be maintained—so that the law's clear message is that it is an unnatural expression of human behaviour for young boys under 16 to explore their homosexual attitudes; that it is in no way an equally valid life style; and that young men are protected by the law from such exploration. Some young men will therefore never explore it, but outgrow it.
§ Mr. James Clappison (Hertsmere)
This has so far been an interesting debate. I should make it clear now that my remarks are very much personal ones. For Opposition Members the matters dealt with in amendment No. 2—as with the other matters we have considered in the Bill—are, the subject of a free vote. My remarks are therefore only a personal contribution to the debate.
I make it clear that my approach to the amendments is guided by a wish to give the strongest protection possible to children and young people. I have judged the entirety of the Bill by that same criterion. As a background to the amendments, I should say that, although the Bill aims to protect youngsters of 16 and 17 from abuse of a position of trust by an older person, it is fast emerging, as we consider the Bill, that that protection is far from comprehensive, that it contains many loopholes and anomalies, and that it could go much further than it does. That is most true of youngsters under 16, who are the subject matter of amendment No. 2. The Bill and its provisions on abuse of trust do nothing at all for youngsters under 16.
In the previous debate, I listened carefully to the Minister's comments on wanting to protect vulnerable people. I join him in that wish, and shall certainly support him in any reasonable endeavours to realise it. However, he will have to face the fact that those under 16, who are most in need of protection—the younger the person concerned, the greater the need for protection—will receive no protection from the Bill's provision. That is the criterion by which I judge the amendments.
The Utting report forms the background to today's debate. That catalogue of abuse and misery—which was chronicled by hon. Members on Second Reading—predominantly concerned youngsters under 16. That is the background against which I set the debates on the amendments.
Will the amendments help to protect youngsters under 16? It is obvious that the Committee is moving towards 16 as the age of consent. I think that it is a mistake, that 18 is more appropriate and that 16 is far too young. However, we must be realistic. This is a serious matter—we are talking about protecting young people—and we must see the best that can be done in the circumstances.
When the Bill is enacted and 16 becomes the age of consent, sexual relationships involving youngsters under 16 will be unlawful, as they are now. As the law will then stand, it will be unlawful for a person over 16 to have a sexual relationship with someone under 16. As I understand it, where such a relationship takes place, both persons will be involved in the unlawful act.
The amendment proposes that, in such a case, no proceedings shall be commenced against the party who is under 16. The argument made by the amendment's 342 supporters is that the person under 16 should be regarded not as the perpetrator, but as a victim. I know that feelings run high on that matter, and it is perfectly possible to have strongly held and legitimate views on the subject. However, it is important to judge the position of the 16-year-old against the criterion that I set out at the beginning of my speech—the need to protect them from older people.
The argument from the amendment's supporters is that the removal of any prospect of criminal proceedings for the younger party will make it more likely that the criminal offence committed by the older party will come to light. As has been said, in such cases, the sexual relationship is consensual. If it is not consensual, that is an entirely different matter and other serious criminal charges will be involved. I appreciate the remarks of my hon. Friend the Member for New Forest, West (Mr. Swayne) about the nature of consensuality.
In cases where the younger party has been a consensual party in the activity, if he comes to realise that what happened was wrong and unlawful, he has to face the prospect that there is a theoretical risk of prosecution—something that may even be pointed out to him by the older party concerned. I say that there is a theoretical risk of prosecution because it would appear that, in such cases, the younger party is only rarely prosecuted, although the position is not entirely clear.
I am not sure how much we should weigh that fact in the balance. On the one hand, it could be said that there is no need to change the law as the amendment proposes because such prosecutions are hardly ever brought. On the other hand, there remains the possibility of prosecution, however remote it may be. We must ask whether it is good to have a law in place that is only rarely enforced. For someone under 16, even a theoretical risk of prosecution is something that that party must take into account and be influenced by. I suppose that, the more law-abiding the person concerned, the more they would take that risk into account.
I would like a strong, credible and well-enforced legal framework put in place to protect young people. I am extremely keen to protect young people from unlawful sexual activity, and anal intercourse in particular, involving older people, especially when the older person is substantially more mature and inclined to exploit the younger person's youth and inexperience. Sadly, there are such people around. For anyone over 16 to commit the offence with an under-16-year-old is a serious matter, but it is even more serious when the older person is perhaps 27, 32 or even in his 40s.
The hon. Member for Oxford, West and Abingdon (Dr. Harris) referred to the case of Tyrell and the well-established legal position in respect of under-16-year-old girls in the offence of unlawful sexual intercourse. I listened with interest to the Minister's remarks on that subject. The low maximum sentence of two years for unlawful sexual intercourse with a girl of under 16 is a glaring anomaly in our law that has been there for many years. I make no party point, as the anomaly remained under Conservative Governments as well as Labour.
The Minister's remarks had an especial poignancy for me, as I can remember having exactly the same debate in proceedings on the Crime and Disorder Bill. We put 343 exactly the same remarks to the Minister who was in charge of that Bill and he in many ways accepted the spirit of our point that two years was far too low.
§ Dr. Harris
I saw the Minister nodding vigorously, as he did in Committee upstairs, at the suggestion that the maximum sentence of two years was too low; but one must be realistic. The offence is widespread, as we can see from the number of pregnancies, abortions and births among under-16-year-olds. If the hon. Gentleman is suggesting that we should lock up fathers—irresponsible and law-breaking as they may be—for up to five years, he may be going down a path that is the reverse of what we want to do.
§ Mr. Clappison
Given that the law has become so anomalous, with a maximum sentence for indecent assault of 10 years and for unlawful sexual intercourse of only two years, it is hardly surprising that the law is not being as vigorously enforced as it might be. I think that the latter offence is a very serious matter, especially when the older person is much more mature and experienced and is taking advantage of the girl in exactly the way that I have described someone taking advantage of a boy.
The Minister's predecessor said almost a year ago that there would be a review of the law on unlawful sexual intercourse and that the Government would put it right but that they needed to consider everything in the round and consult the experts. Here we are, a year later, having the same debate, and the law has not changed.
The legal authority of Tyrell goes back to the late 19th century. That well-known authority established that a girl under 16 cannot be guilty of aiding and abetting an offence of unlawful sexual intercourse, since the offence was created for her protection. I believe that there is merit in considering to what extent it is appropriate to take that approach for offences involving anal intercourse with a boy under 16. That is my personal view. We need to exercise some care in how we explore that approach, but I want to do what is best to protect the young person concerned.
We have to explore the matter with some care. It is my understanding that the amendment differs from the position established by the Tyrell case. Tyrell established that a girl under 16 commits no offence, whereas the amendment establishes that no proceedings should be brought. I do no more than note that there is a difference between those two positions. We need to be clear how the proposal fits in with other types of sexual offences.
It would appear that, even if the amendment were accepted, two youngsters who were both below the age of consent would still be liable to face proceedings. That is important, and we need to preserve that position. There should be no question of our moving towards a de facto reduction in the age of consent below 16. We should be concerned about protecting the younger person from abuse by the older person. The law in respect of unlawful sexual intercourse with under-16-year-olds needs to remain in place. The protection aspect needs to be borne in mind when we consider anal intercourse between someone under and someone over 16 years of age.
344 We need to be able to deal with every case, and we must think carefully about some of the rare and unusual circumstances that might arise.
§ Mr. Swayne
Has not my hon. Friend raised the possibility of a rare and unusual case in which there would be an incentive for a young man under the age of 16, who was seeking to explore his homosexual desires, to select a partner over the age of 16? He would then be absolved from any wrongdoing, whereas, if he selected someone who, like him, was under 16, he would be committing an illegal act.
§ Mr. Clappison
My hon. Friend makes a perfectly fair point. In that case, the law should protect the under-16-year-old from himself. The person over 16 should be aware of that and should face condign penalties for taking advantage of an under-16-year-old who was in that frame of mind.
I am concerned about the message that we might be sending. We must protect under-16-year-olds, not reduce the age of consent any further. As I said, I am concerned generally that we have reduced the age of consent too far and too fast. We have introduced one reduction in the age of consent hot on the heels of another. If the amendment is adopted, to avoid any possible misunderstanding, there has to be vigorous enforcement of that aspect of the law. An amendment like this has to go hand in hand with a vigorous approach and a strong and credible legal framework.
I am worried about the apparent change in the number of prosecutions brought against people over 21 for offences of buggery with males of under 16 years of age. There is at least a coincidence between a big reduction in the number of such prosecutions and the reduction in the age of consent. Figures from the House of Commons Library show that the numbers of prosecutions of over-21-year-olds for buggery with under-16s in 1993 and 1994—before the age of consent had been reduced—were 293 and 291 respectively. Since then, there has been a significant collapse in the number of such prosecutions. In 1995—the first year in which 18 was the age of consent—there were 151 such prosecutions; in 1996 there were 73; and in 1997 there 103.
§ The Second Deputy Chairman of Ways and Means (Mr. Michael Lord)
Order. Sedentary interventions from Members on the Front Bench do not help the debate.
§ Mr. Clappison
If we are to make a change in such a sensitive area of the law, affecting the legal position of under-16-year-olds, we must make sure that it goes hand in hand with vigorous enforcement of the law against older people minded to have sexual relations with younger people. That is vital. The figures show that a big change happened between 1993–94, when the age of consent was 21, and the period 1995 to 1997, when the age of consent was 18. The number of people over 21 prosecuted for having sex with people under 16 fell from 291 in 1994 to 73 in 1996 and 103 in 1997.
345 I want to ensure that any change such as is proposed in the amendment will not be accompanied by a change in the priority given to those prosecutions. If the amendment is accepted, the law must be enforced vigorously, because we should do all that we can to protect those under 16 from the attentions of those over 21.
Speaking purely personally, I hope that the law will be applied much more vigorously if the amendment is accepted. However, there is merit in exploring the extent to which the amendment would afford greater protection to people under 16. That is the criterion by which I judge it.
§ The Secretary of State for the Home Department (Mr. Jack Straw)
There has been general, although not universal, approbation in this debate for the principle behind the amendment, which was expounded by the hon. Member for Oxford, West and Abingdon (Dr. Harris) and by my hon. Friend the Member for South Ribble (Mr. Borrow). Most hon. Members who have spoken have found it unacceptable that the person under 16 who engages in a homosexual act or in an act of buggery, in which the older party is 16 or older, should end up being criminalised, instead of being regarded as the victim.
I am glad to note that general view. I am also glad to have been informed that a number of children's charities are worried about the degree to which under-16-year-olds, if we leave the law as it is, will end up being considered to have committed a criminal offence, rather than being regarded as victims. I am told by my officials that the National Society for the Prevention of Cruelty to Children, Barnados and the Children's Society have all said—and have allowed me to say in public—that they would support the decriminalisation of the younger party in those circumstances.
Several other anomalies have been debated, both upstairs in Committee and on the Floor of the House. Although we are seeking equality in terms of the age of consent, the law starts from very different points for males and females. Also, some aspects of the European convention on human rights, and other factors, mean that we do not start from a position that is wholly symmetrical, and I doubt whether we will end at such a position. We consider that it is appropriate for most of the remaining anomalies to be examined in the review of sexual offences that my hon. Friend the Minister of State mentioned earlier.
However—to return to the amendment and the parallel proposals for Scotland and Northern Ireland—in the interests of protecting children, we think that it would be sensible to take action along the lines proposed, in the course of the Bill's passage through the House. We accept the principle behind the amendment. We also acknowledge the cautious point made by the hon. Member for Hertsmere (Mr. Clappison), who said that we must be careful and fully explore how the amendment would work.
Therefore, if it is acceptable to the Committee, I propose that we examine the principle behind the amendments between now and the time when the Bill comes back on Report. My hon. Friend the Minister of State will have discussions with the hon. Members who tabled the amendment, if they so wish, and those 346 discussions may also include the hon. Member for Hertsmere or any other hon. Member who might wish to take part. The aim will be to produce wording that is acceptable and technically competent and meets what I think is the will of the Committee. Those amendments can then be tabled when the Bill comes back on Report. If the hon. Member for Oxford, West and Abingdon disagrees with them, he can table his own amendments, on which the House will have an opportunity to vote at that stage.
I hope that that is an acceptable way of proceeding in circumstances of general—not universal—approbation for what is proposed. We must however ensure that the wording is right and that the offences that we are eliminating deal only with this mischief and do not raise other mischief in their wake.
§ Dr. Harris
I give the Secretary of State a very warm welcome for those remarks, and thank him for his consideration of the broad principle. I am the first to accept that the drafting of the amendments is almost certainly incorrect. Indeed, we had such trouble drafting an amendment to pertain to Northern Ireland that it was not considered suitable to be selected for debate. So, of course we understand the need to return to the matter on Report. I am sure that the hon. Member for South Ribble (Mr. Borrow) will join me in recognising that the work on considering the anomaly and bringing forward suggestions was not really done by us, but by organisations outside the House. I thank them for their work, and in doing so, thank the Secretary of State once again for his words. I beg to ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Mr. Richard Allan (Sheffield, Hallam)
I beg to move amendment No. 4, in page 1, line 15, at end insert—